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Basel Action Network v. Maritime Administration

October 2, 2003

BASEL ACTION NETWORK, ET AL., PLAINTIFFS,
v.
MARITIME ADMINISTRATION, ET AL., DEFENDANTS.



TEMPORARY RESTRAINING ORDER

On September 26, 2003, Plaintiffs filed a motion for a temporary restraining order ("TRO") to enjoin Defendants from exporting ships listed in the National Defense Reserve Fleet's ("NDRF") non-retention category, including the Canisteo and the Caloosahatchee, until the Court has ruled on Plaintiffs' motion for a preliminary injunction. The Court heard oral argument on this matter on October 1, 2003, at which time Defendants submitted an opposition brief with exhibits.

At issue is Defendant Maritime Administration's ("MARAD") decision to export 13 defunct naval vessels from the James River in Virginia to the United Kingdom for disposal in conjunction with an export "Pilot Program" established by Congress in the Bob Stump National Defense Authorization Act ("NDAA") for Fiscal Year 2003, Pub. L. No. 107-314, § 3501, 116 Stat. 2458 (2002). The Canisteo and Caloosahatchee – built in the mid-1940s and presently in dangerously deteriorating condition – are slated to leave Virginia as soon as October 3, 2003.*fn1

Plaintiffs note that MARAD has informed officials in the United Kingdom that the 13 ships contain up to 100 tons of polychlorinated biphenyls ("PCBs"), as well as significant quantities of asbestos and fuel oil. MARAD plans to tow the ships in tandem across the North Atlantic to Teesside, England, where AbleUK, a British shipbreaker, will dismantle them and dispose of the hazardous materials.

Plaintiffs claim that MARAD's export plan violates three statutes, giving rise to a cause of action under the Administrative Procedure Act ("APA") and one of those statutes. First, Plaintiffs argue that the Toxic Substances Control Act, 15 U.S.C. § 4321 et seq. ("TSCA"), prohibits the export of PCBs without an exemption from Defendant Environmental Protection Agency ("EPA"), which may only be granted following formal rulemaking. Defendants acknowledge that EPA did not engage in rulemaking; instead, they rely on a May 2003 "enforcement discretion" letter from EPA stating that it would not enforce the PCB export ban against MARAD so long as certain conditions affecting the disposition of the ships are met. Second, Plaintiffs assert that the National Maritime Heritage Act, 16 U.S.C. § 5401 et seq. ("NMHA"), requires that MARAD, as the best value alternative, use a different disposal option for these ships because, Plaintiffs contend, towing for 45 days across the North Atlantic presents significant environmental risks. Finally, Plaintiffs argue that the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), directs MARAD and EPA to conduct an Environmental Assessment ("EA") or Environmental Impact Statement ("EIS") before exporting these ships. MARAD prepared an EA entitled "Environmental Analysis of the Maritime Administration Ship-Disposal Program" in 1994 and one entitled "Environmental Assessment of the Sale of [NDRF] Vessels for Scrapping" in 1997. In addition, MARAD submitted reports to Congress on the status of the NDAA's Vessel Scrapping Program in April 2001 and June 2002, which the agency asserts are the "functional equivalent" of a supplemental EA. According to Plaintiffs, however, EPA has failed to supplement its EAs properly to account for new information related to current ship movements.

A TRO is an extraordinary remedy and should be granted sparingly. Michael v. United States, 260 F. Supp. 2d 23, 25 (D.D.C. 2003). When presented with such a motion, the Court must examine whether "(1) there is a substantial likelihood plaintiff[s] will succeed on the merits; (2) plaintiff[s] will be irreparably injured if an injunction is not granted; (3) an injunction will substantially injure the other part[ies]; and (4) the public interest will be furthered by an injunction."*fn2 Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360 (D.C. Cir. 1999). These factors "interrelate on a sliding scale" and a particularly strong showing on one may compensate for a weak showing on another. Vencor Nursing Ctrs., L.P. v. Shalala, 63 F. Supp. 2d 1, 7 (D.D.C. 1999) (quoting Davenport, 166 F.3d at 361).

1. Substantial Likelihood of Success on the Merits*fn3

The Court begins its analysis with Plaintiffs' TSCA claim. TSCA and its implementing regulations ban the export for disposal of PCBs in concentrations greater than 50 parts per million. 15 U.S.C. § 2605(e)(1), (3); 40 C.F.R. §§ 761.20, 761.97. An exporter may petition EPA for an exemption from this prohibition and the agency "may grant by rule such an exemption if the Administrator finds that - (i) an unreasonable risk of injury to health or environment would not result, and (ii) good faith efforts have been made to develop a chemical substance which does not present an unreasonable risk of injury to health or the environment and which may be substituted for such [PCBs]." 15 U.S.C. § 2605(e)(3)(B); 40 C.F.R. § 761.20.

Like many statutes, TSCA contains a citizen-suit provision, whereby any person may commence a civil action "(1) against any person... who is alleged to be in violation of this chapter... or against [EPA] to compel [that agency] to perform any act or duty under this chapter which is not discretionary." 15 U.S.C. § 2619(a). Defendants argue that this provision also states, "No civil action may be commenced... before the expiration of 60 days after the plaintiff[s have] given notice...." Id. § 2619(b); see also Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (construing a similar citizen suit provision under the Resource Conservation and Recovery Act of 1976). Plaintiffs submitted a notice of intent to sue under TSCA on September 8, 2003. Because 60 days have not yet passed since that event, any claim made directly under TSCA would be premature, leaving Plaintiffs with no likelihood of success.

However, Plaintiffs' TSCA claim actually arises under the APA. Plaintiffs allege that "MARAD's request that EPA exercise its enforcement discretion concerning TSCA's PCB export ban... and EPA's grant of an exemption... without rulemaking, are arbitrary, capricious, and not in accordance with procedures required by the APA... [and] are agency actions unreasonably delayed and/or unlawfully withheld[.]" Complaint ¶¶ 35-36. The May 2003 letter by which EPA stated that it would not enforce TSCA against MARAD constitutes a final agency action subject to APA review. See Bennett v. Spear, 520 U.S. 154, 175-76 (1997) ("No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA's citizen-suit provision are exclusive, supplanting those provided by the APA. The APA, by its terms, provides a right to judicial review of all 'final agency action for which there is no other adequate remedy in a court,' § 704, and applies universally 'except to the extent that – (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law,' § 701(a)."); see also id. at 177-78.

At this early stage of the litigation, the Court finds that Plaintiffs have not established a substantial likelihood that they can prove a violation of the APA based on TSCA. Defendants present a cognizable argument that EPA's decision not to enforce TSCA's prohibition on exporting PCBs is a matter vested within the discretion of that agency, not equivalent to granting an exemption. The Court is concerned that MARAD's export plan may violate 40 C.F.R. § 761.97, which appears to require MARAD to obtain an exemption before exporting PCBs at certain concentrations, independent of whether EPA will enforce TSCA. However, this issue has not yet been briefed and is insufficiently clear to warrant the extraordinary remedy of an injunction. The parties should come to the preliminary injunction hearing prepared to discuss the implications of that provision.

Plaintiffs also seek interim injunctive relief under the APA for an alleged violation of NMHA. That law instructs MARAD, by September 30, 2006, to dispose of all ships listed in the NDRF's non-retention category "in a manner that provides the best value to the Government, except in any case in which obtaining the best value would require towing a vessel and such towing poses a serious threat to the environment[.]" 16 U.S.C. § 5405(c). Plaintiffs' first cause of action in their complaint alleges, in relevant part, that Defendants have arbitrarily and capriciously ignored the requirements of the NMHA in violation of the APA. Complaint ¶ 35. In Plaintiffs' opinion, better value options for disposal exist in the United States and trans-Atlantic towing is too risky.

MARAD has been working assiduously directly with Congress for many years to address the problems with the James River Fleet. For purposes of a TRO, Defendants have sufficiently demonstrated that MARAD "reasonably determined that the proposal by Post-Remediation Partners, LLC, submitted though the competitive program, to dismantle and recycle ships at the Able UK facility would result in the best value." Defendants' Opposition at 24. An affidavit from Curt Michanczyk, Program Manager for the MARAD Ship Disposal Program, lists the factors considered by MARAD in making this decision. Declaration of Curt Michanczyk ¶ 40. Defendants have also shown the reasonableness of their conclusion that tandem towing of these ships will not "pose[] a serious threat to the environment[.]" 16 U.S.C. § 5405(c). Professional surveys of the towing arrangements have been filed with the Court evincing, to some extent, the relative safety of the towing process. In addition, defense counsel represented during the motions hearing that all liquid and removable solid PCBs would be purged from the ships prior to transit.*fn4 With respect to the Canisteo and the Caloosahatchee – the first two ships to be towed to England – Defendants submitted International Load Line Exemption Certificates from the United States Coast Guard "represent[ing] the... Coast Guard's determination that the vessels are seaworthy for the granted voyage, the tow from Norfolk to Teesside." Declaration of Shawn R. Ireland ¶ 5. Therefore, the Court finds that Plaintiffs' likelihood of success on their NMHA claim is not sufficient to merit the issuance of a temporary injunction.

The last substantive statute invoked by Plaintiffs is NEPA, which requires federal agencies to prepare an EIS or a "no significant impact" finding for all "major Federal actions significantly affecting the quality of the human environment[.]"*fn5 42 U.S.C. § 4332(2)(C). Plaintiffs sue directly under NEPA, as well as via the APA.

Defendants cite Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983), for the criteria a court should use when reviewing an ...


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