Marine Protection, Research and Sanctuaries Act (MPRSA) and Federal Facilities

Summary

The Marine Protection, Research, and Sanctuaries Act (MPRSA, also known as the Ocean Dumping Act) regulates the disposition of material into the ocean and prohibits the dumping of material into the ocean that would unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities (33 U.S.C. 1401 et seq). The MPRSA applies to all ocean waters seaward of the baseline from which the territorial sea is measured. Generally speaking, the baseline is the mean lower low water line (ordinary low water mark) along the coast or “closing lines” that are drawn on maps across rivers mouths and openings of bays and that are depicted on official United States Nautical Charts (i.e., National Oceanic and Atmospheric Administration (NOAA) nautical charts for a region).

The broad definition of dumping includes the disposition of any material, but excludes, among other things, the following:

effluent from an outfall structure regulated under the Clean Water Act or the Atomic Energy Act;
routine discharge of effluent incidental to the propulsion or operation of motor-driven equipment on vessels;
the construction of a fixed structure or artificial island or the intentional placement of any device in ocean waters or on or in the submerged lands beneath such waters, for a purpose other than disposal, when such construction or placement is otherwise regulated by federal or state law or occurs pursuant to an authorized federal or state program.

Federal agencies and departments have regulatory responsibilities under the MPRSA, including applying for and obtaining MPRSA permits for the transportation of any material from any location for the purpose of ocean dumping. The MPRSA bans the ocean disposal of certain harmful wastes, specifically, radiological, chemical, and biological warfare agents, high-level radioactive wastes, medical wastes, sewage sludge, and industrial wastes. Part of EPA's mission is to ensure that federal agencies and departments comply with these requirements.

Before the MPRSA, many harmful materials were dumped into the ocean including industrial waste, sewage sludge, radioactive waste, demolition waste, and contaminated dredged material. The primary material that is still dumped into the ocean today is uncontaminated dredged material (sediment) removed from the bottoms of water bodies to maintain navigation channels and docks. The U.S. Army Corps of Engineers (Corps) makes the decision to issue a permit for the ocean dumping of dredged material using EPA's environmental criteria. Permits for ocean dumping of dredged material are subject to EPA review and written concurrence.

For all other materials, EPA is the permitting agency.

EPA’s application of the ocean dumping criteria considers, among other things:

the environmental impact of the dumping;
the need for the dumping;
the effect of the dumping on esthetic, recreational, or economic values;
land-based alternatives to ocean dumping; and
the adverse effects of the dumping on other uses of the ocean

EPA is responsible for designating and managing ocean dumping sites under the MPRSA for all types of materials, dredged material and otherwise. Management of ocean disposal sites involves regulating the times, quantity and characteristics of material dumped at the site; and establishing disposal controls, conditions and requirements to avoid or minimize potential impacts to the marine environment. All EPA-designated sites are required to have a site management and monitoring plan.

EPA may issue different types of permits, some of which require use of a designated site and others specify the areas where materials may be dumped as a condition in the permit. EPA has issued MPRSA “general permits” authorizing burial at sea of human remains, transportation and disposal of vessels at sea, transportation of target vessels for ocean disposal, ocean disposal of man-made ice piers in Antarctica, and ocean disposal of marine mammal carcasses. EPA also issues “emergency permits” for ocean dumping, but only when an emergency poses unacceptable risk relating to human health and there is no other feasible solution.

EPA’s published ocean dumping regulations appear at 40 CFR Parts 220-229. See “Ocean Dumping” for additional information pertaining to ocean dumping under the MPRSA.

Federal Facilities Responsibilities Under the MPRSA

Apply for, obtain, and comply with permits for ocean dumping of regulated material;
Do not dump prohibited materials into the ocean;
Comply with conditions and requirements, including monitoring, notification, and reporting, under MPRSA general permits

Basics of the MPRSA and Application to Federal Facilities

Among other things, MPRSA section 101 prohibits the unpermitted transportation by any officer, employee, agent, department, agency, or instrumentality of the federal government of any material from any location for the purpose of ocean dumping.

As noted above, ocean dumping of dredged material is permitted by the Corps with EPA’s case-by-case concurrence, and only at ocean dump sites designated by EPA through rulemaking or, if use of such sites is infeasible, at an alternative site selected by the Corps and subject to EPA concurrence. Use of such alternative sites is limited to five years (with an optional five-year extension contingent on three statutory conditions).

In lieu of dredged material dumping permits, the MPRSA provides for application of the MPRSA’s substantive provisions (that would otherwise apply through a permit) directly for federal projects involving dredged materials. Nationally, the Corps (or its contractors) dredge and ocean dump most dredged material (by volume) for navigational maintenance purposes. Regardless of whether the dredging occurs as part of a federal or private project, the permittee (or the Corps in the case of federal projects) must evaluate all sediments to ensure that ocean disposal will not cause significant harmful effects to human health or the marine environment. MPRSA regulations prohibit the disposal of uncharacterized dredged material in the ocean. EPA has promulgated regulatory criteria to ensure that the ocean disposal of dredged material does not cause environmental harm.

EPA may issue a permit to authorize the ocean dumping of materials other than dredged material if, after notice and opportunity for public review or public hearings, the Administrator determines that proposed ocean dumping will not unreasonably degrade or endanger human health, welfare, the marine environment, or economic potentialities. The Administrator may require a permit applicant to provide information necessary for the review and evaluation of the application. Federal agencies and instrumentalities of the United States may apply, with the concurrence of EPA, for a permit from a foreign State Party to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (also called the London Convention) for transportation for the purposes of dumping from that foreign State.

EPA’s MPRSA permit categories include the following:

General permits (issued for materials that will have minimal adverse environmental impact and are generally disposed of in small amounts);
Special permits (for periods not to exceed 3 years);
Research permits (when the scientific merit of the research project outweighs the potential for environmental or other damage that may result, for periods not to exceed 18 months); and
Emergency permits (when there is a demonstration of a marked sense of urgency requiring dumping of materials that pose an unacceptable risk to human health and that admits of no other feasible solution).

MPRSA permits include specifications for the:

type of material that may be dumped,
amount that may be transported for ocean dumping,
location of the dumpsite,
length of time the permit is valid, and
special provisions for surveillance.

For example, under the general permit for ocean dumping of vessels, vessel sinking cannot occur unless EPA concurs that the proposed action complies with the conditions of the permit (published at 40 CFR 229.3), including removal of all readily detachable material capable of creating debris or contributing to chemical pollution.

Proposed activities related to climate change that are being considered in ocean waters may require an MPRSA permit. An MPRSA permit may be needed for field research, large-scale field trials, and field deployment of carbon dioxide removal (CDR), ocean alkalinity enhancement, or solar radiation management (SRM) activities if the activities involve the disposition of material into the ocean environment.

Potential permit applicants for these types of activities should first review the requirements for MPRSA permit applications in the Ocean Dumping Regulations (40 CFR Parts 220-229) and then contact the primary contact for Ocean Dumping Management Program at EPA Headquarters to discuss the applicability of the MPRSA to their proposed activities and to determine what type of MPRSA permit (research, special, or general permit) would be most appropriate.

As provided in the exclusions from the MPRSA definition of dumping, not all activities that might otherwise seem like dumping to the layperson are dumping regulated under the MPRSA. For example, the Clean Water Act (CWA) regulates all point source discharges of pollutants into navigable waters, including the territorial seas, and the MPRSA definition excludes effluent from an outfall structure to the extent regulated under the CWA. Questions sometimes arise about which of the two federal statutes apply in any given scenario. In such instances, EPA staff are available to assist in determining applicable federal requirements.

Finally, Title II authorizes EPA to conduct research in relation to ocean disposal alternatives and to consider, in cooperation with other federal agencies, the feasibility of regional management plans for waste disposal in coastal areas.

Site Designation

EPA is the lead federal agency responsible for designating and managing ocean disposal sites, including site management and monitoring plans for dredged materials dump sites, and is the initiating agency for enforcement actions. If use of an existing dredged material ocean disposal site is not feasible, the Corps may select an alternative site with EPA concurrence. EPA is the lead federal agency for compliance with the National Environmental Policy Act (NEPA), and subsequent rule making for designating a new site.

A site management and monitoring plan (SMMP) is developed for EPA-designated sites that specifies all aspects of management of the site and the type and frequency of monitoring activities necessary to ensure that conditions at the site remain as projected. Monitoring activities are typically of two main types:

Compliance monitoring typically includes the use of GPS-based navigation tracking and draft sensor systems to determine proper transportation and disposal operations.
Confirmatory field monitoring typically includes physical, chemical, and/or biological field surveys to determine the effectiveness of the pre-disposal testing program (material suitable for ocean disposal) and to confirm site use and management through the SMMP is sufficiently protective of the marine environment.

If monitoring suggests that disposal operations are endangering the marine ecosystem, human health, or other uses of the ocean, the Administrator may modify, suspend, or terminate site use.

EPA Enforcement

Sections 105 and 107 contain the MPRSA’s penalties and enforcement provisions (33 U.S.C. §§ 1415, 1417). MPRSA section 105(c) provides that each day of a continuing violation, or dumping from several vessels or sources, constitutes a separate offense for imposing civil penalties and criminal fines. The MPRSA also authorizes criminal penalties and injunctive relief.

The United States and citizens may take enforcement action against any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who violates any MPRSA prohibition, limitation, criterion, or permit. (33 U.S.C. § 1415). The MPRSA provides that “person” means “any private person or entity, or any officer, employee, agent, department, agency, or instrumentality of the federal government, of any state or local unit of government, or of any foreign government” (33 U.S.C. § 1402(e)).

EPA is the initiating agency for enforcement for any violations related to ocean disposal operations, such as:

dumping of unauthorized materials,
materials in excess of authorized amounts,
dumping outside of designated or alternative sites,
spills, and leaks from hopper dredges, barges, or scows during transit to the ocean disposal sites

The MPRSA authorizes EPA to assess penalties after providing written notice and opportunity for a hearing. For administrative actions assessing a penalty or suspending or revoking a MPRSA permit, EPA may pursue penalties using the hearing procedures promulgated under EPA’s Consolidated Rules of Practice, 40 C.F.R. Part 22.

Civil Penalties

Any person who violates any provision of the MPRSA or the implementing regulations, or a permit under the MPRSA, is liable for a civil penalty of not more than $50,000 for each violation. Any person who engages in the dumping of medical waste is liable for a civil penalty of not more than $125,000 for each violation.

Pursuant to the Federal Civil Penalties Inflation Act of 1990, 28 U.S.C. § 2461 note, amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, EPA has published inflation-adjusted maximum penalties. See 40 CFR § 19.4. When determining the amount of a civil penalty, EPA considers the following:

gravity of the violation;
the existence of prior violations; and
whether the person charged with the violation has demonstrated a good faith effort to "achieve rapid compliance after notification of a violation."

Criminal Penalties

The MPRSA also authorizes criminal penalties (including fines, 5 years in prison, or both) for knowing violations of the MPRSA or the implementing regulations. The MPRSA provides for the seizure of any property used to commit or facilitate the violation, or any property derived from any proceeds that the person obtained, directly or indirectly, as the result of the violation.

State Enforcement

The MPRSA has no state enforcement provisions other than the citizen suit provisions.

Tribal Enforcement

The MPRSA has no tribal enforcement provisions other than the citizen suit provisions.

Citizen Enforcement

MPRSA §105(g), 33 U.S.C. §1415(g), allows any person to file a civil suit against any Federal government agency or instrumentality alleged to be in violation of any prohibition, limitation, criterion, or permit established by MPRSA.

MPRSA subsection 105(g)(2) prohibits citizen suits until at least 60 days after notice of the violation has been given to the EPA or the Corps (in the case of dredged materials) and the alleged violator. Subsection 105(g)(2) also precludes citizens from filing a civil action if EPA, the Attorney General, or the Corps has filed and is diligently prosecuting a civil or criminal action to redress a violation of MPRSA or compel compliance with one of its prohibitions, limits, criteria, or permits or if EPA has commenced action to impose an administrative penalty (or if EPA or the Corps (in the case of dredged materials) has initiated permit revocation or suspension proceedings).

EPA MPRSA Regulations

40 CFR Parts 220-229 (Reference look-up: e-CFR)

Part 220 General, including categories of permits
Part 221 Applications for Ocean Dumping Permits Under Section 102 of the Act
Part 222 Action on Ocean Dumping Permit Applications Under Section 102 of the Act
Part 223 Contents of Ocean Dumping Permits Issued Under Section 102 of the Act; Procedures for Revision, Revocation or Limitation of Ocean Dumping Permits Under Section 104(d) of the Act
Part 224 Records and Reports Required of Ocean Dumping Permittees Under Section 102 of the Act
Part 225 Corps of Engineers Dredged Material Permits
Part 227 Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials
Part 228 Criteria for the Management of Disposal Sites for Ocean Dumping
Part 229 General Permits