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BERGEN CTY. UTILS. AUTH. v. UNITED STATES EPA

February 10, 1981

BERGEN COUNTY UTILITIES AUTHORITY, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, New Jersey Department of Environmental Protection and Hackensack Meadowlands Development Commission, Defendants



The opinion of the court was delivered by: SAROKIN

INTRODUCTION

In these times, government has no greater responsibility than to protect the environment, and to do so in such a manner that neither the method nor the site will prove to be hazardous in the years to come. We cannot permit any more toxic time bombs or legacies of poison.

 Cases involving the resolution of environmental problems frequently follow the slow and arduous path of this litigation. Having recognized the need to prohibit or control sewage and toxic wastes, local government supports the solution so long as it is far distant. It is understandable that no community wishes a sewage treatment plant or toxic waste dump within its borders. But if we are to solve the problems of pollution, locations must be found. Certainly they should be in areas of the least impact, but they must be somewhere!

 No party to this action challenges the ultimate goal of terminating ocean dumping. As in all such matters, however, governmental agencies wring their hands over the problem and then suggest that the solution or that which impedes it lies elsewhere. The extension of the present deadline will do nothing more than prolong the time for local action. The problem will remain; the alternatives are known; the possible locations ascertained.

 All that remains is the necessary initiative and resolve to meet and solve the problem. The present deadline provides the impetus; an extension will dissipate it. Whatever bureaucratic wrangling would occur one year hence, may as well occur now. Plaintiff's claim that someone (other than itself) is responsible for the delays neither justifies nor necessitates their continuance.

 It may be that despite the efforts of all those concerned, no facility will be in place in the immediate future. Permits for continued dumping may be a practical necessity. But the EPA must retain the leverage necessary to combat local apathy and provincialism. Local self-interest may have to give way to the common good. All of those in authority must utilize their best and immediate efforts toward that end.

 I. FACTUAL BACKGROUND

 BCUA commenced this action on May 15, 1980, seeking a writ of mandamus ordering EPA to issue to it an ocean-dumping permit valid through December 31, 1981, and seeking to enjoin enforcement against it of the Marine Protection, Research, and Sanctuaries Act ("MPRSA"), 33 U.S.C. § 1401 et. seq. (1978), until completion of state litigation between BCUA and the Hackensack Meadowlands Development Commission ("HMDC"). *fn2" The within complaint raises the issues of whether the denial by EPA of plaintiff's application for an ocean-dumping permit was arbitrary and capricious and whether it is appropriate for this court to issue a writ of mandamus ordering EPA to issue an ocean-dumping permit to BCUA. Cross-motions have been filed for summary judgment. Jurisdiction is based upon 28 U.S.C. § 1331 and the federal mandamus statute, 28 U.S.C. § 1361.

 BCUA owns 130 acres of land in Little Ferry, New Jersey, which was obtained through condemnation in 1949 pursuant to N.J.Stat.Ann. § 40:14B-20(5) (West Supp.1980). *fn3" This site was selected to serve as a sewage treatment plant and to allow for future expansion of such a facility. The agency presently treats raw sewage at the Little Ferry plant erected at said location. The sludge derived therefrom is dumped into the Atlantic Ocean.

 A growing awareness of the immediate and severe dangers inherent in so disposing of waste led to the adoption in 1972 of the MPRSA and subsequently to promulgation of regulations by EPA pursuant to that Act. See S.Rep.No.92-451, 92d Cong., 1st Sess. 11-12 (1971), reprinted in (1972) U.S.Code Cong. & Adm.News at 4235-36. In enacting the landmark legislation Congress recognized that the millions of tons of waste and toxic materials dumped into the ocean each year can produce untold harm to natural and human life. Id. at 4238. The Senate Report quoted the findings of the Council on Environmental Quality's 1970 report to the President:

 
Ocean-dumped wastes are heavily concentrated and contain materials that have a number of adverse effects. Many are toxic to human and marine life, deplete oxygen necessary to maintain the marine ecosystem, reduce population of fish and other economic resources, and damage aesthetic values ....
 
The Council's study indicates that the volume of waste material dumped in the oceans is growing rapidly because the capacity of land-based waste disposal sites is becoming exhausted in some coastal cities. Communities are looking to the oceans as a dumping ground for their wastes. Faced with higher water quality standards, industries may also look to the oceans for disposal. The result could be a massive increase in the already growing level of ocean dumping. If this occurs, environmental deterioration will become widespread.

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