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Clean Ocean Action v. York

filed: June 12, 1995.

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).

Before: Sloviter, Chief Judge, Alito, Circuit Judge, and Schwarzer, Senior District Judge*fn*

Author: Schwarzer

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.*fn1 Meanwhile the Port Authority 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. ยง 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 ...


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