Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Proposed Rules 419

Dated: November 10, 1994.

William Rice,

Acting Regional Administrator.

[FR Doc. 95–147 Filed 1–3–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 230

[FRL–5132–4]

RIN 2040–AC14

Comparison of Dredged Material to

Reference Sediment

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

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 § 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.’’ (§ 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 § 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
420 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Proposed Rules

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, § 230.3 of the Guidelines

would be amended by adding the above

definition of ‘‘reference sediment’’ as

paragraph (u), and § 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 nondredged 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
Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Proposed Rules 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 (§ 230.60 and § 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.
422 Federal Register / Vol. 60, No. 2 / Wednesday, January 4, 1995 / Proposed Rules

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:

§ 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:

§ 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 (§ 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 (§ 230.3(u)) may

be required by the permitting authority.

* * *

* * * * *

[FR Doc. 95–00066 Filed 1–3–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 300

[FRL–5127–9]

Intent To Delete Crystal City Airport

Superfund Site, Crystal City, Zavala

County, Texas From the National

Priorities List

AGENCY: United States Environmental

Protection Agency.

ACTION: Intent to delete the Crystal City

Airport Superfund site from the

National Priorities List: request for

comments.

SUMMARY: The Environmental Protection

Agency (EPA) Region 6 announces its

intent to delete the Crystal City Airport

Superfund site from the National

Priorities List (NPL) and requests public

comment on this action. The NPL

constitutes Appendix B of 40 CFR part

300 which is the National Oil and

Hazardous Substances Pollution

Contingency Plan (NCP), which EPA

promulgated pursuant to Section 105 of

the Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA), as amended. EPA and

the State of Texas (Texas Natural

Resource Conservation Commission)

have determined that all appropriate

actions under CERCLA have been

implemented and that no further

cleanup is appropriate. Moreover, EPA

and the State have determined that

response activities conducted at the site

to date have been protective of public

health, welfare, and the environment.

DATES: Comments concerning this site

may be submitted on or before January

30, 1995.

ADDRESSES: Comments may be mailed

to: Ms. Olivia Rodriguez, Community

Relations Coordinator, U.S. EPA, Region

6 (6H–MC), 1445 Ross Avenue, Dallas,

Texas 75202–2733, (214) 665–6584 or

1–800–533–3508.

Comprehensive information on this

site is available through the EPA Region

6 public docket, which is located at

EPA’s Region 6 library office and is

available for viewing from 8:00 a.m. to

5:00 p.m., Monday through Friday,

excluding holidays. The office address

is: U.S. EPA, Region 6, Library, 12th

Floor, 1445 Ross Avenue, Dallas, Texas

75202, (214) 665–6424 or 665–6427.

Background information from the

Regional public docket is available for

viewing at the Crystal City Airport

Superfund site information repositories

located at:

Crystal City Public Library, 101 E.

Dimmit, Crystal City, TX 78839.

Environmental Protection Agency,

Library, 12th Floor, 1445 Ross

Avenue, Dallas, Texas 75202.

Texas Natural Resource Conservation

Commission, 12118 North 1H–35,

Building D, Room 190, Austin, Texas

78753, (512) 239–2920.

FOR FURTHER INFORMATION CONTACT: Mr.

Ernest R. Franke, Remedial Project

Manager, U.S. Environmental Protection

Agency, Region 6, 1445 Ross Avenue,

Dallas, Texas 75202–2733, (214) 665–

8521 or 1–800–533–3508.