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Basel Action Network v. Maritime Administration

March 2, 2005

BASEL ACTION NETWORK, A SUBPROJECT OF THE TIDE CENTER AND SIERRA CLUB PLAINTIFFS,
v.
MARITIME ADMINISTRATION, CAPT. WILLIAM G. SCHUBERT, IN HIS OFFICIAL CAPACITY, ADMINISTRATOR; AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL LEAVITT, IN HIS OFFICIAL CAPACITY, ADMINISTRATOR DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The Maritime Administration ("MARAD") must dispose of decommissioned military vessels that constitute the Non-retention ships in the National Defense Reserve Fleet ("NDRF"). Congress requires that this disposal be completed by the end of fiscal year 2006. Approximately seventy (70) of these aging hulks are moored at the James River Reserve Fleet ("JRRF") in Virginia. When MARAD proposed to conduct tandem tows to move 13 of these ships to a shipbreaker in Teesside, United Kingdom in the fall of 2003, plaintiffs Basel Action Network ("BAN") and The Sierra Club filed this action, with a request for a temporary restraining order and preliminary injunction, on the grounds that the export of the vessels would violate several federal environmental laws. On October 2, 2003, this Court issued a temporary restraining order ("TRO" with respect to nine of the thirteen ships, finding that MARAD had not completed an environmental assessment or an environmental impact statement. Basel Action Network v. Mar. Admin., 285 F. Supp. 2d 58 (D.D.C. 2003). Because MARAD had submitted the "functional equivalent"*fn1 of an environmental assessment ("EA") to Congress for the four ships, their departure was not enjoined. Id. Subsequently, at the parties' request, the TRO was modified to a preliminary injunction and a briefing schedule was set for cross-motions for summary judgment, which are now pending before the Court.

Having considered the record in its entirety, including the excellent briefs of the parties, and oral argument, the Court concludes that Plaintiffs' complaint must be dismissed.

I. BACKGROUND FACTS

The NDRF consists of government-owned merchant-type vessels of 1,500 gross tons or more.*fn2 This includes the Ready Reserve Fleet - maintained in a state of readiness for emergencies - and the Non-retention Reserve Fleet, which consists of obsolete vessels. The National Maritime Heritage Act ("NMHA"), 16 U.S.C. § 5401 et seq., authorizes MARAD to dispose of obsolete NDRF vessels. Given their age (many are relics of the 1940s) and condition, the National Defense Authorization Act for fiscal year 2001 set a September 30, 2006 deadline for MARAD to dispose of all obsolete vessels "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).

In pursuit of this goal, MARAD initiated a competitive procurement program under the Federal Acquisition Regulations to solicit ship dismantling/recycling proposals from the ship breaking industry, both foreign and domestic. This Program Research and Development Announcement ("PRDA"), published in September 2001, led to a contract for recycling awarded to Post-Service Remediation Partners, LLC. This contract was later assigned to the subcontractor and parent corporation, AbleUK in Teesside, U.K. The contract requires compliance with the laws of the United States and the United Kingdom to assure protection of the environment and worker health and safety. The contract requires AbleUK to possess all licenses, permits, and approvals from local and national United Kingdom authorities required to tow the ships to its facility in the United Kingdom and to engage in vessel dismantling and recycling activities, including proper disposal of all hazardous materials.

When the tows of the four vessels allowed by the TRO commenced in the fall of 2003, AbleUK had all permits required to receive the vessels at its facility. However, subsequent to the tow's departure from the United States, the United Kingdom Waste Management License and the local planning board approvals were determined to be inadequate in proceedings before the High Court Justice Queen's Bench Division, Administrative Court. Rather than challenge these rulings, AbleUK has applied for a new waste management license and the necessary local planning approvals. MARAD anticipated that all of these approvals would be received before the end of 2004; in any event, under the terms of the MARAD-AbleUK contract, AbleUK cannot engage in any ship-breaking activities until it has all necessary licenses and approvals.

The CALOOSAHATCHEE, CANISTEO, CANOPUS, and the COMPASS ISLAND - all ships from the JRRF, also known as the "Ghost Fleet" - safely reached the United Kingdom and are moored at the AbleUK facility in Teesside. MARAD informs the Court that the United Kingdom Environmental Agency has been monitoring the vessels and has concluded, following a water and sediment quality review, that "there is no evidence that the presence of the four US Naval ships has caused a change in water or sediment quality in Seaton Channel or in the Tees Estuary." United States' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and In Support of Its Cross Motion for Summary Judgment ("U.S. Opp.") Ex. 4, US Navy Vessels in the Tees Estuary Water and Sediment Review, at § 7.

In the meantime, MARAD has still been working against a September 2006 deadline to dispose of the entire Ghost Fleet (and other Non-retention Reserve vessels). Of the remaining nine vessels subject to the AbleUK contract, the SANTA CRUZ, the AMERICAN BANKER, and the MORMACMOON have been contracted for scrapping by Marine Metal, Inc., of Brownsville, Texas. MARAD is considering domestic disposal proposals for the CAPE ISABEL, the MORMACWAVE, and the AMERICAN RANGE. Recycling at domestic sites will address the DONNOR and the PROTECTOR. Thus, only the RIGEL is still under consideration for export to AbleUK from the original list of 13. MARAD and AbleUK have modified the contract to identify 36 possible substitution vessels, including the RIGEL, but have not determined which of the 36 will actually be exported to Teesside.

MARAD also prepared a draft EA for the "Transfer of NDRF Vessels from the JRRF for Disposal at Able UK [sic] Facilities, Tee[s]side, U.K." AR 2493. The draft EA addressed each of the 9 remaining vessels from the initial contract between MARAD and AbleUK and also identified other vessels that could be considered for substitution. AR 2509, AR 2773D, 2774-75 [Tab 96]. The draft EA was issued in February 2004 and notice of it was placed in local newspapers and in the Federal Register. See 69 Fed. Reg. 9422-02 (Feb. 27, 2004); AR 2602. Sixteen comments, including comments from both Plaintiffs, were received. MARAD published a Final EA in May 2004, which included a response to the comments. AR Vol. 9, 2004 EA, App. E.

MARAD released a Finding of No Significant Impact ("FONSI") on June 29, 2004. AR 2773a. The FONSI concluded, "Based on the requirements, plans, and certifications that are required to be obtained prior to towing obsolete vessels, the potential environmental effects of the Proposed Action specifically, the potential for release of hazardous materials into the environment during tow activities[,] would not be significant" and would be adequately mitigated. AR 2773d.

II. STATUTORY BACKGROUND

A. The National Environmental Policy Act

The National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., requires federal agencies to consider the potential environmental impacts of major federal actions. See 42 U.S.C. § 4332(2)(C)(agencies should prepare an Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment...."); Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-73 (1982). NEPA's mandate is "essentially procedural.... It is to insure a fully informed and well-considered decision...." Vermont Yankee Nuclear Power Corp. v. Nat'l Resources Defense Council, 435 U.S. 519, 558 (1978). Regulations issued by the Council on Environmental Quality, 40 C.F.R. §§ 1500-1508, provide guidance on the application of NEPA. These regulations are entitled to substantial deference from the courts. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989).

Agencies go through a two-step process in the application of NEPA. First, they determine whether any proposed action is a "major Federal action[]" within the meaning of the statute and, presuming the answer to that question is in the affirmative, they prepare an EA to determine whether the action will "significantly affect[] the quality of the human environment," requiring the preparation of a much more detailed EIS. See 40 C.F.R. 1501.4(b); Anacostia Watershed Soc'y v. Babbit, 871 F. Supp. 475, 482 (D.D.C. 1994); see also Town of Cave Creek v. FAA, 325 F.3d 320, 327 (D.C. Cir. 2003). "If a finding of no significant impact is made after analyzing the EA, then preparation of an EIS is unnecessary." Sierra Club v. United States Dep't of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985). The parties do not dispute here that the export of 13 JRRF ships to Teesside, U.K. for ship breaking is a major federal action.

B. Toxic Substances Control Act

The Toxic Substances Control Act ("TSCA"), 15 U.S.C. §§ 2601 et seq., is designed to prevent unreasonable risks of injury to health or the environment associated with the manufacture, processing, distribution in commerce, use and disposal of certain chemical substances and mixtures. The Environmental Protection Agency ("EPA") is directed "to protect adequately against such risk using the least burdensome requirements," 15 U.S.C. § 2605(a), "in a reasonable and prudent manner...." 15 U.S.C. § 2601(c). Congress has given particular attention to polychlorinated biphenyls ("PCBs") because of their toxicity and because they are extremely long-lived in the environment.*fn3 15 U.S.C. § 2605(e); see EDF v. EPA, 636 F.2d 1267, 1271-72 (D.C. Cir. 1980)("The special attention accorded to PCBs in [TSCA] resulted from the recognized seriousness of the threat that PCBs pose to the environment and human health."). Congress banned the manufacture of PCBs after 1978 and the processing and distribution in commerce of PCBs after June 1979, except as exempted by rule upon submission of a petition to the EPA. 15 U.S.C. § 2605(e)(3)(A-C). Congress also directed the EPA to promulgate rules for the disposal of PCBs, 15 U.S.C. § 2605(e)(1)(A), to eliminate PCBs from the environment as well as the economy. See Rollings Envtl. Serv. (FS), Inc., v. Parish of St. James, 775 F.2d 627, 629-30 (5th Cir. 1985).

The EPA has carried out these directives and engaged in comprehensive rulemaking that covers the manufacture, processing, distribution in commerce, use and storage of PCBs, as well as their disposal. 40 C.F.R. Part 761, Subpart B; 44 Fed. Reg. 31, 514 (May 31, 1979). Because PCBs are toxic and yet persist in the environment for so long, PCBs can be exported only after EPA grants an exemption. In 1994, the EPA published a proposed rule that would allow the export of PCBs for disposal, including vessels that contain PCBs. 59 Fed. Reg. 62,788 (Dec. 6, 1994). While this rule has never been finalized, it has also not been withdrawn.

C. Resource Conservation and Recovery Act

Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), codified at 42 U.S.C. §§ 6921-6939e, establishes "a 'cradle-to-grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste." United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir. 1987). RCRA was intended by Congress to "minimiz[e] the generation of hazardous waste and the land disposal of hazardous waste" by "encouraging process substitution, materials recovery, [and] properly conducted recycling and reuse...." 42 U.S.C. § 6902(a)(6).

Before a material can be considered a "hazardous waste" subject to Subtitle C regulation, it first must be a "solid waste." RCRA defines "solid waste" to mean: any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations....

42 U.S.C. § 6903(27). In turn, a "solid waste" is a "hazardous waste" when it may "(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." Id. § 6903(5).

EPA regulations identify solid wastes as hazardous if they exhibit one of four characteristics: ignitability, corrosivity, reactivity, or toxicity. See 40 C.F.R. §§261.20 through 261.24 (Part 261, Subpart C) (so-called "characteristic wastes"). Particular wastes are listed at 40 C.F.R. §§ 261.31 through 261.32 (Part 261, Subpart D) (so-called "listed wastes"). Only hazardous wastes identified by their characteristics in Part 261 Subpart C, or because they are listed in Part 261 Subpart D, are subject to RCRA's hazardous waste regulations. Chemical Waste Mgmt., Inc. v. EPA, 976 F.2d 2, 8 (D.C. Cir. 1992). The EPA has also promulgated regulations that identify certain exemptions and exclusions at 40 C.F.R. §§ 261.2 through 261.9. Of potential relevance here is the regulation at 40 C.F.R. § 261.6(a)(3)(ii), under which recyclable scrap metal is not subject to RCRA hazardous waste regulations.

D. OECD Decision

The Organization for Economic Cooperation and Development ("OECD"), an international organization of which the United States is a member, adopted Council Decision C(92)39/FINAL on March 30, 1992, Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (the "OECD Decision").*fn4 The OECD Decision created three tiers of waste - green, red, and amber - as a graduated control system for the movement of wastes across international borders. On April 12, 1996, the EPA promulgated a final rule at 40 C.F.R. Part 262, Subpart H, to implement the terms and obligations of the OECD Decision. 61 Fed. Reg. 16, 290 (Apr. 12, 1996).

E. Administrative Procedure Act

Plaintiffs rely on the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as the basis for their claims under NEPA and, when the litigation began, for claims under the National Maritime Heritage Act ("NMHA")*fn5 and TSCA. Neither NEPA nor NMHA creates an independent cause of action, and claims under either statute can be pursued only under the APA. See Town of Stratford v. FAA, 285 F.3d 84, 88 (D.D.C. 2002). By contrast, TSCA and RCRA provide a right to judicial review through citizen suits. See 15 U.S.C. § 2619 (TSCA) and 42 U.S.C. § 6972 (RCRA). When a statute provides for direct review, jurisdiction does not normally lie under the APA. Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).

The APA allows review of final agency action or action improperly withheld. 4 U.S.C. §704; s ee also Sierra Club v. Thomas, 828 F.2d 783, 793-95 (D.C. Cir. 1987). Agency actions will be upheld unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A,C). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Louisiana Ass'n of Indep. Producers & ...


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