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NATIONAL WILDLIFE FEDN. & EDF v. BENN

June 12, 1980

NATIONAL WILDLIFE FEDERATION and ENVIRONMENTAL DEFENSE FUND, Plaintiffs, against CLARK H. BENN (in his official capacity as District Engineer, Department of the Army, New York District, Corps of Engineers), and JOHN W. MORRIS (in his official capacity as Chief of Engineers, Department of the Army, Corps of Engineers), and CLIFFORD L. ALEXANDER, JR. (in his official capacity as Secretary, Department of the Army), Defendants.


The opinion of the court was delivered by: TENNEY

This action involves the ocean dumping of dredged materials from the New York Harbor area into the Mud Dump Site, an ocean dumping ground in the New York Bight located off the coasts of New York and New Jersey. The plaintiffs are two nonprofit corporations concerned with the conservation and preservation of natural resources. The defendants are the District Engineer of the Army Corps of Engineers for the New York District ("NYD"), the Chief of Engineers for the Army Corps of Engineers ("Corps"), and the Secretary of the Army ("Secretary"). The plaintiffs contend that the defendants have failed to comply with various statutory and regulatory requirements in conducting federal programs and licensing private projects that involve the ocean dumping of dredged materials. As a result of developments that have ensued since this action was commenced, several of the plaintiffs' original charges have been dismissed pursuant to a stipulation between the parties or become moot. Three basic claims remain in this action. The plaintiffs contend that the Corps is violating federal statutes and regulations by: (1) pooling and averaging the results of bioassay tests that are designed to measure the toxicity of dredged soil in terms of the mortality rates of the tested species; (2) using a 10% factor in determining what mortality rate represents a significant undesirable environmental effect; and (3) treating individual ocean dumping projects as isolated ventures and not requiring a programmatic Environmental Impact Statement ("EIS") for the entire area. The defendants deny these charges. They also claim that the plaintiffs' claims are not "ripe for review" and that the Environmental Protection Agency ("EPA") is a necessary party in this action.

The plaintiffs' motion for summary judgment and the defendants' motion to dismiss or for summary judgment are now before the Court. The Court finds that the plaintiffs' claims are ripe for review and can be resolved in the absence of the EPA. After reviewing the extensive documents and affidavits submitted by the parties, the Court concludes that the defendants should be granted summary judgment with respect to the first two claims described above and the plaintiffs' motion for summary judgment should be granted on the third.

Background

 The Marine Protection, Research and Sanctuaries Act of 1972 ("MPRSA"), 33 U.S.C. §§ 1401 et seq., was enacted to "regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." Id. § 1401(b). The statute was amended in 1974 to implement the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter ("Convention"), which had recently been ratified by the United States. Pub.L. No. 93-254, 88 Stat. 50 (codified at 33 U.S.C. §§ 1401 et seq.). The Administrator of EPA ("Administrator") is authorized under MPRSA to issue permits for ocean dumping "except in relation to dredged material, . . . where the Administrator determines that such dumping will not unreasonably degrade or endanger human health, welfare, . . . or the marine environment . . . ." 33 U.S.C. § 1412(a). The Administrator is directed to establish and apply "criteria" for reviewing permit applications and the statute delineates numerous considerations that should be reflected in these criteria. Id. *fn1" Additionally, MPRSA provides that in developing and revising the criteria, the Administrator should apply the standards binding on the United States under the Convention. *fn2"

 Dredged material, defined as "any material excavated or dredged from the navigable waters of the United States," id. § 1402(i), is treated separately in the statute. Section 1413(a) provides that the Secretary "may issue permits, after notice and opportunity for public hearings, for the transportation of dredged material for the purpose of dumping it into ocean waters, where the Secretary determines that the dumping will not unreasonably degrade or endanger human health, welfare, . . . or the marine environment . . . ." In making this determination, the Secretary must apply the criteria established by the Administrator relating to the effects of dumping. Id. § 1413(b). The Secretary is directed to make independent determinations regarding the need for dumping, appropriate locations for the dumping, and other possible methods of disposal. Id. Prior to issuing any permit, the Secretary must notify the Administrator, and, if the latter disapproves, the permit cannot be granted. Id. The Secretary cannot issue a permit that does not comply with the criteria and restrictions established by the Administrator pursuant to section 1412 unless the Administrator grants a waiver for that specific case. Id. In connection with federal projects involving dredged material, the Secretary may, in lieu of the permit process, issue regulations requiring the application of the same criteria and procedures that are applied to the issuance of permits for other projects. Id. § 1413(e). The Secretary's permit authority has been formally delegated to the Corps' Chief of Engineers and, through him, to the District Engineers, the Chief's authorized representatives. 33 C.F.R. § 324.4. NYD is responsible for regulating dredging and dumping operations in New York Harbor.

 The Final Revision of Ocean Dumping Regulations and Criteria ("Criteria") were issued on January 11, 1977. 42 Fed.Reg. 2462, 40 C.F.R. §§ 220-229. Part 27, entitled Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials, constitutes the criteria established pursuant to section 1412 of MPRSA and applies to all dumping operations. Subsection 227.13 deals specifically with dredged materials that are described as consisting "primarily of natural sediments or materials which may be contaminated by municipal or industrial wastes or by runoff from terrestrial sources such as agricultural lands." In accordance with MPRSA, the Criteria state that the ocean dumping of dredged materials is to be regulated by the Corps, "using the criteria of applicable sections of Parts 227 and 228." 40 C.F.R. § 227.13. Part 228 concerns "the evaluation of (ocean dumping proposals) in relation to continuing requirements for effective management of ocean disposal sites to prevent unreasonable degradation of the marine environment from all wastes being dumped in the ocean." Id. § 228.1. The EPA is directed to designate areas where dumping of dredged materials will be allowed, subject to the specific conditions of permits issued by the Corps. Id. § 228.4(e). Both general and specific criteria for site selection are described. Id. §§ 228.5, 228.6.

 Detailed procedures for conducting the environmental impact tests prescribed by the Criteria were developed by a joint EPA-Corps Technical Committee. See id. § 227.27(b) (footnote reference to forthcoming manual jointly prepared by both agencies). The report issued by the Committee in July 1977 is entitled Ecological Evaluation of Proposed Discharge of Dredged Material into Ocean Waters and is commonly referred to as the "Implementation Manual." Memorandum in Support of Plaintiffs' Motion for Summary Judgment ("Plaintiffs' Memorandum I"), Appendix E. According to the Manual's Introductory Statement, it "attempts to provide a balance between the technical state-of-the-art and routinely implementable guidance for using the procedures specified in the (Criteria) and is intended to encourage continuity and cooperation between (Corps) Districts and EPA Regions in evaluative programs for . . . permit activities. . . . The manual is not intended to establish standards or rigid criteria." This lengthy report includes: summaries and discussions of the procedures for ecological evaluation of dredged material required by the Criteria; tests to implement these procedures; sample collection and preservation processes; evaluation procedures; calculations; interpretive guidelines; and supporting references. See Implementation Manual at 2. By its own terms, the Manual "cannot stand alone." It is "imperative" that the supporting references be consulted and that both the Criteria and Manual be read in their entirety before any tests or evaluations are commenced. Id.

 In November 1977, NYD issued a document referred to as the "NYD Guidance Document," which was based on the Criteria and delineated the test results that must be furnished to the Corps by any applicant seeking a permit for ocean dumping. Affidavit of Dennis J. Suszkowski, sworn to October 20, 1978, Exh. J. As a result of discussions between NYD and the EPA regarding the refinement of certain testing techniques, a revised document was drafted and became effective on February 15, 1979. Supplemental Affidavit of Dennis J. Suszkowski, sworn to February 5, 1979, PP 2, 3, 6. The modifications incorporated in the revised NYD Guidance Document resolved several of the charges originally made by the plaintiffs in their complaint. See id. P P 9-12.

 The plaintiffs' remaining claims do not challenge the revised NYD Guidance Document or the Implementation Manual. Nor do the plaintiffs contest any single ocean dumping permit that has been approved by the Corps. Instead, the plaintiffs contend that NYD has granted permits and approved projects without adhering to testing and evaluation standards established by the Criteria, either expressly or by reference to the Convention. While the plaintiffs view the Manual as "a laudable effort to develop routine procedures for implementing the Criteria," they contend that "where it intrudes into the area of specifying the regulatory consequences of individual tests, it begins to stray beyond the competence of the scientists who prepared it." Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss and/or for Summary Judgment ("Plaintiffs' Memorandum II") at 2-3. The plaintiffs thus assert that the Implementation Manual cannot be followed or relied upon when it is inconsistent with or contradicts the Criteria. The Criteria constitutes "the legal standards against which the Corps' decisionmaking must be evaluated," and the plaintiffs argue that "the Corps is invested with no greater ability to construe the Criteria than the Court." Id. at 3. Finally, the plaintiffs state that "to the extent that the views of any agency are entitled to special attention or deference by this Court . . ., it is the (EPA), as the author of the Criteria, and not the (Corps), whose views should be considered." Id. at 3-4.

 The plaintiffs also allege that the defendants have violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347, by failing to draft a programmatic EIS that would study and evaluate the cumulative environmental effects of continuously dumping dredged material in the Mud Dump Site. NEPA provides that all federal agencies "shall include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

 
(i) the environmental impact of the proposed action,
 
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented.
 
(iii) alternatives to the proposed action,
 
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
 
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

 Id. § 4332(2)(c). The obligations imposed by NEPA on federal agencies are more fully described in various orders and regulations. See, e.g., Guidelines of the Council on Environmental Quality, 40 C.F.R. Part 1500 ("CEQ Guidelines"). Among the "actions" that may require the preparation of an EIS are new and continuing projects, either directly undertaken by federal agencies, or conducted pursuant to a federal permit. 40 C.F.R. § 1500.5; 33 C.F.R. § 209.410(e). The ocean dumping of dredged material can constitute such an action. See Natural Resources Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975); Wisconsin v. Callaway, 371 F. Supp. 807 (W.D.Wis.1974); 33 C.F.R. § 209.410(e).

 The defendants have prepared several EIS's relating to individual federal and private dumping projects. The plaintiffs assert, however, that the Corps' usual practice is to issue an Environmental Assessment, a document that is not subject to public and inter-agency review and comment. The plaintiffs contend that these project-specific reports are "woefully deficient" and do not consider the cumulative impact of ocean dumping. In their view, the defendants have violated the mandate of NEPA by failing to treat the Mud Dump Site as a single location subject to federal action requiring the preparation of an area-wide EIS.

 The defendants, in turn, contend that they are in full compliance with MPRSA, the Criteria, and NEPA. NYD claims that it adheres to the Implementation Manual which represents an authoritative interpretation of the Criteria by the Corps and EPA. According to the defendants, the decisions of agencies responsible for administering MPRSA and the Criteria are entitled to great deference and weight, particularly when the issues involve "scientific techniques barely out of the research phase." Defendants' Memorandum of Law in Reply to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss and/or For Summary Judgment ("Defendants' Memorandum I") at 12. The defendants also contend that the plaintiffs' demand for a programmatic EIS must fail because it is made in the "abstract" and is not addressed to any particular proposals or projects. In their view, the plaintiffs cannot challenge NYD's failure to draft a comprehensive EIS without singling out some pending or issued permit for which only an individual and allegedly deficient environmental statement or assessment was prepared.

 Apart from their defense on the merits, the defendants argue that the plaintiffs' claims are not ripe for review and cannot be entertained in the absence of the EPA, which the defendants allege is a necessary party to this action. After addressing these preliminary contentions and rejecting defendants' contentions, the Court turns to the three basic claims raised here. The Court concludes that neither NYD's practice of pooling bioassay test results nor its use of a 10% factor in determining significant adverse environmental impact violate the Criteria or the Implementation Manual. However, the Corps' failure to develop a programmatic EIS describing the cumulative impact of ocean dumping in the Mud Dump Site does constitute a violation of NEPA and related regulatory provisions.

 Ripeness

 
(T)he ripeness doctrine('s) . . . basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

 Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967).

 In determining whether a claim is ripe for review, a court must evaluate both "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S. Ct. at 1515.

 The defendants argue that the plaintiffs' claims fail to satisfy this standard. They contend that the plaintiffs are litigating on the basis of hypothetical facts and speculation about future agency action because no specific permit or project has been challenged. The defendants assert that the Corps' regulatory program is extremely complex and subject to constant reevaluation and revision. Therefore, according to the ...


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