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CLEAN OCEAN ACTION v. YORK

June 24, 1994

CLEAN OCEAN ACTION, a New Jersey non-profit corporation; THE AMERICAN LITTORAL SOCIETY, a New Jersey non-profit corporation, FISHERMAN's DOCK COOPERATIVE, INC., a New Jersey corporation, and UNITED FISHERMAN's ASSOCIATION, a New York non-profit corporation, THE CONFEDERATION OF THE ASSOCIATION OF ATLANTIC CHARTER-BOATS and CAPTAINS, INC., a New York corporation, Plaintiffs
v.
COLONEL THOMAS A YORK, in his capacity as District Engineer of the United States Army Corps of Engineers; GENERAL STANLEY T. GENEGA, in his capacity as Director of Civil Works of Army Corps of Engineers, ARMY CORPS OF ENGINEERS an agency of the United States; CAROL M. BROWNER, in her capacity as Administrator of the United States Environmental Protection Agency; WILLIAM J. MUSZYNSKI, in his capacity as Acting Regional Administrator of the United States Environmental Protection Agency; ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, a bi-state governmental agency, Defendants.



The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, District Judge

 A. Procedural Background

 Plaintiffs in this action are several environmental organizations and organizations representing fishing and boating interests. Defendants are the Army Corps of Engineers (the "Corps") and two of its officers, the United States Environmental Protection Agency ("EPA") and two of its officers, and the Port Authority of New York and New Jersey (the "Port Authority"). Plaintiffs challenge decisions of the Corps dated January 6, 1993 and May 26, 1993, issuing a permit to the Port Authority. The permit authorized the Port Authority to perform maintenance dredging of up to 500,000 cubic yards of sediment material from the Port Authority's Port Elizabeth and Port Newark facility in Newark Bay, and to deposit the material in the Atlantic Ocean in an area known as the Mud Dump.

 Although dredge materials had been deposited at the Mud Dump since 1914, dioxin has been discovered in the sediment and this created substantial environmental problems. The permit contained 25 special conditions designed to mitigate the adverse effects of the dioxin. Nevertheless, plaintiffs alleged that the permit was impermissibly granted and sought its revocation.

 On June 1, 1993, by order to show cause, plaintiffs sought a temporary restraining order and a preliminary injunction barring the maintenance, dredging and disposal of the dredged material. On June 7, 1993, after a second hearing, I denied the motion for a preliminary injunction. I directed the Port Authority (i) to establish that the permit was lawfully issued under the regulations adopted pursuant to the Marine Protection and Research Sanctuaries Act of 1972, 33 U.S.C. § 1413 ("MPRSA") either because the dioxin present in the sediment was only in trace amounts or because the granting of the permit was within an exception to 40 C.F.R. § 227.6(a) or (ii) failing to establish such lawful issuance of the permit, to pursue a waiver pursuant to § 225 of the regulations.

 On June 22, 1993, the Port Authority submitted a memorandum purporting to establish that the dioxin was either in trace amounts or was within a regulatory exception to the ban on its dumping. At the same time, the Port Authority commenced dredging and disposing sediments from Port Newark, completing the first 30-day phase of the project on July 7, 1993. As required by the permit, the Port Authority began on July 12, 1993, to apply a sand cap over the sediments disposed of at the Mud Dump Site to mitigate the potential for spreading of the dredged material. The capping continued on into the Fall. Approximately 2.1 million cubic yards of sand was deposited to cap 450,000 cubic yards of dredged material.

 I reviewed the brief which the Port Authority submitted on June 22 and found it to be inadequate to enable me to determine the validity of the issuance of the permit. On July 6, I issued a letter opinion in which I set forth a number of preliminary conclusions and gave defendants an opportunity to conduct additional tests and to provide comprehensive memoranda directed to the question whether the regulations had been complied with.

 My preliminary conclusions included the following:

 (i) The exception to the ban on dumping dioxin contained in 40 C.F.R. § 227.6(f)(1) is probably not applicable in the circumstances of this case.

 (ii) Defendants appear to have performed the mortality tests required by § 227.6, but they have not met the other requirements necessary to qualify the dioxin as a trace contaminant, i.e., they have performed bioaccumulation tests on only one of the three benthic (bottom) species required under § 227.6(c)(3), and they have performed no bioaccumulation tests on pelagic organisms (organisms living near the surface of the water) as required by § 227.6(c)(2).

 (iii) It appears likely that if the required tests were performed, the dioxin could be classified as a trace element and thus not subject to the dumping ban.

 (iv) Since the sediments will be capped when they are dumped, § 227.6(c) appears to allow consideration of the efficacy of the cap in assuring whether dioxin is a trace contaminant.

 (v) Release of 2.5% of the dumped material during the dumping and settling process is not a per se violation of MPRSA.

 In the July 6, 1993 letter opinion, I gave defendants until September 1 to perform such additional tests as would be required to demonstrate full compliance with the regulations and to submit detailed memoranda. I specified a date for plaintiffs to reply.

 B. The Facts

 On April 9, 1990, the Port Authority submitted an application to the Corps for a permit under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, § 404 of the Clean Water Act, 33 U.S.C. § 1344, and § 103 of MPRSA, for the dredging of the sediment from Port Elizabeth and Port Newark facilities in Newark Bay and subsequent disposal of the material at the Mud Dump. On or about November 25, 1991, a Public Notice describing the project was issued and provided for a thirty-day public comment period. Copies of the Public Notice were mailed to the adjacent property owners, interested members of the public, and federal, state, and local officials and agencies. A second public notice was issued on January 24, 1992, which announced that the Corps would conduct a public hearing on February 24, 1992. This public notice also provided opportunity for the submission of written comments. Other public notices were issued providing the opportunity for further public comment on certain aspects of the overall project.

 Numerous comments were received in response to the Public Notice from elected officials, organizations, agencies, and other interested parties.

 Three federal resource agencies - National Marine Fisheries Service ("NMFS"), U.S. Fish and Wildlife Service ("USFWS"), and the U.S. Environmental Protection Agency ("USEPA") - submitted initial comments in response to the public notice.

 Following receipt of initial agency responses to the Public Notice, the Corps met with the federal agencies, USEPA, USFWS, NMFS, and the Port Authority to discuss how the Port Authority would address the agencies' concerns and recommendations.

 The permitting process took more than three years. During that time, the Port Authority made numerous submissions to the Corps in order to address the concerns raised by the public and by the federal agencies. The Port Authority conducted extensive testing required by the government to comply with the requirements of the relevant regulations. The testing which was conducted is described in the affidavits of Mario P. Del Vicario ("Del Vicario") and Thomas D. Wright ("Wright").

 An extensive exchange of information took place in response to the environmental concerns raised by the federal agencies. Certain special conditions were recommended by the agencies. In response to these recommendations, the Corps prepared a series of special conditions for the overall project. These were coordinated with the agencies.

 The federal agencies exchanged considerable correspondence voicing their continued concerns and recommendations and refining the draft permit conditions.

 The Corps completed its NEPA documents (Statement of Findings, Environmental Assessment and Finding of No Substantial Impact) on January 6, 1993. In addition to the federal agencies' environmental concerns mentioned above, the Environmental Assessment discussed public interest review factors, as required by 33 C.F.R. § 320.4(a)(1). In that section of the Environmental Assessment, the Corps specifically addressed impacts of the project on: threatened and endangered species, economics, aesthetics, general environmental concerns, water quality, air quality, wetlands, cultural resources - historic properties, fish and wildlife values, flood hazards and floodplain values, land use, navigation, shoreline erosion and accretion, recreation, energy needs, safety, food production, and noise. The document also addressed, as required by 33 C.F.R. § 320.4(a)(2), the private and public need for the project, appropriate alternatives, and the extent and permanence of the beneficial and/or detrimental effects which the project might have on the private and public uses to which the area is suited. Numerous special conditions were required to minimize impacts upon environmental and navigational interests.

 After evaluating all the evidence of record, including the information and findings in the prior Environmental Impact Statements, specifically the Environmental Impact Statement prepared in 1983, regarding the Mud Dump, and the Supplemental Environmental Impact Statement prepared in 1991 relating to disposal alternatives, and in view of the twenty-five special conditions to be made part of the permit, the Corps concluded that the project would not have a significant adverse effect on the quality of the human environment. Thus, it was not required that another Environmental Impact Statement be prepared.

 Shortly after issuance of the permit on January 6, 1993, a further concern was presented to the Corps by EPA. EPA noted that due to the time which had elapsed in the permitting process, more sediment would have to be removed than originally contemplated. EPA requested further consideration of what effect, if any, this increased volume of dredge materials would have on environmental concerns. The permit was suspended, and further review undertaken by the Corps. After further review, the permit was reissued on May 26, 1993. It is apparent that the Port Authority's application received a comprehensive, detailed and thoughtful review by each federal agency having an interest in the subject matter. It is apparent that the Corps responded to the many concerns of these agencies and of the general public and shaped the conditions of the permit accordingly. The painstaking nature of Corps' work is evidenced by the eighteen-volume administrative record.

 Upon the issuance of the permit, plaintiffs commenced this lawsuit, which proceeded in the manner described above. While the lawsuit progressed, the Port Authority completed the dredging and dumping of the sediment in accordance with the permit.

 The last load of dredged material was dumped on July 7, 1993. Between that date and July 20, bathymetric surveys were undertaken to establish the height of the mound prior to capping. Between July and September 13, 1993, approximately 994,000 cubic meters of capping material had been placed on the site, resulting in a cap with an average thickness of .77 meters. Additional capping material was dumped, and by October 23, the cap's average thickness was one meter. Since there were some areas where the cap was not one meter thick, capping continued and was completed by December 20, 1993 when the average thickness of the cap was 1.08 meters.

 While the dredging and capping was proceeding in the summer of 1993, the Port Authority proceeded with additional testing. Because the first phase of dredging and disposal had been completed by July 7, prior to the issuance of the July 6 Order, the additional testing was performed upon sediment samples retrieved from the Mud Dump Site. The samples were retrieved from the locations designated by the Corps by boring through the sand cap to the sediment deposit below.

 All procedures followed by the Port Authority with respect to the additional testing were jointly approved by the Corps and EPA See 40 C.F.R. § 227.6(c). The procedures approved by the Corps, in consultation with EPA, addressed: (1) the taking of sediment samples; (2) the physical and chemical testing of the sediment; and (3) the selection of appropriate species for bioaccumulation studies.

 The testing was conducted on behalf of the Port Authority by three Corps-approved laboratories: (1) Aqua Survey, Inc., the lead laboratory and author of the Lab Report; (2) NYTEST, which conducted the physical and chemical analysis of the sediment; and (3) Triangle Laboratories, which conducted the tissue analysis on the organisms.

 1. Sediment Sampling Requirements

 The Green Books and the Regional Guidance describe the types of sediment samples that must be used for testing. Suspended particulate phase testing must be performed with a dilution water control and field samples from the dredging area. Solid phase testing must be performed on control and referenced sediments as well as on field samples.

 The manuals also specify the origins of the sediments. Control sediment must be supplied by the laboratory conducting the testing. Reference sediment must be taken from a specified location at the Mud Dump Site. Locations for field sampling were to be provided to the applicant by the New York District of the Corps.

 Pursuant to these requirements, Aqua Survey supplied control sediment for use in the solid phase bioaccumulation study. Aqua Survey also coordinated the retrieval of reference sediment, which was taken from the Mud Dump Site at the Loran coordinates specified in the Regional Guidance.

 Because the material to be tested had been completely removed from Reaches B, C, and D of Port Newark to the Mud Dump Site by the time the July 6 Order was issued, the Corps instructed the Port Authority to take nine core samples and a tenth composite sample of dredged sediments from the Mud Dump Site. The New York District Office of the Corps specified the precise locations at which the test samples would be retrieved. Those locations were specified on a map provided to the Port Authority by the Water Quality Compliance Branch of the Corps.

 To confirm the locations set forth on the map, on July 23, 1993, the Port Authority submitted the Loran coordinates of the sampling locations to the Corps. In its letter of July 23, the Port Authority also identified the three laboratories that would conduct the physical, chemical and biological testing of the sediments. The Work/Quality Assurance plans of the laboratories were submitted to the Corps for approval pursuant to Section 3.0 of the Regional Guidance.

 On July 29, the Port Authority submitted to the Corps a Sampling Plan, which described the method for retrieving field samples at the Mud Dump Site.

 Following the sampling, the Port Authority provided the Corps with reports identifying the locations and depth of sediment samples taken from the Mud Dump Site. According to the boring reports, the dredged material was located 74-81 feet below the surface of the ocean.

 By letter of August 5, 1993, John Hartmann of the Corps returned comments on the Sampling Plan and Work/Quality Assurance Plan of Aqua Survey. The letter stated: "We conditionally approve that initiation with your acknowledgement that the attached comments will be incorporated into testing procedures." The attached comments appeared to suggest that separate core liners should have been used to retrieve each sample. The Port Authority indicated its willingness to resample the test sediments. Having determined that cross-contamination was not a concern in this case, Mr. Hartmann of the Corps assured the Port Authority that the "single deviation from preferred procedures" did not warrant resampling.

 2. Physical and Chemical Analysis of Sediments

 The 1991 Green Book and the Regional Guidance require physical and chemical analysis of sediment samples, including tests for (1) grain size, (2) percent moisture, (3) total organic carbon, and (4) the target analyte -- in this case, dioxin (2, 3, 7, 8-TCDD). In its July 21 letter, the Corps specifically asked the Port Authority to test for these characteristics. This testing was conducted and is described in Section One of the Lab Report, entitled "Bulk Sediment Report."

 3. Selection of Species for Sediment Testing

 On their face the MPRSA regulations appear to require that different species be used as test organisms both for the suspended particulate phase and for the solid phase of the sediment. See 40 C.F.R. § 227.6(c)(2), (3).

 a. Testing of the Suspended Particulate Phase

 Testing of the suspended particulate phase of dredged sediment attempts to simulate conditions in the water column during the course of disposal of the material. The tests are, therefore, performed in a mixture of one part sediment to four parts water, using "appropriate sensitive marine organisms as defined in ...


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