Comparison of Dredged Material to Reference Sediment

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

nts 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

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

nated 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 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:

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

s 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

ic

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))

ison 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

es 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 may be necessary to affirm the selection of an

accurate reference sediment.

Benefits of Reference Sediment

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 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

flect 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

rticulated 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;

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

sts 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.

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

ove potential effects is not expected to be

significant. EPA invites the public to comment on the potential impacts

of this proposed rule.

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.

* * * * *

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.

* * * * *

ot 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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