Ocean Disposals and Off-Center Dumping - Assignment Example

The Environmental Protection Agency: Ocean Disposals and Off-Center Dumping The Environmental Protection Agency (EPA) is vested with a variety of environmental functions and associated powers. These functions and powers cover issues ranging from clean air to land management to clean water. This essay will examine the application of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA) to the dumping of dredged materials into the ocean by commercial enterprises. The statute does permit certain types of disposals in certain predefined parts of the ocean; on the other hand, unauthorized disposals, also known as “off-center dumping”, are prohibited and dealt with harshly under the terms of the governing statute and supporting administrative regulations. This essay will set forth the relevant portions of the MPRSA as it applies to ocean disposals of dredged materials and present a case from California where the MPRSA mandated civil penalties for a commercial dredging company. 1.1 The MPRSA’s Goals and Framework As an initial matter, the primary purpose of the MPRSA is to prevent the disposal of any materials in the ocean, within American jurisdiction, unless that disposal has previously been authorized by a permit granted by the United States Army Corps of engineers with the subsequent approval of the EPA (MPRSA section 101(a); 33 United States Code section 1411). A permit, however, is not easy to obtain; more importantly, as stated by the governing statute and administrative regulations, violating the terms of an otherwise legal permit is also unlawful and will result in civil liability. As a general rule, a permit may be obtained only when the ocean dumping does not “unreasonable degrade or endanger human health, welfare or amenities, or the marine environment, ecological systems or economic potentialities” (MPRSA section 102; United States Code section 1412). The Code of Federal Regulations sets forth guidelines for determining whether a particular permit application ought to be approved or denied; and, while both the United States Army Corps of Engineers and the EPA are involved in assessing permit applications, the EPA is the superior administrative agency and its decisions override all other agencies (40 Code of Federal Regulations sections 225.1 & 225.2(c)). In short, the disposal of dredged materials in the ocean is prohibited, a permit application does exist, and there are very strict requirements for a permit to be approved. The MPRSA is enforced through section 105(a), which authorizes the EPA to assess a civil penalty not exceeding $50,000 per day for any violation. These violations may derive from disposals without a permit or disposals which fall outside the terms of an authorized permit. This civil penalty, however, is not absolutely required by the terms of the statute or by the supporting federal regulations. Instead, once a violation is determined, the EPA is granted wide latitude in determining the amount of the penalty to assess. The EPA should consider the seriousness of the violation, whether there is a prior history of similar violations, and whether there was a good faith attempt to remedy the non-compliance (MPRSA section 105(a); 33 United States Code section 1415(a)). In summary the MPRSA and the related federal regulations are designed to protect American waters from certain types of ocean disposals which might harm human welfare, the environment, or economic interests. The civil penalties are quite severe, though the EPA is vested with the discretion to lessen the civil liabilities on showings of good faith or mistakes without serious consequences. 1.2 Application: In the Matter of Port of Oakland The application of this statute was considered in a case in California. In this case, Oakland Inner Harbor had a navigational channel. Congress enacted legislation authorizing the city of Oakland to deepen and expand the navigational channel in order to better accommodate supercontainer ships for commerce. The city of Oakland thereafter hired a contractor to dredge the existing channel; the problem arose over the disposal of the dredged material. Thus, the dredging was authorized by Congress, implemented via the city of Oakland, and the contractor began work. Soon thereafter, however, the EPA initiated a claim against the dredging contractor for alleged violations of the MPRSA. This case did not involve a permit application; quite the contrary, a permit had been approved by both the United States Army Corps of Engineers and by the EPA and duly issued. Instead, the issue involved whether the contractor violated the terms of the permit and the calculation of civil damages. The contractor eventually admitted that it disposed of dredged materials improperly in three separate instances. This constituted “off-center dumping”, a violation of the terms of a duly issued permit, and the case thus turned to the calculation of civil damages. The issue was whether the EPA ought to impose the full $50,000 per day or a lesser figure. The problem, from a legal point of view, is the incompleteness of the governing statute and the supporting federal regulations. This is because the EPA is vested the power to determine the “gravity” of a dumping offense in assessing civil damages but there is no statutory or regulatory criteria for defining degrees of gravity (In the Matter of Port of Oakland, 1992: 185). It was this issue, determining gravity, which the administrative law court was left to resolve. In general, the administrative law court interpreted the MPRSA and the federal regulations as delegating a great deal of discretion to the EPA. They approved gravity assessments based upon threats of actual harm to the aforementioned human, environmental, and economic interests. This is important because a specific intent to harm is not required; quite the contrary, it is the consequences that affect the damage calculations more than ill intent. A contractor, therefore, whom dumps illegally regularly, might incur less damages than a contractor whom dumps a few times illegally but creates a greater risk. In short, consequences matter very much to the EPA and to the administrative judges reviewing these types of cases In this case, the administrative court found that, though there were only three illegal ocean disposals, they posed substantial risks to environmental and economic interests. The EPA was thus justified in assessing gravity assessments to the overall civil liability. In conclusion, the EPA has comprehensive statutory and regulatory support with which to protect our oceans. The MPRSA and the supporting federal regulations make obtaining a permit difficult and the penalties for violating the terms of a permit expensive and prohibitive. Even in cases with substantial economic interests, such as the supercontainer dredging in Oakland, the EPA is both willing and able to intervene to defend a variety of human and environmental concerns. Works Cited In the Matter of Port of Oakland and Great Lakes Dredge and Dock Company. Environmental Administrative Decisions, Volume 4, pp. 170-209 (Decided August 5, 1992). Marine Protection, Research, and Sanctuaries Act of 1972. 33 United States Code, sections 1401 et al. Read More