394 
A similar change is also necessary in the current wording of Sec. 102(a). The pres- 
ent criteria established by the EPA under Sec. 102 (40 C.F.R. Part 227, 44 Fed. Reg. 
2462 et. seq., January 11, 1977) base the crucial determination of “acceptability” of 
dredged material for ocean dumping entirely upon environmental factors, i.e., 
whether the results of laboratory bioassay and bioaccumulation testing indicate a 
“potential” for “‘significant undesirable effects’. (40 C.F.R. § 227.6, 42 Fed. Reg. 
2477-2478). The past experience of ports under this standard highlights its unrea- 
sonableness and the need to amend Sec. 102(a) to require a consideration of all 
“public interest” factors in the issuance of dredged material permits.° 
To rely upon environmental concerns to the exclusion of all other public interest 
factors is inherently unsound and falls far short of the duty to consider the interests 
and welfare of the public as a whole. The determination of whether adverse affects 
from dumping may be “significant”, or whether ‘degradation” should be considered 
“unreasonable”, is necessarily a value judgment which requires consideration of all 
relevant factors—not just environmental concerns, but social, political, and econom- 
ic needs and conditions as well. This consideration is especially necessary in the 
case of ports because of the “public” status of most ports and the “public interests” 
which ports serve. 
Strong policy reasons also militate against any provision which would prohibit 
proposed ocean disposal of dredged material irrespective of the overall “public inter- 
est”. To ignore such considerations would, in effect, grant to the agencies involved 
the absolute right to determine and define the public interest—in advance and in 
every case—solely on the basis of narrow, environmental concerns. 
Reliance upon environmental concerns alone also ignores the need—rooted in the 
requirement of due process of law—that an opportunity be afforded a permit appli- 
cant to demonstrate that issuance of a permit, even considering the anticipated “ad- 
verse effects’, would be appropriate and serve the “public interest’ in a given case. 
as ie Court pointed out in WAIT Radio v. FCC, 418 F.2d 1153, 1157-1158 (D.C. Cir., 
1969): 
“.. . That an agency may discharge its responsibilities by promulgating rules of 
general application which, in the overall perspective, establish the ‘public interest’ 
for a broad range of situations, does not relieve it of an obligation to seek out the 
‘public interest’ in particular, individualized cases. ... A general rule, deemed 
valid because its overall objectives | are in the public interest, may not be in the 
‘public interest’ [in other cases] . 
See also, Southwest Pennsylvania ‘Cable T.V., Inc. v. FCC, 514 F.2d 1848, 1347 (D.C. 
Cir. 1975); and Community Service, Inc. v. United States, 418 F.2d 709, 712 (D.C. Cir. 
1969). The need to allow an “exception” or “departure” from any general prohibi- 
tion against “degradation” when circumstances (e.g., the “public interest’) warrant 
it is a necessary adjunct of the permit process. United States v. Allegheny-Ludlum 
Steel Corporation, 406 U.S. 742, 755, 32 L.Ed, 2d 453, 464; and EPA v. National 
Crushed Stone Association, 101 S. Ct. 295, 301 (1980), citing H. I. Dupont de Nemours 
and Co. v. Train, 430 U.S. 112, 128, 51 L.Ed. 204, 217 (1977). 
There is a strong need to amend the MPRSA to require a consideration of all fac- 
tors affecting the ‘“‘public interest” in determining the “acceptability” of a proposed 
ocean disposal of dredged material. In the case of the MPRSA, this change could be 
accomplished in either of two ways. 
First, Sec. 102(a) could be amended by striking out the provision that provides: 
“* * * The Administrator shall establish and apply criteria for evaluating such 
permit applications, and, in establishing or revising such criteria, shall consider, but 
not be limited in his consideration to, the following: * * *” and by substituting in 
lieu thereof the following provision (new language italicized): 
“* * * The Administrator shall establish and apply criteria for reviewing and 
evaluating such permit applications, which criteria shall determine the acceptability 
of the proposed dumping based upon a consideration of, all factors affecting the 
public interest, including but not limited to the following: * 
The above amendment would require the criteria sce lished by the Administra- 
tor to base the permit decision upon a consideration of all public interest concerns, 
including the listed statutory factors. This would preclude the use of any one con- 
cern—e.g., environmental concerns—as the sole basis for determining “acceptabil- 
®° The shortcomings of attempting to rely solely upon laboratory test results-as a basis for 
permit decisions were described in great detail by the AAPA in previous testimony before the 
Committee on Merchant Marine and Fisheries, Mar. 14, 1980, in the consideration of H.R. 6361 
(“A Bill to Amend the Marine Protection Research and Sanctuaries Act of 1972 in Order to Sus- 
pend Temporarily the Use of Bioaccumulation and Biomagnification Testing in the Applications 
Relating to Ocean Dumping of Dredged Material, and for Other Purposes’’). 
