[Federal Register Volume 60, Number 2 (Wednesday, January 4, 1995)]
[Proposed Rules]
[Pages 419-422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-00066]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 230
[FRL-5132-4]
RIN 2040-AC14
Comparison of Dredged Material to Reference Sediment
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
revise the Clean Water Act Section 404(b)(1) Guidelines (Guidelines) to
provide for comparison of dredged material proposed for discharge with
``reference sediment,'' for the purposes of conducting chemical,
biological, and physical evaluations and testing. Under this proposed
revision, the testing provisions of the Guidelines would be improved by
directing that dredged material proposed for discharge be compared to
reference sediment. ``Reference sediment'' would be defined as sediment
that reflects the conditions at the disposal site had no dredged
material disposal ever occurred there. Adoption of the reference
sediment approach would allow the regulatory program to better assess
the potential cumulative impacts of dredged material discharges, and
would make testing of dredged material proposed for discharge in waters
of the U.S. more consistent with current methods used for testing
dredged material proposed for ocean disposal.
DATES: Written comments must be submitted on or before March 6, 1995.
ADDRESSES: Written comments should be submitted to: Reference Sediment
Docket (4502F), Wetlands and Aquatic Resources Regulatory Branch, U.S.
EPA, 401 M Street SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Details are available from Mr. John
Goodin at (202) 260-9910.
SUPPLEMENTARY INFORMATION:
Statutory and Regulatory Background
The Federal Water Pollution Control Act of 1972 (amended in 1977 as
the Clean Water Act) established, in Section 404, a permit program for
the regulation of proposed discharges of dredged or fill material into
waters of the United States, including wetlands. Section 404(a)
authorizes the Secretary of the Army, acting through the Chief of
Engineers, to issue permits specifying disposal sites in waters of the
U.S. in accordance with regulatory requirements of the Section
404(b)(1) Guidelines (Guidelines). The Guidelines, which were published
by EPA as final regulations on December 24, 1980 (45 FR 85336), are the
substantive environmental criteria used in evaluating discharges of
dredged or fill material under Section 404 of the Clean Water Act.
The Guidelines provide general restrictions at Sec. 230.10 that
must be met before a permit can be issued authorizing a discharge of
dredged or fill material into waters of the U.S. In order to reach
conclusions regarding these restrictions, a variety of factual
determinations are made concerning the potential environmental effects
of a proposed discharge. Sections 230.60 and 230.61 of the Guidelines
outline the chemical, biological, and physical evaluation and testing
procedures that are to be used to make several of these determinations.
These testing procedures are designed to determine the degree to which
the material proposed for discharge may introduce, relocate, or
increase the availability of contaminants and how this may impact the
aquatic ecosystem and organisms. Section 230.61(c) of the Guidelines
outlines procedures for comparing ``excavation'' and ``disposal''
sites. This comparison is made to ascertain the potential for adverse
environmental impacts at the disposal site due to the proposed
discharge of dredged material. Markedly different concentrations of
contaminants or toxicological responses of test organisms between
sediment from the excavation and disposal sites may indicate the
potential for adverse environmental impacts.
A fundamental precept surrounding all evaluations under the
Guidelines is that a ``discharge will not have an unacceptable adverse
impact either individually or in combination with known and/or probable
impacts of other activities affecting the ecosystems of concern.''
(Sec. 230.1(c)) The Guidelines require the consideration of both
cumulative and secondary effects on the aquatic ecosystem, as part of
the factual determinations made to assess compliance (see Sec. 230.11).
If repetitive disposal occurs at a site, testing that employs the
disposal site as a point of comparison may not facilitate an adequate
evaluation of potential cumulative adverse effects, and thus may not
provide the comprehensive data desired for factual determinations and
ultimately, Guidelines compliance decisions.
The key standard established in the Guidelines is that dredged
material disposal may not have an ``unacceptable adverse impact'' on
the disposal site. As discussed below, use of disposal site sediments
as a point of comparison for subsequent evaluations of dredged material
proposed for discharge there could contribute to the incremental
contamination of the site over time, by continually degrading that
point of comparison. This could occur without any of the individual
discharges causing an ``unacceptable adverse impact.''
Current Practice
Current practice for most dredged material disposal is to use, to
the maximum extent practicable, the same dredged material disposal site
for successive discharge activities. In this manner, that portion of
the total aquatic ecosystem impacted by dredged material discharges is
limited, as is the repetition of associated regulatory procedures
(i.e., specification of a disposal site). However, use of sediment from
the disposal site as the point of comparison for subsequent evaluations
of dredged material proposed for discharge at the same site could
result in long term changes in the nature of disposal site, if
contaminants incrementally accumulate there. For example, increasingly
contaminated sediments could be discharged at a site even though a
given discharge might have exceeded the ``unacceptable adverse impact''
threshold had this discharge been permitted earlier in the life of the
disposal site when contamination levels were not as high. In this
manner, cumulative adverse effects of individual dredged material
discharges at a disposal site may not be adequately assessed.
In addition, using sediment from the disposal site as a point of
comparison as currently required under the Guidelines represents an
inconsistency between how discharges of dredged material are regulated
under the Clean Water Act, which has jurisdiction in waters of the
U.S., and the Marine Protection, Research, and Sanctuaries Act, which
has jurisdiction in the territorial seas and ocean waters. The latter
uses a reference sediment comparison in conducting dredged material
testing, whereas the former currently does not. Although the two
programs regulate dredged material disposal under different statutes,
there is considerable overlap in terms of practical implementation. EPA
and the Corps of Engineers support consistent testing that facilitates
environmental comparisons [[Page 420]] when a number of dredged
material disposal alternatives are being considered. Furthermore,
consistent testing helps ensure that decisions regarding disposal are
not driven by an artifact of different regulations which were
envisioned to acquire similar effects information.
Definition of Reference Sediment
Today's proposed rule addresses the problem of using the disposal
site as a point of comparison for proposed discharges of dredged
material by providing for those comparisons to be made to reference
sediment instead. The term ``reference sediment'' is defined as:
sediment that reflects the conditions at the disposal site had no
dredged material disposal ever occurred there. Reference sediment
serves as a point of comparison to identify potential environmental
effects of a discharge of dredged material. Reference sediment shall
be collected taking into account the following considerations: (1)
to obtain physical characteristics, including grain size, as similar
as practicable as the dredged material proposed for discharge, (2)
to avoid areas in the immediate vicinity of, including depositional
zones of, spills, outfalls, or other significant sources of
contaminants, and (3) to be as close as practicable to, and subject
to the same hydrologic influences as, the disposal site, but removed
from areas which are subject to sediment migration of previous
dredged material discharges. If existing information that provides
an easy-to-interpret indication of the presence of bioavailable
contaminants in the reference sediment and in the sediment from the
disposal site waterbody is not available, sediment testing (e.g.,
toxicity testing) is necessary to ensure that the reference sediment
accurately reflects the conditions of the sediment from the disposal
site waterbody.
Specifically, Sec. 230.3 of the Guidelines would be amended by
adding the above definition of ``reference sediment'' as paragraph (u),
and Sec. 230.61(c) of the Guidelines would be amended by changing two
applications of the term ``disposal site'' to reflect incorporation of
the reference sediment approach.
Selection of Reference Sediment
The three considerations listed in the definition are designed to
ensure that the reference sediment selected has appropriate physical
characteristics and accurately reflects the sediment from the disposal
site waterbody, absent the influence of previous dredged material
discharges. Evaluation of each of these factors is necessary in the
selection of an appropriate reference sediment. In light of the many
factors that may affect it, the selection of appropriate reference
sediment must be identified in the proposed sampling plan for testing
associated with a proposed discharge and approved by the relevant Corps
of Engineers District (or State, if they are the permitting authority)
in coordination with the EPA Region.
First, the dredged material proposed for discharge and the
reference sediment should possess similar physical characteristics,
including grain size, which is important from both chemical and
biological standpoints. For example, substrate preference of benthic
organisms, larval settlement, and contaminant partitioning are specific
to geophysical characteristics of the sediment. The presence of
contaminants, and their bioavailability to the organisms that come into
contact with them, are a direct function of characteristics (e.g.,
organic carbon in the surrounding sediment) which are often influenced
by the grain size of the surrounding sediment.
Second, in selecting reference sediment, efforts should be made to
avoid areas in the immediate vicinity of, including depositional zones
of, spills, outfalls, or other significant sources of contaminants, in
addition to areas that are subject to sediment migration of previous
dredged material discharges, to prevent the selection of reference
sediment that reflects either an area of increased contamination in a
waterbody or reflects the impacts of previous dredged material
discharges. In this regard, reference sediments should be substantially
free of contaminants. However, it is recognized that a particular
waterbody may be influenced by, and its sediments may therefore
contain, a variety of chemical constituents or other characteristics,
that are the result of natural or non-dredged material disposal
influences. Therefore, ``substantially free of contaminants'' does not
equate to ``pristine'' or ``absence of contaminants.''
The reference sediment comparison is designed to assess the
potential impacts of a proposed discharge relative to the ambient
conditions of the waterbody of the proposed disposal site (i.e.,
``dredged or fill material should not be discharged into the aquatic
ecosystem unless it can be demonstrated that such a discharge will not
have an unacceptable adverse impact * * * [on] the ecosystems of
concern.'' 40 CFR 230.1(c)). The reference sediment comparison yields
data on the proposed discharge's impact at the disposal site, in light
of any contaminants already present as the result of non-point runoff,
point source discharges, air deposition, and various other sources
outside the influence of the dredged material discharger. Thus, a
``pristine'' standard may not reflect the ambient conditions of the
disposal site, the impacts upon which are to be evaluated under the
Guidelines.
Third, selection of reference sediment should be in as close
proximity as practicable to the disposal site sediment, while best
reflecting the other considerations listed. This helps to maintain
control for variables such as hydrologic influences that might
otherwise differ between the disposal site and the location from which
reference sediment is obtained.
An evaluation of the presence of contaminants is part of the
overall evaluation to affirm that the reference sediment is similar to
sediment in the disposal site waterbody (absent the impacts of any
previous dredged material discharge). In circumstances where existing
information that provides an easy-to-interpret indication of the
presence of bioavailable contaminants in the reference sediment and in
the sediment from the disposal site waterbody is not available,
sediment testing (e.g., toxicity testing) is necessary to ensure that
the reference sediment accurately reflects the conditions of the
sediment from the disposal site waterbody. The evaluation of an
appropriate reference sediment provides the basis for a valid
demonstration that the reference sediment accurately reflects the
characteristics of the sediment at the disposal site waterbody,
including specifically an evaluation of the potential presence of
contaminants, while providing the necessary flexibility for determining
when additional information must be collected to support this
demonstration.
A wide variety of site specific circumstances exist that affect
what method or methods are appropriate or necessary for demonstrating
the selection of suitable reference sediment. For example, in a
particular circumstance, the information value of benthic bioassay
results may be more useful in affirming an accurate reference sediment
in cases where the suite of potential contaminants in the disposal site
waterbody is very large, whereas information on several chemical
contaminants of concern may be sufficient in other cases. Guidance on
recommended methods will be described in the testing manual for
proposed discharges of dredged material into waters of the U.S., and
will be revised as necessary to ensure that these methods are current
and sound. These procedures are intended to ensure that appropriate
flexibility is provided to the Corps, or State that has assumed the
Section 404 permit program, to require testing on a case-by-case basis
where it [[Page 421]] may be necessary to affirm the selection of an
accurate reference sediment.
Benefits of Reference Sediment
Although the mention of ``reference sediment,'' per se, currently
is absent from the Guidelines, this concept is inherent in both the
general purpose and specific determinations required by these
regulations, and provides the most effective approach to address
current shortcomings in the existing testing protocol. Comparison of
dredged material proposed for discharge to reference sediment provides
a more effective basis for addressing cumulative effects at a site
subject to previous disposal because the comparison would be made to
sediment which has only been influenced by ambient conditions, i.e.,
the point of comparison would not be subject to alteration by previous
dredged material discharges. As subsequent evaluations of dredged
material proposed for discharge at a particular site would be made in
comparison to reference sediment, potential difficulties with the use
of the disposal site as a point of comparison would be addressed.
Furthermore, as the sources of contamination in a waterbody such as
agricultural and urban runoff are decreased, the reference sediment,
and thus the point of comparison for proposed discharges of dredged
material, should reflect this improvement, rather than continuing to
reflect past dredged material discharges.
Adoption of the reference sediment approach also establishes
greater consistency with testing conducted for the ocean disposal of
dredged material. A technically appropriate reference sediment
definition that reflects repetitive use site conditions is an important
component of the Marine Protection, Research, and Sanctuaries Act's
ocean dumping program. The reference sediment approach is integral to
this program's testing guidance, ``Evaluation of Dredged Material for
Ocean Disposal: Testing Manual,'' commonly known as the Ocean Dumping
Testing Manual or Green Book, which was revised and published by EPA
and the Corps of Engineers in February 1991. In their review of the
Green Book (Science Advisory Board. 1992. Technical review of
``Evaluation of Dredged Materials Proposed for Ocean Disposal--Testing
Manual.'' Washington, D.C. EPA-SAB-EPEC-92-014. 20pp.), EPA's Science
Advisory Board indicated their support for the reference sediment
concept, but noted that reference areas must be better defined and
quantified. In their review of a companion draft testing manual for
waters of the U.S. (Science Advisory Board. 1994. ``An SAB report:
Evaluation of a Testing Manual for Dredged Material Proposed for
Discharge in Inland and Coastal Waters.'' Washington, D.C. EPA-SAB-
EPEC-94-007. 16pp.), the Science Advisory Board concluded that
``criteria for the selection of reference [sediment] are much too vague
and subjective.'' EPA concurs that these criteria need to be clearly
articulated and will revise the draft testing manual accordingly upon
final promulgation of this proposed rule. As a practical matter, the
reference sediment approach has been used by the ocean dumping program
to evaluate hundreds of proposed discharges. This experience has
demonstrated the reference sediment approach to be a protective and
scientifically defensible means of predicting impacts.
The reference sediment approach has also been applied with similar
results in waters of the U.S. where Green Book methods were applied. As
noted above, EPA and the Corps are currently developing a Section 404
Testing Manual to detail the technical evaluation and testing
requirements outlined in the testing provisions of the Guidelines
(Sec. 230.60 and Sec. 230.61). The draft, entitled ``Evaluation of
Dredged Material Proposed for Discharge in Waters of the U.S.--Testing
Manual (Draft),'' adopts the same tiered testing approach as the Green
Book. While details of the Section 404 Testing Manual will necessarily
be somewhat different from the Green Book, the Green Book's framework
and concepts are an appropriate paradigm for use in waters of the U.S.
The Section 404 Testing Manual was made available for public review and
comment on July 21, 1994 (59 FR 37234).
Executive Order 12866 and the Regulatory Flexibility Act
Under Executive Order 12866, [58 Federal Register 51,735 (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 result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, 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; or
(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. Current testing regulations for
evaluating potential chemical, biological, and physical impacts of a
proposed discharge require comparison of the material proposed for
discharge with sediment collected from the disposal site. Under the
proposed revisions, the location of the site from which sediment is
collected for comparison may differ from current practice. However,
this substitution is not expected to impose an additional regulatory
burden, as sampling and analysis costs should remain equivalent.
A reference approach could increase the number of cases in which
test results indicate an increased likelihood of a toxic or
bioaccumulative effect from a proposed dredged material discharge. In a
subset of these cases, that increased likelihood could lead to a
factual determination regarding potential contaminant effects that is
of greater environmental concern. In a subset of these cases, that
determination could lead to the use of some management measure (e.g.,
placement of a ``cap'' of relatively clean dredged material over the
proposed discharge or use of a confined disposal facility) to comply
with the Guidelines. In such cases, a regulated party could incur
additional expenditures. However, EPA does not anticipate that this
circumstance would occur in more than a small number of cases.
A reference approach could increase the efficiency of the dredged
material disposal program and lower the costs to the regulated
community. In cases where ocean disposal and waters of the U.S.
disposal alternatives are considered, evaluation of test results would
be based on comparable testing methodologies, thus facilitating the
evaluation of disposal alternatives. Furthermore, one reference
sediment may accurately characterize a number of potential disposal
sites. In such cases, a regulated party could reduce testing
expenditures by sampling one reference location and not each disposal
site.
The net impact of the above potential effects is not expected to be
significant. EPA invites the public to comment on the potential impacts
of this proposed rule. [[Page 422]]
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
Environmental Protection Agency certifies that this regulation will not
have a significant impact on a substantial number of small entities
(see above discussion).
Paperwork Reduction Act
Today's rule places no additional information collection or
recordkeeping burden on respondents. Therefore, an information
collection request has not been prepared and submitted to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.). Information collection activities for Clean Water Act section
404 permits are conducted under the U.S. Army Corps of Engineers
information collection request number: 0710-003.
List of Subjects in 40 CFR Part 230
Environmental protection, Dredged material, Water pollution
control, Wetlands.
Dated: December 23, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.
Accordingly, 40 CFR part 230 is proposed to be amended as follows:
PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL
1. The authority citation for part 230 continues to read as
follows:
Authority: Secs. 404(b) and 501(a) of the Clean Water Act of
1977 (33 U.S.C. 1344(b) and 1361(a)).
2. Section 230.3 is amended by adding paragraph (u) to read as
follows:
Sec. 230.3 Definitions.
* * * * *
(u) The term reference sediment means a sediment that reflects the
conditions at the disposal site had no dredged material disposal ever
occurred there. Reference sediment serves as a point of comparison to
identify potential environmental effects of a discharge of dredged
material. Reference sediment shall be collected taking into account the
following considerations:
(1) To obtain physical characteristics, including grain size, as
similar as practicable as the dredged material proposed for discharge,
(2) To avoid areas in the immediate vicinity of, including
depositional zones of, spills, outfalls, or other significant sources
of contaminants, and
(3) To be as close as practicable to, and subject to the same
hydrologic influences as, the disposal site, but removed from areas
which are subject to sediment migration of previous dredged material
discharges.
If existing information that provides an easy-to-interpret indication
of the presence of bioavailable contaminants in the reference sediment
and in the sediment from the disposal site waterbody is not available,
sediment testing (e.g., toxicity testing) is necessary to ensure that
the reference sediment accurately reflects the conditions of the
sediment from the disposal site waterbody.
3. Section 230.61 is amended by revising paragraph (c)(1) and the
first sentence of paragraph (c)(2) to read as follows:
Sec. 230.61 Chemical, biological, and physical evaluation and testing.
* * * * *
(c) * * *
(1) When an inventory of the total concentration of contaminants
would be of value in comparing sediment at the dredging site with
sediment at the disposal site, the permitting authority may require
sediment chemical analysis. Markedly different concentrations of
contaminants between the material from the excavation site and the
reference sediment (Sec. 230.3(u)) may aid in making an environmental
assessment of the proposed disposal operation. Such differences should
be interpreted in terms of the potential for harm as supported by any
pertinent scientific literature.
(2) When an analysis of biological community structure will be of
value to assess the potential for adverse environmental impact at the
proposed disposal site, a comparison of the biological characteristics
between the material from the excavation site and the reference
sediment (Sec. 230.3(u)) may be required by the permitting authority. *
* *
* * * * *
[FR Doc. 95-00066 Filed 1-3-95; 8:45 am]
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