396 
pacts upon the marine environment, (ii) the alternative means of disposal will have 
a lesser adverse impact than ocean dumping, and (iii) the alternative means of dis- 
posal can be utilized at a reasonable cost and energy expenditure. A statement of 
these criteria in the conjunctive is essential to a standard of “reasonableness”. 
(3) The “Trace Contaminants” Problem of Sec. 102 (aX1).—Sec. 102(a)(1), pp.4-5, 
prohibits dumping of any materials which, on the basis of chemical and toxicological 
testing, are found to contain more than “trace amounts” of certain designated sub- 
stances which are listed in Annex I to the London Dumping Convention. It is un- 
clear whether this “trace amounts” provision is intended to apply to dredged mate- 
rial, since there is no mention of Sec. 102(a)(1) in Sec. 103. If it is intended to apply, 
the AAPA submits that changes are required in the provision for a number of 
reasons. 
(a) Use of the term ‘trace amounts”, without providing a definition of the term, 
will only invite controversy and litigation. If the experience of the past has taught 
anything at all, it is that use of this undefined term will present recurring permit 
delays and threats of permit denial based upon the asserting that more than “trace 
amounts” of the specified substances are present. 
(b) The proposed language would also base the determination of ‘“‘trace amounts” 
solely on “chemical and toxicological testing.” In view of the absolute prohibition 
where more than “trace amounts” are found, such a critical determination should 
not be based solely on numerical test results, but should be made in the context of 
the entire permit application and should be related to the presence of Annex I sub- 
stances in such quantities as to cause “unreasonable degradation.” Indeed, if the 
material to be dumped contains Annex J substances but nevertheless will not cause 
“unreasonable degradation”, then there is no sound reason for prohibiting the 
dumping at all. : 
The difficulty in relying upon test procedures alone in making the ‘“‘trace 
amounts” determination was described in great detail by the AAPA in testimony 
before the Committee on March 14, 1980, in hearings upon H.R. 6361. See Part A, p. 
13 note 9, supra. In that testimony, the AAPA pointed out that neither the London 
Dumping Convention nor its Annexes require the use of any specified test procedure 
in making this determination. Most other countries utilize an overall “risk assess- 
ment” based on all relevant data and information, much the same as the “unreason- 
able degradation” determination recommended by the AAPA. 
(c) Because the reference to ‘“‘trace amounts” is derived from the Convention, 
some parties—notably the National Wildlife Federation (the ‘““NWF’)— may assert 
(as the NWF has asserted in the past) that when the results of testing indicate more 
than “trace amounts” of ‘Annex I substances’, the Convention prohibits the grant- 
ing of a permit independently of the MPRSA and, more importantly, prohibits the 
Administrator from granting, upon request of the Secretary, a waiver of compliance 
with the criteria under Sec. 103(d). This “asserted conflict” 1° between the Conven- 
tion and Sec. 103(d) of the MPRSA can be avoided by providing that the “trace 
amounts” determination will be made as part of the overall determination of “un- 
reasonable degradation’’—a form of the risk assessment used by other Contracting 
Parties to the Convention. The AAPA also urges that any doubt as to the availabil- 
ity of a waiver under Sec. 103(d) be removed by providing that the “trace amounts” 
prohibition is “* * * subject to the provisions of Sec. 108(d).” 
(d) The AAPA also submits that any “trace amounts” prohibition should contain 
an exclusion where Annex I substances are “rapidly rendered harmless” by physi- 
cal, chemical, or biological processes in the sea, or where, through the use of “spe- 
cial care” measures in disposal, polluted dredged material can be dumped without 
“unreasonable degradation” of the marine environment. Both exclusions apply 
under the Convention.?!1 
The concerns expressed in (a)-(d) above could be satisfied by adding the following 
definition of “trace amounts” to Sec. 102(a)(1)(E) of the Discussion Draft (p. 5): 
10 Tn the previous testimony of the AAPA before the Committee on March 14, 1980, the AAPA 
demonstrated that there is, in fact, no conflict between the waiver provisions of section 103(d) 
and the convention. See AAPA Prepared Statement, pp. 42—46. Moreover, to the extent that a 
conflict were to exist, the MPRSA would clearly prevail since it is later in date than the conven- 
tion. Chew Heong v. U.S., 112 U.S. 536 550, 28 L. Ed. 770 774 (1884); Chae Chan Ping v. U.S. (the 
Chinese Exclusion case), 130 U.S. 581, 600-601, 32 L.Ed. 1068; and Reid v. Covert, 354 US. 1, 18, 
1 L.Ed.2d 1148, 1164 (1957). 
11 The “rapidly rendered harmless” exclusion is provided in paragraph 8 of Annex I to the 
Convention. The use of “special care’ measures in the dumping of Annex I substances was ap- 
proved by the Ad Hoc Scientific Group and by Contracting Parties, on a test basis, at the Sixth 
Consultative Meeting. See Part A, supra. 
