[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12216]


[[Page Unknown]]

[Federal Register: May 20, 1994]


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Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 227




Clarification of Suspended Particulate Phase Bioaccumulation Testing 
Requirements for Material Dumped in Ocean Waters; Final Rule and 
Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 227

[FRL-4886-5]

 
Clarification of Suspended Particulate Phase Bioaccumulation 
Testing Requirements for Material Dumped in Ocean Waters

AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.

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SUMMARY: EPA today is issuing an interim final rule interpreting and 
clarifying the ocean dumping regulations. The rule clarifies provisions 
of the regulations related to bioaccumulation testing of the suspended 
particulate phase of materials proposed to be dumped at sea. This rule 
would make clear that for the suspended particulate phase of the dumped 
material, it is unnecessary to perform bioaccumulation testing. This 
clarification applies to the suspended particulate phase only and does 
not affect any other testing requirements contained in the regulations. 
EPA believes that bioaccumulation testing of the suspended particulate 
phase is unnecessary and inappropriate. The Agency has not previously 
interpreted or applied its regulations to require such testing. EPA is 
issuing this rule to remove any possible ambiguity. This interim final 
rule is effective immediately. By separate notice of proposed 
rulemaking published elsewhere in today's Federal Register, EPA also is 
publishing and seeking comment on a proposed rule, identical to this 
interim final rule, that also clarifies that bioaccumulation testing 
for the suspended particulate phase of dumped material is not required.

DATES: This interim final rule becomes effective May 20, 1994. Written 
comments on this interim final rule will be accepted until 30 days 
after May 20, 1994. All comments must be postmarked or delivered by 
hand by June 20, 1994.

ADDRESSES: Send written comments on the interim final rule to the Ocean 
Dumping Interim Final Rule Comment Clerk; Water Docket, MC-4101, 
Environmental Protection Agency, 401 M Street, SW., Washington, DC, 
20460. Commenters are requested to submit any references cited in their 
comments. Commenters are also requested to submit an original and three 
copies of their written comments and enclosures. Commenters who want 
receipt of their comments acknowledged should include a self-addressed, 
stamped envelope. No facsimiles (faxes) will be accepted.
    A copy of the comments and supporting documents cited in the 
reference section of this document are available for review at EPA's 
Water Docket, room L-102, 401 M Street SW., Washington, DC 20460. For 
access to the docket materials, call 202/260-3027 between 9 a.m. and 
3:30 p.m. for an appointment.

FOR FURTHER INFORMATION CONTACT: John Lishman, Chief, Marine Pollution 
Control Branch, Oceans and Coastal Protection Division (4504F), U. S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, telephone 202/260-8448.

SUPPLEMENTARY INFORMATION:

A. Statutory and Regulatory Background

    The Ocean Dumping Regulations, which govern the evaluation and 
permitting of material to be ocean dumped, were promulgated by EPA on 
January 11, 1977, under title I of the Marine Protection, Research, and 
Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq. 
(hereinafter ``the Act'' or ``the MPRSA''). These regulations are 
contained in 40 CFR parts 220-229. They have not undergone substantive 
revision since 1977.
    The MPRSA prohibits transporting materials from the United States 
for the purpose of ocean dumping without a permit, and prohibits U.S. 
instrumentalities and U.S. registered or flagged vessels from 
transporting materials from any location for the purpose of ocean 
dumping without a permit. The Act also prohibits the unpermitted 
dumping of material transported from a location outside the United 
States into the territorial sea or contiguous zone, if the dumping 
affects the territorial sea or U.S. territory.
    Section 102(a) of the MPRSA requires the Administrator, in 
establishing criteria for ocean dumping, to apply the standards and 
criteria binding upon the United States under the Convention on the 
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 
(referred to in this rulemaking as ``the London Convention,'' ``the 
LC,'' or ``the Convention'', and formerly known as the London Dumping 
Convention), including its Annexes, to the extent EPA may do so without 
relaxing the requirements of MPRSA title I.
    Annex I of the LC contains absolute prohibitions on the dumping of 
certain listed materials, except when they are present as ``trace 
contaminants'' or when they are ``rapidly rendered harmless'' by 
physical, chemical, or biological processes in the sea. Annex II of the 
LC contains a list of materials for which ``special care'' must be used 
in their disposal if they are present in ``significant amounts''. Annex 
III of the LC contains a list of technical considerations to be 
considered in establishing criteria to implement the requirements of 
the Convention.
    Under section 102(a) of the Act, 33 U.S.C. 1412(a), EPA has 
responsibility for issuing permits for ocean dumping of all materials 
other than dredged material. Under section 103(a) of the Act, 33 U.S.C. 
1413(a), the Secretary of the Army has responsibility for issuing 
permits for ocean dumping of dredged material. This permitting 
authority has been delegated to the Army Corps of Engineers (``the 
Corps''). EPA's role in regard to Corps issuance of dredged material 
disposal permits is one of review and concurrence. (Although the Corps 
is the permitting authority for dredged material, section 103 of the 
Act establishes a substantial role for EPA with regard to evaluation of 
the impacts of dredged material ocean disposal.)
    Under sections 102(a) and 103(a) of the Act, 33 U.S.C. 1412(a) and 
1413(a), ocean dumping permits may be issued upon a determination that:

    The dumping will not unreasonably degrade or endanger human 
health, welfare, or amenities, or the marine environment, ecological 
systems, or economic potentialities.

    The Act directs EPA to establish criteria for evaluating ocean 
dumping permit applications and requires that EPA consider the 
following factors in establishing these criteria:
    (A) The need for the proposed dumping.
    (B) The effect of such dumping on human health and welfare, 
including economic, aesthetic, and recreational values.
    (C) The effect of such dumping on fisheries resources, plankton, 
fish, shellfish, wildlife, shorelines and beaches.
    (D) The effect of such dumping on marine ecosystems particularly 
with respect to--
    (i) The transfer, concentration, and dispersion of such material 
and its by-products through biological, physical, and chemical 
processes,
    (ii) Potential changes in marine ecosystem diversity, productivity, 
and stability, and
    (iii) Species and community population dynamics.
    (E) The persistence and permanence of the effects of the dumping.
    (F) The effect of dumping particular volumes and concentrations of 
such materials.
    (G) Appropriate locations and methods of disposal or recycling, 
including land-based alternatives and the probable impact of requiring 
use of such alternative locations or methods upon considerations 
affecting the public interest.
    (H) The effect on alternative uses of oceans, such as scientific 
study, fishing, and other living resource exploitation, and nonliving 
resource exploitation.
    (I) In designating recommended sites, the Administrator shall 
utilize, wherever feasible, locations beyond the edge of the 
Continental Shelf. (section 102(a), 33 U.S.C. 1412(a).)
    Under section 103(b) of the Act, 33 U.S.C. 1413(b), when 
considering whether to issue a dredged material disposal permit, the 
Corps (as designee of the Secretary of the Army) must apply the EPA 
criteria relating to the effect of the dumping. If the Corps determines 
that the proposed dumping meets those environmental effects criteria, 
MPRSA Sec. 103(c), 33 U.S.C. 1413(c), provides that it must notify the 
EPA of its intention to issue the permit. EPA must then evaluate the 
environmental impacts of the proposed permit, and either concur or 
decline to concur in the Corps determination regarding compliance with 
the environmental effects criteria.
    In the event that EPA nonconcurs in a dredged material ocean 
dumping permit, section 103(d) of the Act, 33 U.S.C. 1413(d), allows 
the Secretary of the Army to seek a waiver of the criteria from the 
Administrator. To obtain a waiver, the Secretary must certify to the 
Administrator that there are no economically feasible alternatives to 
the proposed dumping and must request a waiver of the specific criteria 
involved. The Act provides that the waiver shall be issued within 30 
days, unless the Administrator finds that the dumping will result in 
unacceptably adverse impacts on municipal water supplies, shellfish 
beds, wildlife, fisheries, or recreational areas.
    Under section 102(c) of the MPRSA, 33 U.S.C. 1412(c), EPA is 
further charged with designating recommended sites and times for 
dumping after consideration of the section 102(a) criteria described 
above. EPA must designate sites or times for dumping that mitigate 
adverse environmental impacts to the greatest extent practicable. EPA 
may also designate sites or times within which certain materials may 
not be dumped if, after consultation with the Corps, EPA finds that it 
is necessary to protect critical areas. In addition, section 103(b) of 
the Act, 33 U.S.C. 1413(b), provides that in considering appropriate 
locations for disposal of dredged material, the Corps shall utilize 
sites designated by EPA under section 102(c), to the maximum extent 
feasible.
    Under section 103(b), in any case where the use of an EPA-
designated dredged material disposal site is not feasible, the Corps 
may select an alternative site with EPA's concurrence. Selection of the 
site shall be based on the section 102(a) criteria previously 
described. Disposal at an alternative site shall be limited to five 
years, unless the site is subsequently designated by EPA pursuant to 
section 102(c). An alternative site may be used for an additional five 
years if:
    (1) No feasible site has been designated by EPA;
    (2) Continued use of the alternative site is necessary to maintain 
navigation and facilitate interstate commerce; and
    (3) EPA determines that the use of the site does not pose an 
unacceptable risk to human health, aquatic resources, or the 
environment.
    Beginning on January 1, 1997, no ocean dumping permit, or 
authorization under section 103(e) of the Act, shall be issued for a 
site which does not have a site management plan, unless it is an 
alternative site selected under section 103(b).

B. Discussion

1. The Litigation

    On June 1, 1993, Clean Ocean Action, an organization concerned with 
issues affecting oceanic water quality, and others (``the 
plaintiffs''), filed a complaint and request for injunctive relief in 
the United States District Court against the U.S. Army Corps of 
Engineers, EPA, and the Port Authority of New York and New Jersey 
(``the Port Authority''), challenging the issuance of a permit to the 
Port Authority (Clean Ocean Action v.  York, Civil No. 93-2402, D. 
N.J.). The permit authorized the Port Authority to perform up to 
500,000 cubic yards of maintenance dredging from two Port Authority 
facilities in Newark Bay, and to deposit the dredged material in the 
Atlantic Ocean at the New York Bight Dredged Material Disposal Site 
(also known as the Mud Dump Site). This area has been used to deposit 
dredged material since 1914.
    The permit was issued on January 6, 1993, suspended on January 14, 
1993, at the request of EPA, and reinstated on May 26, 1993, after 
further review by EPA and the Corps. The plaintiffs sought to have the 
permit invalidated on the basis that it was impermissibly granted. In a 
decision on June 7, 1993, the Court denied the plaintiffs' request to 
enjoin the dredging of the Port Authority facilities. However, the 
Court raised concerns in its decision that applicable regulations may 
not have been followed, and ordered the Port Authority to demonstrate 
that the permit had been lawfully issued. After submissions by the Port 
Authority and the plaintiffs, the Court issued a second opinion on July 
6, 1993, which preliminarily determined that additional testing of the 
dredged material was required, because bioaccumulation testing on 
pelagic organisms in the suspended particulate phase had not been 
conducted prior to the granting of the permit to the Port Authority.
    Under 40 CFR 227.6, materials proposed for dumping may not contain 
any of the following contaminants, unless these compounds are 
determined to be present only in trace amounts: (1) Organohalogen 
compounds; (2) mercury and mercury compounds; (3) cadmium and cadmium 
compounds; (4) oil of any kind, or in any form, transported for the 
purpose of dumping, to the extent that the discharge is not regulated 
under the Clean Water Act; and (5) known or suspected carcinogens, 
mutagens, or teratogens. Whether these contaminants are present in 
trace amounts in the material proposed for disposal is determined by 
conducting biological tests on living marine organisms. These tests, 
known as bioassays, must be conducted according to procedures approved 
by EPA and the Corps.
    Bioassays are conducted using both marine organisms that live in 
the water column (known as pelagic organisms), and organisms that live 
on or in the ocean floor (known as benthic organisms). The results of 
these bioassays determine the potential for, and the extent of, impacts 
on the marine environment. These impacts include acute effects, such as 
lethality, as well as chronic effects, such as mutagenic growth and 
reproductive dysfunction. The potential for chronic effects are 
evaluated, in part, on the results of bioaccumulation bioassays, which 
indicate the degree to which contaminants have accumulated in the 
tissues of the organisms being tested. The Court determined that 40 CFR 
227.6(c)(2) of the ocean dumping regulations required that suspended 
particulate phase bioaccumulation tests must be conducted on pelagic 
organisms, and that this requirement was not met prior to permit 
issuance.
    As a result of this interim opinion, there is uncertainty as to 
whether permit applicants must perform bioaccumulation testing for the 
suspended particulate phase of dumped material. Today's rule, 
consistent with the Agency's interpretation of the existing regulations 
and its long-standing practice, is intended to clarify that suspended 
particulate phase bioaccumulation testing of dumped material is not 
required.
    Suspended particulate phase bioaccumulation testing of dumped 
material is unnecessary and inappropriate for three principal reasons. 
First, exposure to the suspended particulate phase in the environment 
does not provide sufficient time for bioaccumulation; second, 
bioaccumulation testing of marine organisms in the solid phase already 
provides a worst case indication of the bioaccumulation potential, so 
that separate suspended phase testing would be unnecessary in any 
event; and third, no reliable tests are available for bioaccumulation 
in the suspended particulate phase of dumped materials. Further 
discussion of these points follows below.
1. Exposure to the Suspended Particulate Phase Does Not Provide 
Sufficient Time for Bioaccumulation
    For appreciable bioaccumulation to occur in aquatic organisms, 
exposure to the potential bioaccumulant for up to one month is 
generally necessary. In contrast, suspended particulate material from 
dumping operations is a short-term and near-field (limited area) 
phenomenon in the marine environment (References 3, 4, 5). As a result, 
the potential for appreciable bioaccumulation in marine organisms from 
the suspended particulate phase is very low (Reference 6). This is due 
to the transient nature of the suspended particulate phase, as a result 
of dilution and dispersion by movement of the water column and settling 
of the material to the bottom, as well as the mobility of marine 
species that could be impacted by exposure to the suspended particles 
(References 1, 2, 7). Recent Agency state-of-the-art plume tracking 
studies (Reference 15), which examined the disposal of the New York/New 
Jersey Port Authority dredged material, have also confirmed the 
transient nature of the suspended phase, finding that suspended 
particulate phase plumes could be acoustically and physically detected 
for only a few hours after dumping. Studies at the Mud Dump Site (where 
the water depth is approximately 90 feet) demonstrate the rapid 
dilution and dispersion of dumped material following ocean dumping. 
Dissolved metals and non-polar organic compounds such as dioxin were 
diluted at least 3,000 times within 15 minutes of dumping; suspended 
particulate matter was diluted at least 10,000 times in the same time 
period (References 15, 16). After two hours, the metals and non-polar 
organics were diluted up to 64,000 times; the suspended particulates 
were diluted by more than 500,000 times (Reference 18).
    Given the physical characteristics of suspended particulate plumes, 
and the life history characteristics of the marine species potentially 
impacted by them, the potential exposure durations are of such short 
term (at most, only a few hours), that appreciable bioaccumulation is 
extremely unlikely (References 8, 9). Reflecting this, the 1977 edition 
of EPA's Dredged Material Testing Manual (known as the ``Green Book'') 
states ``* * * it is considered unlikely that bioaccumulation would 
occur at the disposal site from the suspended particulate phase, since 
animals would be exposed to it for such short periods [of time], due to 
dilution [of the dumped material in the water column] * * *'' 
(Reference 1). The manual concluded, ``(b)ioaccumulation from the 
suspended particulate phase is of secondary concern (compared to the 
solid phase), except in special cases, due to the short exposure time 
resulting from rapid dispersion of the suspended particulates by 
mixing'' (Reference 1). This view was based on studies performed by the 
Corps (Reference 13). The 1991 edition of the Dredged Material Testing 
Manual corroborates this view: ``Because concern about bioaccumulation 
focuses on the impact of gradual uptake over long exposure times, 
primary attention [must be] given to the dredged material deposited on 
the bottom. Bioaccumulation from the material in the water column is 
generally of minor concern, due to the short exposure time and the low 
exposure concentrations, resulting from rapid dispersion and dilution'' 
(Reference 2).
    As noted above, for appreciable bioaccumulation to occur in a 
marine organism, a period of exposure for up to one month is generally 
necessary, by whatever exposure route is used, whether it is food 
ingestion, absorption through gill membranes from the water column, or 
a combination of these mechanisms (Reference 19). Designing and 
conducting a suspended particulate phase water column bioassay that 
maintains necessary conditions for a long enough time to induce 
bioaccumulation would not be representative of actual in vivo (real 
world) conditions that would occur as a result of dumping (Reference 
18). Furthermore, as will be discussed below, the benthic 
bioaccumulation tests that are run in evaluating material proposed for 
dumping are carried out for a 28-day period, and expose test organisms 
to undiluted sediment. As a result, those test results provide a more 
conservative estimate of bioaccumulation potential, including any 
bioaccumulation that could possibly result from limited exposure to the 
suspended particulate phase.
2. Bioaccumulation Results From Solid Phase Testing Provide a Worst 
Case Representation of Bioaccumulation in the Suspended Particulate 
Phase
    In evaluating material proposed for ocean disposal, including 
dumped material, bioaccumulation tests on the solid phase of dumped 
material are performed on appropriately sensitive benthic marine 
organisms, using procedures approved by EPA (and the Corps in the case 
of dredged material). See 40 CFR 227.6(c)(3) and 227.27(d). These solid 
phase tests are run using the whole material to be dumped, including 
the fine particles that make up the suspended particulate phase. The 
tests are set up to allow the fine particles of the suspended phase to 
settle out so that they are available for direct consumption as a food 
source for sensitive deposit-feeding test organisms (References 1, 2). 
This mimics real-world exposure scenarios and, as explained below, also 
represents a worst case estimate of suspended phase bioaccumulation 
potential.
    Research conducted by the Agency and the Corps (References 5, 17, 
18) has shown that the greatest potential for bioaccumulation at the 
dumpsite is not in the water column, but in the benthic environment. 
This is because material deposited on the ocean bottom provides a 
habitat for benthic marine organisms for the extended periods of time 
necessary for bioaccumulation to occur.
    Appropriate solid phase bioaccumulation test organisms have been 
identified by EPA and the Corps (Reference 2). No appropriate organisms 
have been identified for bioaccumulation testing for the suspended 
particulate phase. These appropriate organisms live in benthic 
sediments, and ingest them as part of their nutritive requirements. 
They readily accumulate organic compounds, thereby providing a reliable 
indication of the bioaccumulation potential of the material. They have 
long life cycles and are hardy enough to survive the stress of exposure 
to contaminants so that they can be exposed for periods long enough to 
result in bioaccumulation. These organisms also have high tissue lipid 
content which effectively bioaccumulate organic compounds (References 
7, 8).
    This extended benthic exposure, using sediment-ingesting organisms 
with high lipid content, presents a conservative estimate of the 
potential for bioaccumulation from the suspended phase. This is because 
the duration of exposure in the solid phase is far greater than it 
would be in the water column of a dumpsite. In addition, benthic test 
organisms live in the sediment, are in direct contact with it, and also 
consume it, therefore substantially increasing their exposure to 
contaminants in the sediment, as compared to water column organisms.
    Thus, even though there is only limited potential for 
bioaccumulation in the suspended particulate phase, testing of the 
solid phase of dumped material provides the Agency with all the 
necessary information to determine whether there is significant 
undesirable bioaccumulation from either the suspended particulate phase 
or the solid phase; that is, whether a listed material is present in 
more than trace amounts, with regard to bioaccumulation.
3. No Reliable Tests Are Available For Bioaccumulation in the Suspended 
Particulate Phase
    Bioaccumulation tests in the suspended particulate phase would 
require the use of accepted species, as well as procedures approved by 
EPA (and the Corps for dredged material), to provide reliable 
information on the potential for bioaccumulation of the contaminants at 
the dump site. See 40 CFR 227.6(c)(2) and 227.27(c). There are no such 
tests that are currently recommended, approved, or required, either in 
the 1977 or 1991 editions of the ocean dumping dredged material testing 
manual (the ``Green Book'') (References 1, 2), or the bioassay 
procedures for the ocean disposal permit program (Reference 14). In 
contrast, the Green Book specifies procedures for bioaccumulation 
testing of the solid phase. Bioaccumulation testing of the suspended 
particulate phase is not run in any nationwide ocean disposal program, 
since such testing for regulatory purposes is not a standard practice. 
One reason for this is that the interpretation of these suspended 
particulate phase bioassay tests for human or ecological impacts would 
be difficult, since there are no meaningful indices against which to 
measure these test results (Reference 1).
    Approved benthic bioaccumulation tests generally require large 
volumes of tissue from the test organism to adequately measure effects. 
That volume of tissue is not available in the majority of standardized 
laboratory organisms for water column suspended particulate phase 
toxicity testing without using thousands of individual organisms. 
Exposure durations in laboratory tests would also require exposures far 
exceeding exposure times in the real-world environment of a dump site 
in order for bioaccumulation to occur. The results of using such large 
numbers of organisms in non-standardized bioaccumulation tests at 
unrealistic exposure durations and conditions would be very difficult 
to interpret, or to relate to ecological impact or human health effects 
(Reference 1).

C. Today's Rule

    Today's rule clarifies that bioaccumulation testing of the 
suspended particulate phase is not required. This is being done by 
adding a clarifying and interpretive statement to Sec. 227.6(c)(2), 
which was the particular section of the regulations interpreted by the 
July 1993 interim opinion in Clean Ocean Action as appearing to require 
such tests. Today's rule also adds a clarifying statement to 
Sec. 227.27(b) of the regulations. Although not directly at issue in 
the Court's interim ruling, this provision of the regulations also 
addresses testing requirements. In order to avoid any implication that 
this provision might also call for suspended particulate phase 
bioaccumulation testing, EPA believes a similar clarification is 
appropriate.

D. References

1. ``Ecological Evaluation of Proposed Discharge of Dredged Material 
into Ocean Waters'', U.S. Environmental Protection Agency and U.S. 
Army Corps of Engineers, Second Printing, April 1978.
2. ``Evaluation of Dredged Material Proposed for Ocean Disposal, 
Testing Manual'', U.S. Environmental Protection Agency and U.S. Army 
Corps of Engineers, April 1991.
3. ``Evaluation of Dredged Material Pollution Potential'', James M. 
Brannon, U.S. Army Waterways Experiment Station, Technical Report 
DS-78-6, August 1978.
4. ``Aquatic Dredged Material Disposal Impacts'', Thomas D. Wright, 
U.S. Army Waterways Experiment Station, Technical Report DS-78-1, 
August 1978.
5. ``Summary of U.S. Army Corps of Engineers and U.S. Environmental 
Protection Agency Field Verification Program'', report by Battelle 
Ocean Sciences, U.S. Army Waterways Experiment Station, Technical 
Report D-88-6, October 1988.
6. ``The transport and fate of particulate hydrocarbons in an urban 
fjord-like estuary'', P.P. Murphy, et al., in Estuarine, Coastal, 
and Shelf Science, 27(5):461-482, 1988.
7. ``Bioaccumulation of organic micropollutants from sediments and 
suspended particulates by aquatic animals'', J.M. Neff, in Fresenius 
Zeitschrift fur Analyische Chemie, 319(2):132-136, 1984.
8. ``Accumulation mechanisms and geographical distribution of PCBs 
in the North Sea'', K. Delbeke and C. Joiris, pp. 771-779, in 
``Environmental Protection of the North Sea'', edited by P.J. Newman 
and A.R. Agg, Heinemann Publishers, Oxford, 1988.
9. ``Organochlorine dynamics between zooplankton and their 
environment: A reassessment'', G.C. Harding, in Marine Ecology 
Progress Series, 33:167-191, 1986.
10. ``Guidance for Performing Tests on Dredged Material To Be 
Disposed in Ocean Waters'', U.S. Army Corps of Engineers, New York 
District, and U.S. Environmental Protection Agency, Region 2, 21 
December 1984.
11. ``2,3,7,8-TCDD, 2,3,7,8-TCDF, and PCBs in Marine Sediments and 
Biota: Laboratory and Field Studies'', R.J. Pruell, et al., report 
to U.S. Army Corps of Engineers, New York District, U.S. 
Environmental Protection Agency, Environmental Research Laboratory, 
Narragansett, RI, March 1990.
12. ``Accumulation of Polychlorinated Organic Contaminants From 
Sediment by Three Benthic Marine Species'', R.J. Pruell, et al., in 
Archives of Environmental Contamination and Toxicology, 24:290-297, 
1994.
13. ``Field Study of the Mechanics of the Placement of Dredged 
Material at Open Water Disposal Sites'', Volume 1 and Appendices, 
H.J. Bokuniewicz, et al., U.S. Army Corps of Engineers Dredged 
Material Research Program, Technical Report D-78-7, April 1978.
14. ``Bioassay Procedures for the Ocean Disposal Permit Program'', 
U.S. Environmental Protection Agency, Office of Research and 
Development, March 1978.
15. ``Plume Tracking of Dredged Material Containing Dioxin'', Draft 
Final Report, P. Dragos and C. Peven, Battelle Ocean Sciences 
Laboratory, Report to EPA Region 2 under Contract No. 68-C2-0134, 
1994.
16. ``Plume Tracking Model Verification Project'', Draft Final 
Report, P. Dragos and D. Lewis, Battelle Ocean Sciences Laboratory, 
Report to EPA Region 2 under Contract No. 68-C2-0134, 1993.
17. ``Synthesis of Research Results: Applicability and Field 
Verification of Predictive Methodologies for Aquatic Dredged 
Material Disposal'', J.H. Gentile et al., U.S. Army Waterways 
Experiment Station, Technical Report D-88-5, 1988.
18. ``Use of Suspended Phase Bioaccumulation Tests as Part of the 
Evaluation of the Suitability of Material for Ocean Disposal'', 
Oceans and Coastal Protection Division, EPA, Washington, D.C., May 
1994.
19. ``Guidance Manual: Bedded Sediment Bioaccumulation Tests'', H. 
Lee, et al., U.S. Environmental Protection Agency, Environmental 
Research Laboratory, Newport, OR, September 1989.

Compliance With Other Laws and Executive Orders

A. Administrative Procedure Act

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
generally requires notice of proposed rulemaking to be published in the 
Federal Register with an opportunity for public comment prior to 
promulgation of a final rule. The APA also provides, however, that the 
normal notice and comment requirements do not apply to ``interpretative 
rules'' or to cases in which

    ``[T]he Agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefore in the rule 
issued) that notice and public procedures thereon are impracticable, 
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b) (A) 
and (B).

    EPA believes that the ``interpretative rule'' and ``good cause'' 
exceptions apply to this interim final rule. To ensure that the Agency 
has the full benefit of public comment on any issues surrounding the 
bioaccumulation testing of the suspended particulate phase, however, 
EPA is publishing a proposal elsewhere in today's Federal Register that 
seeks public comment on this interim final rule and other alternatives 
that would accomplish the same regulatory result. EPA will take final 
action on the proposal by reissuing the interim final rule as a final 
rule or amending it as appropriate in light of comments received. 
Today's interim final rule will remain in effect until EPA takes final 
action on the proposal.

Interpretative Rule Exception

    Today's interim final rule interprets and clarifies the existing 
ocean dumping regulations, consistent with EPA's longstanding 
interpretation and practice, by eliminating any implication that 
bioaccumulation testing of the suspended particulate phase is required 
in order to obtain a permit to dump material in ocean waters. Today's 
rule is therefore an interpretative rule that is exempt from notice and 
comment requirements under section 553(b)(A).
    As EPA has explained in its submissions to the Court in the Clean 
Ocean Action case, the Agency does not interpret the existing ocean 
dumping regulations to require bioaccumulation testing of the suspended 
particulate phase. The existing regulations provide that with certain 
exceptions, the ocean dumping of materials containing certain listed 
constituents as other than trace contaminants will not be approved. 40 
CFR 227.6(a). These listed constituents will be considered to be 
present as trace contaminants:

    Only when they are present in materials otherwise acceptable for 
ocean dumping in such forms and amounts in liquid, suspended 
particulate, and solid phases that the dumping of the materials will 
not cause significant undesirable effects, including the possibility 
of danger associated with their bioaccumulation in marine organisms. 
40 CFR 227.6(b)

    40 CFR 227.6(c) provides that the potential for undesirable effects 
due to the presence of these constituents shall be determined ``by 
application of results of bioassays on liquid, suspended particulate, 
and solid phases of wastes according to procedures acceptable to EPA 
and for dredged material, acceptable to EPA and the Corps of 
Engineers.'' (Emphasis added). 40 CFR 227.6(c)(2) and 227.27(b) 
together state that the bioassay tests on the suspended particulate 
phase should be conducted with appropriate sensitive marine organisms 
``accepted by EPA as being reliable test organisms to determine the 
anticipated impact of the wastes on the ecosystem at the disposal 
site'' using procedures accepted by EPA and the Corps. (Emphasis 
added). The regulations thus vest substantial discretion in EPA and the 
Corps to determine the testing procedures and test organisms to be used 
in assessing the anticipated effects of dumping the material.
    Accordingly, as the Agency explains more fully earlier in this 
notice, it is EPA's longstanding interpretation of the existing ocean 
dumping regulations that the existing regulations do not require 
bioaccumulation testing of the suspended particulate phase. It is the 
Agency's longstanding practice not to require these tests, because: (1) 
No reliable tests are available for bioaccumulation in the suspended 
particulate phase; (2) exposure to the suspended particulate phase in 
the environment does not provide sufficient time for bioaccumulation; 
(3) the bioaccumulation testing of marine organisms in the solid phase 
provides a worst case indication of the bioaccumulation potential, so 
that separate suspended phase testing would be unnecessary in any 
event. Bioaccumulation testing of the suspended particulate phase is 
not run in any nationwide ocean disposal program, including that 
administered by EPA and the Corps under the MPRSA because 
bioaccumulation testing of the suspended particulate phase is not a 
standard practice.
    As the Agency also explains more fully earlier in this notice, no 
such tests were recommended, approved, or required in either the 1977 
or the 1991 editions of the ocean dumping dredged material testing 
manual (the Green Book), or the bioassay procedures for the ocean 
permit disposal program. (The Green Book does, however, specify 
bioaccumulation tests of whole sediment on benthic species. See Green 
Book, Section 12.) EPA issued the 1991 Green Book after noticing its 
availability for comment in the Federal Register and considering the 
comments it received, adding further weight to the Agency's 
interpretation of the regulations as not requiring bioaccumulation 
testing of the suspended particulate phase. 55 FR 8191 (March 7, 
1990)(notice of availability of draft Green Book); 56 FR 13826 (April 
4, 1991)(notice of availability of final Green Book).
    Accordingly, in light of the Agency's position regarding the proper 
interpretation of the existing regulations, and in the absence of any 
recommended, approved or required procedures for bioaccumulation of the 
suspended particulate phase, it is appropriate to issue today's rule as 
an interpretative rule that will be effective on the date of 
publication in the Federal Register, and will remain in effect until 
completion of the proposed notice and comment rulemaking that is 
referenced above.
Good Cause Exception
    EPA also believes that the ``good cause exception at 5 U.S.C. 
553(b)(B) provides an independent basis for issuing today's interim 
final rule without notice and comment. EPA estimates that issuing this 
rule through normal notice and comment procedures would take four to 
six months. Delaying the issuance of this rule for that period of time 
would be contrary to the public interest as evidenced by the urgent 
safety and economic concerns that have arisen in the Port of New York 
and New Jersey.
    The uncertainties surrounding the need for bioaccumulation testing 
of the suspended phase that have followed the Court's interim ruling in 
the Clean Ocean Action case, coupled with the lack of practicable and 
reliable suspended phase bioaccumulation tests, has complicated and 
ultimately delayed the issuance of ocean dumping permits that are 
essential for dredging projects in New York/New Jersey Harbor. Twenty-
five applications are pending before the Corps of Engineers from non-
federal entities to dispose of dredged material at sea from projects 
proposed for the Port of New York. There are also at least eight 
Federal projects that are being delayed by uncertainty over the testing 
requirements. Since EPA's interpretation of the regulations differs 
from the interpretation reflected in the Court's interim ruling in the 
Clean Ocean Action case, there is a real possibility of legal challenge 
whether or not the applicants are required to perform bioaccumulation 
testing of the suspended particulate phase. The Corps has informed EPA 
that it is withholding issuance of seven of these permits, and that 
analysis and review of the other 18 have been delayed as well, solely 
because of these legal uncertainties surrounding the testing 
requirements that are addressed by today's interim final rule.
    If navigation channels and berthing areas are not routinely dredged 
to adequate depths to accommodate the vessels they service, there is an 
increased potential for grounding of vessels and barges that transport 
bulk goods, petroleum products, chemicals, and other materials. There 
is also an increased need to lighter (partially off-load) vessels while 
they are moored in deeper waters. Both groundings and lightering 
operations can result in serious environmental consequences such as 
spills, as well as increased safety risks to vessel operators and their 
crews. Finally, concerns about safety and the need to lighter affect 
the volume of shipping and the amount of cargo that can enter a port. 
All of these concerns have resulted in a situation in New York/New 
Jersey Harbor that EPA believes must be addressed by the issuance of 
this rule as an interim final rule with immediate effectiveness.
    For example, on April 13, 1994, a cargo vessel collided with a 
petrobulk vessel that was engaged in lightering operations off 
Stapleton, Staten Island, New York. (USCG Case No. MC94007346). 
Although EPA is unable to confirm that the petrobulk vessel was 
lightering because navigation channels or berthing areas have not been 
dredged, this accident illustrates the hazard that lightering 
operations can pose. Dredging of the Port would lessen the need for 
lightering and consequently lower the risk of collision and the 
potential for injury and environmental harm.
    Delays in dredging also are beginning to cause serious economic 
impacts to the Port of New York/New Jersey. As an example, on large 
cargo vessels, it is estimated that for every one foot of depth lost 
below a vessel's controlling draft, the vessel must carry 100 fewer 
cargo containers. These containers are either diverted or the vessels 
carrying them are lightered prior to entering the Port. Each container 
holds between fifteen and twenty tons of cargo. Approximately two to 
three thousand container vessels enter the Port each year. The Port 
Authority of New York and New Jersey estimates that two to three 
percent of the total tonnage of cargo previously entering the Port is 
diverted to other ports due to decreased depths in the navigation 
channels and berthing areas. The New York Shipping Association believes 
this estimate is conservative.
    Similarly, a petroleum refining facility in Perth Amboy, New Jersey 
submitted a dredging permit application to the Corps of Engineers on 
February 2, 1991. Tankers servicing this facility normally draw thirty-
six feet of water; however, the current depth at the facility is 
thirty-two feet. The result has been loss of revenue at a rate of $2 
million per year, as estimated by the company, from space left empty on 
tankers to decrease draft and allow for safe berthing at the facility. 
It is not possible to offset this loss by increasing the number of 
ships servicing this facility because of the lack of berthing area. 
According to the New York Shipping Association, there is a facility in 
Yonkers, New York that has a charter that requires it to provide thirty 
feet of water. The water depth at this facility currently is twenty-
four feet as a result of permitting delays. Captains are docking, but 
only ``under protest.'' This means that the facility is liable for 
damage that may occur to a ship as a result of inadequate water depths. 
It is not feasible for the facility to compensate for this loss by 
trucking.
    Finally, the New York Shipping Association has reported that the 
International Longshoremen's Association has lost 300,000 man hours of 
wages during the year ending September 30, 1993 because of cargo 
diversions. This equates to somewhere in the neighborhood of $6 million 
in lost wages. The Port Authority of New York and New Jersey has 
reported that 100,000 hours were lost during a three month period in 
the fall of 1993 because of cargo diversions. This equates to somewhere 
in the neighborhood of $2 million for those three months.
    In the case of four permit applicants, there is special need for 
dredging permit decisions to be issued expeditiously. The proposed 
permits for these projects included restrictions limiting dredging to 
certain times of the calendar year in order to protect juvenile striped 
bass, winter flounder, anadromous fish including various herrings and 
alewives, and the endangered shortnose sturgeon. If dredging is not 
completed for these projects this fall, it would be further delayed 
between three and a half and eleven months as a result of these 
restrictions. For these applicants to complete the dredging this fall, 
they must receive a permit within the next month.
    These serious safety and economic problems can not be abated unless 
New York/New Jersey Harbor is dredged to safe depths. According to the 
Corps of Engineers, issuance of this rule as an interim final rule will 
enable it to issue seven dredging permits immediately, and to proceed 
with the review of the remaining 18 permits expeditiously, without 
resulting in any lesser protection of the ocean environment at the Mud 
Dump Site. The practical effect of this interim final rule clarifying 
the testing requirements will be limited to New York/New Jersey Harbor 
because this is the only area where the issue has arisen whether 
suspended particulate phase bioaccumulation testing is required. It is 
not conducted elsewhere in the ocean dumping program. Accordingly, EPA 
believes that delaying the issuance of this final rule to obtain public 
comment would be contrary to the public interest.
Immediate Effectiveness
    The APA also generally requires that substantive rules be published 
30 days prior to their effective date except:
    ``(1) A substantive rule which grants or recognizes an exemption or 
relieves a restriction;
* * * * *
or (3) as otherwise provided by the agency for good cause found and 
published with the rule''. 5 U.S.C. 553(d).
    EPA is issuing today's interim final rule as immediately effective 
under the provisions of 5 U.S.C. 553(d). As detailed elsewhere in this 
notice, today's rule clarifies the regulations to eliminate potential 
unnecessary testing of material proposed for ocean disposal. It thus 
serves to ``relieve a restriction'' within the meaning of APA section 
553(d)(1). In addition, for the reasons previously set forth in this 
preamble as to why public comment is unnecessary, EPA also believes 
there is ``good cause'' for issuing today's interim final rule in 
immediately effective form.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to lead to a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially effecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations, of 
recipients thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866, and is 
therefore not subject to OMB review.

C. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and record-keeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by the Office of Management 
and Budget. Since today's rule would not establish or modify any 
information or record-keeping requirements, it is not subject to the 
requirements of the Paperwork Reduction Act.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
EPA must prepare a Regulatory Flexibility Analysis for regulations 
having a significant impact on a substantial number of small entities. 
The RFA recognizes three kinds of small entities, and defines them as 
follows:
    (1) Small governmental jurisdictions--any government of a district 
with a population of less than 50,000.
    (2) Small business--any business which is independently owned and 
operated and not dominant in its field, as defined by Small Business 
Administration regulations under the Small Business Act.
    (3) Small organization--any not-for-profit enterprise that is 
independently owned and operated and not dominant in its field.
    As discussed above in the discussion of Executive Order 12866, 
today's interim final rule does not impose economic burdens. 
Accordingly, EPA has determined that today's rule would not have a 
significant impact on a substantial number of small entities, and that 
a Regulatory Flexibility Analysis therefore is unnecessary.

List of Subjects in 40 CFR Part 227

    Environmental protection, Water pollution control.

    Dated: May 13, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.

    For the reasons set out in this preamble, part 227 of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 227--[AMENDED]

    1. The authority citation for part 227 continues to read as 
follows:

    Authority: 33 U.S.C. 1412 and 1418.

    2. Section 227.6 is amended by adding at the end of paragraph 
(c)(2) a footnote 1 to read as follows:


Sec. 227.6  Constituents prohibited as other than trace contaminants.

* * * * *
    (c) * * *
    (2) * * *\1\

    \1\This provision shall not be interpreted as requiring 
bioaccumulation testing of the suspended particulate phase of dumped 
materials.
* * * * *
    3. Section 227.27 is amended by adding at the end of paragraph (b) 
a footnote 2 to read as follows:


Sec. 227.27  Limiting permissible concentration (LPC).

* * * * *
    (b) * * *

    \2\This provision shall not be interpreted as requiring 
bioaccumulation testing of the suspended particulate phase of dumped 
materials.
* * * * *
[FR Doc. 94-12216 Filed 5-19-94; 8:45 am]
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