[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]
_______________________________________________________________________
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.
-----------------------------------------------------------------------
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]
BILLING CODE 6560-50-P
