                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-1995

Clean Ocean Action v York
Precedential or Non-Precedential:

Docket 94-5489




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Recommended Citation
"Clean Ocean Action v York" (1995). 1995 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/165


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`                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                           No. 94-5489
                        ________________

   CLEAN OCEAN ACTION, a New Jersey non-profit corporation; THE
 AMERICAN LITTORAL SOCIETY, a New Jersey non-profit corporation;
THE FISHERMEN’S DOCK COOPERATIVE, INC., a New Jersey corporation;
     THE UNITED FISHERMEN’S ASSOCIATION, a New York non-profit
corporation; THE CONFEDERATION OF THE ASSOCIATION OF THE ATLANTIC
      CHARTERBOATS AND CAPTAINS, INC., a New York corporation

                               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; ENVIRONMENTAL
PROTECTION AGENCY, an agency of the United States; PORT AUTHORITY
    OF NEW YORK AND NEW JERSEY, a bi-state governmental agency;
     WILLIAM J. MUSZYNSKI, in his capacity as Acting Regional
       Administrator of the United States; NEW YORK SHIPPING
        ASSOCIATION, INC.; CARRIERS CONTAINER COUNCIL, INC.;
          INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO


      Clean Ocean Action, The American Littoral Society, The
Fishermen’s Dock Cooperative, The United Fishermen’s Association,
    and The Confederation of the Association of the Atlantic
                 Charterboats and Captains, Inc.

                           Appellants

                        ________________

         On Appeal From the United States District Court
                  For the District of New Jersey
               (D.C. Civil Action No. 93-cv-02402)
                        _________________

                       Argued May 4, 1995
    BEFORE: SLOVITER, Chief Judge, ALITO, Circuit Judge, and
                SCHWARZER, Senior District Judge*

                 (Opinion Filed: June 12, 1995)
                        _________________

                         Gordon N. Litwin (argued)
                         Ansell, Zaro, Bennett & Grimm
                         60 Park Place
                         Newark, NJ 07102
                         Attorney for Appellants, Clean Ocean
                         Action, The American Littoral Society,
                         The Fishermen’s Dock Cooperative, Inc.,
                         The United Fishermen’s Association, The
                         Confederation of the Association of the
                         Atlantic Charterboats and Captains,
                         Coastal Advocates, The Pacific Coast
                         Federation of Fishermen Association, The
                         Coast Alliance, Cape Arago Audubon
                         Society, Manasota 88, The St. Simons
                         Island Save the Beach Association, Inc.,
                         and The Jersey Coast Anglers Association

                         Albert M. Ferlo, Jr. (argued)
                         United States Department of Justice
                         Environment & Natural Resources Division
                         P.O. Box 23795
                         Washington, DC 20026
                         Attorney for Appellees, Colonel Thomas
                         A. York, General Stanley T. Genega, Army
                         Corps of Engineers, Carol M. Browner,
                         William J. Muszynski and United States
                         Environmental Protection Agency

                         Hugh H. Welsh
                         Michael D. Driscoll (argued)
                         Port Authority of New York & New Jersey
                         One Riverfront Plaza
                         Newark, NJ 07102
                         Attorneys for Appellee, Port Authority
                         of New York and New Jersey


      *The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting
by designation.
C. Peter Lambos
Donato Caruso (argued)
Lambos & Giardino
29 Broadway, 9th Floor
New York, New York 10006
Attorneys for Appellees, New York
Shipping Association, Inc. and Carriers
Container Council, Inc.

Thomas W. Gleason
Ernest L. Mathews, Jr.
Gleason & Mathews
26 Broadway, 17th Floor
New York, New York 10004
Attorneys for Appellee, International
Longshoremen’s Association, AFL-CIO

Louis Pechman
Lambos & Giardino
17 Academy Street, Suite 305
Newark, NJ 07102
Attorney for Appellees, New York
Shipping Association, Inc. and Carriers
Container Council, Inc.

Mark H. Rochkind
Hausman & Sunberg
7 Cleveland Street
Caldwell, NJ 07006
Attorney for Appellee, International
Longshoremen’s Association, AFL-CIO

Lois J. Schiffer
Assistant Attorney General
Department of Justice
Environment and Natural Resources
Division
10th and Constitution Avenue, N.W.
Washington, D.C. 20530
Attorney for Federal Appellees

David M. Gravallese
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Attorney for Federal Appellees

Phyllis Feinmark
Office of Regional Counsel
E.P.A. Region II
                         New York, New York 10278
                         Attorney for Federal Appellees

                         James G. Palmer
                         U.S. Army Corps of Engineers
                         New York District
                         Office of the General Counsel
                         New York, New York 10278
                         Attorney for Federal Appellees

                         Faith S. Hochberg
                         United States Attorney
                         Office of the United States Attorney
                         970 Broad Street, Room 502
                         Newark, New Jersey 07102
                         Attorney for Federal Appellees

                         Susan Handler-Menahem
                         Assistant U.S. Attorney
                         Office of the United States Attorney
                         970 Broad Street, Room 502
                         Newark, New Jersey 07102
                         Attorney for Federal Appellees

                         Mary Elizabeth Ward
                         David L. Shilton
                         Albert M. Ferlo, Jr.
                         Environmental and Natural Resources
                         Division
                         Department of Justice
                         Post Office Box 23795
                         L’Enfant Plaza Station
                         Washington, D.C. 20026
                         Attorneys for Federal Appellees

                        _________________

                      OPINION OF THE COURT
                       __________________


     SCHWARZER, District Judge.


     Appellants, a group of conservation, fishing, boating,

civic, realty and educational groups, brought this action

against the Army Corps of Engineers (Corps), the Environmental
Protection Agency (EPA), the Port Authority of New York and New

Jersey (Port Authority) and various federal officials, for

declaratory and injunctive relief to stop the ocean dumping of

materials dredged from the Port Authority’s Newark/Port Elizabeth

facility.   The district court denied the application for a

preliminary injunction and this appeal followed.   We have

appellate jurisdiction over the district court’s order denying

the preliminary injunction under 28 U.S.C. §1292(a)(1)(West Supp.

1994).   The district court had subject matter jurisdiction of the

action under 28 U.S.C. §1331 (West Supp. 1994) (federal

question), 33 U.S.C. §1415(g)(West Supp. 1994)(Marine Protection,

Research, and Sanctuaries Act (MPRSA)), and 5 U.S.C. §704 (West

Supp. 1994) (Administrative Procedure Act).

                                I.

     On May 26, 1993, the Corps issued a permit allowing the Port

Authority to dredge up to 500,000 cubic yards of material from

its Newark/Port Elizabeth facility and dispose of the material at

an ocean mud dump site six miles off the New Jersey shore.    The

material to be dumped contained dioxin.   On June 1, 1993,

appellants filed this action for declaratory and injunctive

relief and sought, but were denied, a temporary restraining order

against the proposed ocean dumping.

     At the close of the hearing on appellants’ application for a

preliminary injunction on June 7, 1993, the district court, in an

oral ruling, denied the application.   The court found that on the

record before it, there was insufficient evidence to show that

defendants had complied with the detailed procedures necessary
under the EPA’s ocean dumping regulations to demonstrate that

dioxin was present in the materials to be dumped only as a trace

contaminant with no significant undesirable effects.    It

concluded that the record did not support the Corps’ finding that

the permit met the requirements of the EPA’s ocean dumping

regulations and that appellants therefore were likely to succeed

on the merits of their claim.     The court further found, however,

that the catastrophic injuries to the shipping industry, to

longshoremen and other workers, and to the public at large, which

would result from the failure to dredge, outweighed the minimal

or non-existent injuries to plaintiffs, since the dredging under

the permit would have no significant adverse environmental

effects.   Finally, the court stated that it was highly likely

that defendants would be able to establish that dioxin was

present only in trace quantities or, alternatively, obtain a

waiver from the Secretary of the Army.    While denying the

application, the court also ordered the Port Authority either to

establish that the permit was lawfully issued under the EPA’s

regulations or to pursue a waiver, and it ordered the Corps to

issue no further permits for dumping at the dump site until

compliance had been established or a waiver obtained.

    Appellants did not appeal the denial of the preliminary

injunction at that time, and in excess of 450,000 cubic yards has

since been dumped at the site.1    Meanwhile the Port Authority

  1 No party argues that the appeal should be treated as moot.
Since the permit will not expire until January 1996 and has not
been exhausted, we agree that the appeal is not moot.
submitted a memorandum and supporting exhibits to the court to

demonstrate that the permit had been lawfully issued.    In a

ruling issued on July 6, 1993, the court found that defendants

had failed to perform all the tests required to qualify dioxin as

a trace contaminant but that it appeared likely that if all the

tests were performed, dioxin in the dumped material would be

classified as a trace contaminant.    Accordingly, the court

granted defendants until September 1, 1993 to perform additional

tests and to submit a memorandum demonstrating their compliance

with regulatory requirements.   Defendants as well as plaintiffs

submitted additional materials.

     On June 28, 1994, the district court issued the opinion from

which the instant appeal was taken, once again denying the

request for a preliminary injunction.    This time the court

concluded that “the bioassays which defendants conducted met the

regulatory requirements and support the conclusion that the

sludge dioxin is a trace contaminant falling outside the dumping

prohibition of [33 C.F.R.] §227.6(a).”    It held that “reading the

regulations in their entirety, . . . it is apparent that the

government agencies reserved wide discretion in themselves to

determine which tests should be conducted and the manner of

conducting those tests.”

                                II.

     When ruling on a motion for a preliminary injunction, the

district court must consider four factors:    the likelihood of

success on the merits; the extent of irreparable injury from the

conduct complained of; the extent of irreparable harm to the
defendants if a preliminary injunction issues; and the public

interest.   Opticians Association of America v. Independent
Opticians of America, 920 F.2d 187, 191-92 (3rd Cir. 1990).   In

reviewing the district court’s denial of a preliminary

injunction, we “cannot reverse unless the trial court has

committed an obvious error in applying the law or a serious

mistake in considering the proof.”   Freixenet, S.A. v. Admiral

Wine & Liquor Co. 731 F.2d 148, 150 (3rd Cir. 1984); Opticians

Association, 920 F.2d at 192.   We hold that the district court

committed a serious error in applying the law with respect to the

defendants’ compliance with the EPA regulations but that both the

balance of harms and the public interest support the denial of

the preliminary injunction.
                                 III.

     The MPRSA (the Act) prohibits the dumping of materials into

the ocean except as authorized by a permit issued by the EPA. 33

U.S.C. §1411 (West Supp. 1994).    Section 1412 of the Act directs

the EPA to “establish and apply criteria for reviewing and

evaluating . . . [ocean] permit applications.”    The EPA has

adopted such criteria for the evaluation of permit applications

for ocean dumping of materials.    40 C.F.R. part 227 (1992)(the

Regulations).   The Regulations state, in relevant part, that

ocean dumping of “materials containing . . . constituents

. . . suspected to be carcinogens . . . as other than trace
contaminants . . . will not be approved” [other than on an

emergency basis, not applicable here].    40 C.F.R.

§227.6(a)(5)(all emphasis herein is added).    The Regulations

establish the procedure for qualifying constituents “suspected to

be carcinogens” as only trace contaminants.

     First, the Regulations state the criterion for qualification

as trace contaminants:

     These constituents will be considered to be present as trace
     contaminants only when they are present . . . in such forms

     and amounts in liquid, suspended particulate, and solid

     phases that the dumping of the materials will not cause

     significant undesirable effects, including the possibility

          of danger associated with their bioaccumulation in

     marine     organisms.

40 C.F.R. §227.6(b).     Next, the Regulations specify the procedure

for determining whether the constituents qualify under the above
criterion, that is, whether the constituents have a potential for

causing significant undesirable effects, as follows:

     The potential for significant undesirable effects due to the

     presence of these constituents shall be determined by
          application of results of bioassays on liquid,

     suspended         particulate, and solid phases of wastes

     according to procedures acceptable to EPA, and for dredged

     material, acceptable to EPA and the Corps of Engineers.

40 C.F.R. §227.6(c).    The Regulations then address the procedures

for making that determination:    “Materials shall be deemed

environmentally acceptable for ocean dumping only when the

following conditions are met.”     Id.   Two of the stated conditions

are relevant here.     The first condition relates to the suspended

particulate phase of the waste (i.e. the water column during the

dumping) and states that “bioassays shall be conducted with

appropriate sensitive marine organisms as defined in

§227.27(c)[which defines them as pelagic organisms, i.e. those

that live in the water column] using procedures . . . approved by

EPA and the Corps of Engineers” to establish the absence of

“significant mortality or significant adverse sublethal effects

including bioaccumuluation . . .”    40 C.F.R. §227.6(c)(2).

Section 227.6(c)(2) further specifies the procedures for

conducting bioassays under the section.

     The second condition relates to the solid phase of the waste

(i.e. the deposit on the ocean floor) and states that “bioassays
shall be conducted with appropriate sensitive benthic marine

organisms [i.e. organisms that live on the ocean floor] using
benthic bioasssay procedures . . . approved by EPA and the Corps

of Engineers” to establish the absence of “significant mortality

or significant adverse sublethal effects . . .”   40 C.F.R.

§227.6(c)(3).

     The plain meaning of these Regulations is that the dumping

of materials containing dioxin is prohibited unless the dioxin is

present only as a trace contaminant; that dioxin can qualify as a

trace contaminant only when it will not cause significant

undesirable effects; and that the determination whether dioxin

will cause significant undesirable effects is to be made by

conducting specified tests, including bioassays in the suspended

particulate and solid phases of the waste on specified types of

marine organisms.   The court found and it is undisputed that no

bioassays were conducted on the suspended particulate phase.   It

further found and it is undisputed that bioassays were performed

on the solid phase of the waste with only one benthic (ocean

floor) species, not with three species as required by §227.27(d).

     In concluding that the agencies had reserved discretion to

themselves to determine which tests to conduct, the district

court relied on the language of §227.6(c), which provides: “The

potential for significant undesirable effects due to the presence

of these constituents shall be determined by application of

results of bioasssays on liquid, suspended particulate, and solid

phases of wastes according to procedures acceptable to EPA, or,
for dredged material, acceptable to EPA and the Corps of
Engineers . . .”
     The EPA’s reservation of discretion to determine how to
conduct tests cannot be read as a reservation of discretion to

determine whether to conduct tests required by the unequivocal

language of its regulations.    The Regulations make a clear

distinction between requiring a test and determining how to

conduct it when they state that “[t]hese bioassays shall be

conducted with appropriate sensitive marine organisms as defined

in §227.27(c) using procedures for suspended particulate phase

bioassays approved by EPA . .   and the Corps . . .” §227.6(c)(2).

Similar language is used in §227.6(c)(3) with respect to solid

phase testing of waste.

     “Generally we defer to an agency’s consistent interpretation

of its own regulations unless it is ‘plainly erroneous or

inconsistent with the regulation.’”   Sekula v. FDIC, 39 F.3d 448,

453 (3rd Cir. 1994), quoting Bowles v. Seminole Rock and Sand Co.

325 U.S. 410, 414 (1945).   But “this deference does not permit us

to defer to an ‘interpretation’ . .   that strains ‘the plain and

natural meaning of words . . .’” Id., quoting Director, Office of

Workers’ Compensation Programs v. Mangifest, 826 F.2d 1318, 1324

(3rd Cir. 1987).   It is “our duty to independently insure that

the agency’s interpretation comports with the language it has

adopted.”   Director, Office of Workers’ Compensation Programs v.
Gardner, 882 F.2d 67, 70 (3rd Cir. 1989).

     The language of the EPA’s Regulations is unambiguous.     We

find that the interpretation adopted by the defendants and

accepted by the court is inconsistent with the plain meaning of

that language.   While the MPRSA gives the EPA broad rule-making
authority under which it could have reserved to itself the

discretion it now claims, it simply failed to do so.   See Accardi
v. Shaughnessy, 347 U.S. 260, 267-68 (1954).

     Defendants contend that under the EPA’s long-standing

interpretation of its Regulations, it has never required

bioaccumulation testing on the suspended particulate phase.    They

point to the Dredged Material Testing Manual (the “Green Book”),

first issued by the EPA in 1977 and again in an updated version

in 1991. 55 Fed.Reg. 8191 (Mar. 7, 1990); 56 Fed.Reg. 13,826

(Apr. 4, 1991).   The 1991 Green Book states, reiterating similar

text in the 1977 edition, that ‘[b]ioaccumulation from the

material in the water column is generally of minor concern, due

to the short exposure time and the low exposure concentrations,

resulting from rapid dispersion and dilution.” 59 Fed.Reg. 26568

(May 20, 1994). The Green Book, the court found, does not specify

a suspended particulate bioaccumulation test.2

     It appears to us that the Green Book is intended to

implement the provisions of the Regulations that tests be

conducted “using procedures approved by EPA and . . . the Corps.”

If the Green Book’s omission of procedures for suspended

particulate testing were read as the agency’s interpretation of

  2 Defendants do not argue, nor did the court find, that the
Green Book supports their failure to comply with the requirement
that three benthic species be tested with the solid phase. What
the district court found was that the test procedures followed
were the most conservative and would produce results of the worst
case scenario and that they established that the proposed dumping
would create no significant undesirable effects. That finding,
however, does not support the court’s conclusion that “the
testing complied with the requirements of §227.6(c)(3)”.
its Regulations, however, it could be given no force for it would

be in direct conflict with those Regulations.     Gardner, 882 F.2d
at 70.   An agency guideline or directive that conflicts with the

plain meaning of a regulation is invalid.      National Family

Planning & Reproductive Health Ass’n v. Sullivan, 979 F.2d 227,

234-36 (D.C. Cir. 1992).

     If the Green Book were read as an attempt to amend the

Regulations, it would fail as well. The EPA issued the

Regulations under its authority to “establish and apply criteria

for reviewing and evaluating . . . [ocean dumping] permit

applications.”     33 U.S.C. §1412(a).   An agency is bound by the

express terms of its regulations until it amends or revokes them.

Facchiano Const. Co., Inc. v. U.S. Dept. of Labor, 987 F.2d 206,

213 (3d Cir.), cert denied, 114 S.Ct. 80 (1993), citing United

States v. Nixon, 418 U.S. 683, 695-96 (1974); see also Accardi,

347 U.S. at 266-67.    Once a legislative rule such as the

Regulations is adopted, its substantive provisions may be changed

only by compliance with the notice and hearing requirements of

the Administrative Procedure Act. 5 USC §553(b)(A)(West Supp.

1994);     Sekula v. FDIC, 39 F.3d at 457.
     The announcements of the 1991 edition of the Green Book did

not purport to be an exercise of EPA’s rule-making authority.

See 55 Fed.Reg. 8191 (Mar. 7, 1990); 56 Fed.Reg. 13,826 (Apr.

4,1991).    The 1991 announcement describes the Green Book as

replacing the 1977 edition, which it states “provided guidance

for implementing the environmental evaluations required under the

ocean dumping regulations to determine the acceptability of
dredged materials for ocean dumping . . . to ensure compliance

with EPA’s environmental criteria.”       56 Fed. Reg. at 13,827.    By

way of contrast, the EPA’s exercise of its rule making authority

is illustrated by the announcement of its interim final rule in

which it adopted a clarification of the Regulations’ suspended

particulate phase testing provisions subsequent to the

commencement of this litigation.       59 Fed.Reg. 26,566 (May 20,

1994).    Thus the Green Book is merely a guidance document which

cannot be given the effect of amending the Regulations.

     Accordingly, we conclude that the district court’s holding

that defendants complied with the EPA’s Regulations constitutes

serious error in applying the law.

                                 IV.

     At the initial hearing on appellants’ application for

injunctive relief, the court found that the functioning of the

port is of extraordinary economic importance to the ocean

carriers and longshoremen directly affected by the curtailment

and eventual cessation of activities and to the entire region

which is already suffering from serious economic conditions.         The

catastrophic injuries to these interests and the public at large

outweigh the minimal or non-existent injuries to appellants since

no significant adverse environmental effects were shown to

result.   Appellants take no issue with these findings but contend

that they are irrelevant to the controlling considerations under

the MPRSA and the Regulations.    The argument misses the point.

The question here is not whether the Corps or the EPA may take

economic considerations into account in issuing the permit but
rather whether the court’s equitable power should be exercised on

behalf of appellants.   It is clear that the district court must

weigh the balance of harms in determining whether to grant a

preliminary injunction and we cannot say that in doing so here,

it abused its discretion.

     In light of appellants’ failure to show the requisite

irreparable injury, the order of the district court denying a

preliminary injunction will be affirmed.
