[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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