APPENDIX B Regulatory Framework for the Management and Remediation of Contaminated Marine Sediments1

Kenneth S. Kamlet and Peter Shelley

Numerous federal laws and regulations apply to aspects of the handling and placement of sediments and the means by which they become contaminated. However, no single legal authority is geared specifically to the management of contaminated sediments. Instead, a diverse mix of differing legal requirements comes into play depending on the nature and location of, and the reason for, the dredging and ultimate placement.

ORGANIZATION AND SCOPE

A few words should be said about the coverage and organization of this appendix. It focuses on contaminated sediments. However, because contaminated sediments are one category of sediments and many regulatory authorities address sediments in general, this appendix includes a discussion of relevant provisions that primarily concern all types of sediments. For example, provisions of the biennial Water Resource Development Acts (WRDAs) that relate to beneficial uses of dredged material are discussed because beneficial uses are among the management options available for contaminated sediments—despite their more common application in connection with clean sediments. Similarly, this appendix describes the navigation dredging cost-sharing provisions of these acts, even though the provisions do not typically differentiate between contaminated and uncontaminated dredged materials.

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This appendix has been edited for grammar and style, accuracy and organization are the sole responsibilities of the authors



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--> APPENDIX B Regulatory Framework for the Management and Remediation of Contaminated Marine Sediments1 Kenneth S. Kamlet and Peter Shelley Numerous federal laws and regulations apply to aspects of the handling and placement of sediments and the means by which they become contaminated. However, no single legal authority is geared specifically to the management of contaminated sediments. Instead, a diverse mix of differing legal requirements comes into play depending on the nature and location of, and the reason for, the dredging and ultimate placement. ORGANIZATION AND SCOPE A few words should be said about the coverage and organization of this appendix. It focuses on contaminated sediments. However, because contaminated sediments are one category of sediments and many regulatory authorities address sediments in general, this appendix includes a discussion of relevant provisions that primarily concern all types of sediments. For example, provisions of the biennial Water Resource Development Acts (WRDAs) that relate to beneficial uses of dredged material are discussed because beneficial uses are among the management options available for contaminated sediments—despite their more common application in connection with clean sediments. Similarly, this appendix describes the navigation dredging cost-sharing provisions of these acts, even though the provisions do not typically differentiate between contaminated and uncontaminated dredged materials. 1   This appendix has been edited for grammar and style, accuracy and organization are the sole responsibilities of the authors

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--> Because the committee's report encompasses the broad-based management of contaminated sediment problems, this appendix also includes some evaluation of potentially viable options—using existing, or slightly modified, regulatory tools-for—improving control of the sources of sediment contamination For example, the discussion of applicable Clean Water Act (CWA) authorities is not limited solely to Section 404, which regulates the discharge of dredged and fill material; it also briefly catalogues the CWA provisions that control point source discharges (Section 402), toxics and spills (Sections 307 and 311), and State Water Quality Certification authority (Section 401). Also mentioned are other provisions that are used and, in some cases, could be used more effectively to reduce upstream activities that ultimately impact downstream sediment quality On the one hand, the approach taken here could be viewed as an extension of the ''systems" or "systems engineering" approach discussed in the report. If the objective is to solve the problem of contaminated sediments, then it is necessary to look at all parts of the regulatory "system" to identify the most workable plan for solving the problem. On the other hand, the appendix is not intended to be an all-inclusive compilation of environmental laws that may affect a proposal to excavate or dispose of contaminated sediments. Thus, there is only a passing reference to the National Environmental Policy Act of 1969 (NEPA), which applies to all major federal actions that may have a significant environmental impact. And there is no reference at all to the Endangered Species Act (ESA), which can play an important role when sediment handling might disturb imperiled species or their habitat. Although it can be argued that the line drawn is artificial, the authors consider general environmental statutes of this type to be one step removed from sediments and sediment management and therefore not relevant in a survey of authorities governing contaminated sediments. Admittedly, this appendix is not entirely consistent in this respect. It does include a discussion of the "consistency" provisions of the Coastal Zone Management Act (CZMA),2 even though the CZMA resembles NEPA and the ESA in that it is a general environmental statute, rather than one geared specifically to sediments. In this case, the authors "erred" on the side of inclusiveness because the CZMA's consistency provisions perform a role very similar to the role of water quality certifications under Section 401 of the CWA. These authorities form the backbone of the legal tools available to coastal states to influence federal regulatory actions in the marine environment. Having decided to address the CWA authorities, the authors decided to include CZMA provisions for completeness. 2   16 United States Code, Section 1451 et seq for the statute and 16 United States Code. Section 1456 for the specific provision References to the Code will be abbreviated using the format 16 USC § 1456

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--> Objectives Appendix B was organized to accomplish at least five objectives. It supplements and supports the report's references to regulatory and policy issues It provides the interested reader with a general overview of relevant laws and regulations. It illustrates the different considerations that drive the divergent statutory programs. It provides a sense of the complexity of the regulatory framework and where that framework contains gaps, overlaps, and uncertainties. And it provides some selective indications of how the existing regulatory framework might be changed (without affirmatively recommending specific changes) to enhance its effectiveness or reduce its complexity. Factors that Drive the Statutory Programs The regulatory framework discussed in this appendix evolved over many decades. The complexity of this framework is attributable in part to the differing objectives and legal thrusts of the patchwork of statutes and regulations that make it up. Factors that influence which regulatory requirement applies in a given case include the following: the navigability of the waterway from which the sediments are excavated—that is, the area in or adjacent to a navigation channel (see, for example, the Rivers and Harbors Act of 1899 [RHA]) the proposed destination of the sediments—that is, land, ocean, or inland waters (Resource Conservation and Recovery Act [RCRA], CWA, or no law3 versus Marine Protection, Research and Sanctuaries Act [MPRSA]) the driving force for sediment management—that is, navigation enhancement (RHA, CWA, and/or MPRSA), environmental remediation/restoration (CWA, Comprehensive Environmental Response, Cleanup, and Liability Act of 1980 [CERCLA],4 WRDA), water quality improvement (CWA), waste disposal (RCRA, CERCLA), or beneficial use (WRDA) the management strategy used—that is, no-action or natural restoration (no law, CERCLA, or CWA5), in situ containment or treatment (RHA, CWA, MPRSA, CERCLA, or RCRA), or ex situ containment or treatment (CWA, MPRSA, CERCLA, or RCRA) 3   RCRA may apply to land placement of sediments, especially if there is no "return flow" to waters of the United States and toxic characteristics leaching procedure (TCLP) criteria are exceeded CWA Section 404 applies if there is a "return flow" to CWA waters No federal law may apply if the material is contained entirely and TCLP limits are not exceeded 4   Superfund is known more formally as the Comprehensive Environmental Response, Cleanup and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 USC §§9601-9675 5   Restoration could be required in the context of a spill under CWA Section 311

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--> This patchwork of legislation evolved over several decades as a by-product of the efforts of numerous congressional committees and subcommittees with diverse jurisdictions. In each case, the scope and approach of each statute relate more closely to the jurisdictional authority of the sponsoring congressional committee than to any systematic effort to comprehensively—or even coherently—regulate contaminated sediments. The appendix is organized into seven sections: (1) the navigation connection (navigation dredging and sediment placement and the role of the RHA and CWA Section 404); (2) site cleanup (remediation and damage restoration provisions of CERCLA); (3) CWA provisions (regulatory provisions other than Section 404); (4) biennial WRDAs (miscellaneous authorizing, regulatory, beneficial use, and funding provisions); (5) state regulatory authorities (CWA Section 401 and CZMA consistency provisions); (6) gaps, overlaps, and uncertainties (including scenarios illustrating how difficult it can be even to determine which authorities apply); and (7) potential regulatory reforms (opportunities for improvement). THE NAVIGATION CONNECTION The excavation of sediments requires a U.S. Department of the Army permit under Section 10 of the RHA,6 when carried out in "navigable" waters. This same statute applies to in-place or ex situ capping, treatment, or subaqueous containment of sediments if the activity has the effect of altering the navigable waterway's "course, location, condition, or capacity."7 For example, a Section 10 permit is required if sediments are placed in a near-shore or offshore confined aqueous site to create an artificial island or extend waterfront real estate. Section 10 of the RHA is not an environmental provision; its original purpose was simply to protect the navigable capacity of waterways. However, when an activity for which a permit is required may "significantly affect the quality of the human environment," an environmental impact statement (EIS) may be required under NEPA,8 which requires the complete assessment and full disclosure of the environmental impacts of, and alternatives to, proposed major federal actions. A full EIS is not required in every instance. The process begins with an environmental assessment (EA). If the EA indicates that there is no significant environmental impact, then the lead agency can make a finding of no significant impact (FONSI), which obviates the need for an EIS. Preparation of a draft and final EIS, 6   Technically, the statute is the River and Harbors Appropriation Act of 1899 Section 10 states "It shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of any navigable water of the United States, unless the work has been recommended by the [U S Army Corps of Engineers]" (33 USC §403) 7   Id 8   42 USC §§4321-4370

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--> and associated public and interagency review and comment, can be quite time-consuming—averaging 18 months and often taking several years. When dredged sediments are "disposed" of in ocean, inland, or near-coastal waters, a U.S. Department of the Army permit is required. For the dumping of dredged material in the ocean (including the territorial sea, which extends three miles out from the mean low water mark), the applicable statutory provision is Section 103 of the MPRSA, popularly known as the Ocean Dumping Act.9 If the discharge site is in waters of the United States, excluding the territorial sea, then Section 404 of the CWA would apply.10,11 Under authority of Section 404, the U.S. Environmental Protection Agency (EPA) develops guidelines in conjunction with the U S. Army Corps of Engineers (USACE) for specification of dredged or fill material disposal sites. The contaminant status of the material is determined using a manual commonly called the "Gold Book." The Gold Book procedures are used to determine whether the sediment is suitable for unrestricted open-water disposal or whether restriction might be required. The Gold Book is currently being updated. Section 404 does not prohibit the open-water disposal of highly contaminated sediments as long as management actions, such as capping or treatment, are used to bring the sediment disposal activity into compliance with the guidelines. The use of sediments to create, restore, or enhance wetlands, as well as other beneficial uses that may impact waters of the United States, also are regulated under Section 404 and evaluated using the 404 guidelines. One potentially troublesome area involves the land placement of contaminated sediments where there is no runoff back into waters of the United States. In these cases, sediment excavation, if in navigable water, would be regulated by Section 10, and the dredged material might be subject to consideration as a hazardous waste under RCRA, if it displayed a hazardous waste "characteristic" (e.g., by TCLP testing). A pending Federal Register rule change12 will address situations in which sediment is proposed for land placement. The proposed rule change does not address whether sediment placement on land is subject to solid-waste regulation by the states. However, the USACE has asserted since at least 1988 that dredged material is not subject to regulation under RCRA, either as a hazardous or a solid waste.13 9   33 USC §§1401-1445 10   33 USC §§1251-1387 11   Although it might appear that both the CWA and the MPRSA apply to dredged material discharged to the territorial sea, Congress specified that the MPRSA was to preempt other authorities in the event of an overlap of jurisdiction It should be noted that, because the MPRSA does not address the placement of "fill material," fill discharges to the territorial sea would be regulated under Section 404 of the CWA 12   Federal Register, vol 61, no 83, April 29, 1996, p 18849 13   Federal Register, vol 53, no 80, April 26, 1988, pp. 14903, 14910, 14913

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--> Under authority of MPRSA Section 102, the EPA develops discharge criteria in conjunction with the USACE for the dumping of dredged material in ocean waters. The contaminant status of the material is determined using an ocean dumping manual commonly called the "Green Book." The Green Book procedures determine whether the sediment is suitable for ocean dumping. The latest version of the Green Book was published in February 1991. Green Book procedures are used to determine whether dredged material is acceptable or unacceptable for unrestricted ocean dumping. Before a decision is made regarding dumping in ocean waters, consideration is given to any management actions that may be necessary. Tiered testing procedures are used, under both the MPRSA and CWA, to evaluate the suitability of dredged sediments for open water placement. These procedures consider the proximity of known pollution sources to the area to be dredged, the physical and chemical properties of the sediments, and, as appropriate, the results of biological tests. For example, under the ocean dumping criteria14 and associated interagency guidance, a combination of sediment bioassays and bioaccumulation tests is used to assess both the acute toxicity of sediments to resident biota and the potential for the bioaccumulation of sediment contaminants. Based on such tests, dredged material can be classified as either suitable for unrestricted open-water placement or unacceptable for unconfined open-water placement. If the results of laboratory tests indicate a potential for unacceptable adverse effects, then management actions (or management of the placement) need to be considered. Laboratory tests are only indications of potentially unacceptable adverse effects. In making a decision regarding acceptability, the decision maker must consider the effects of the discharge pursuant to 40 CFR §227.13(c)(2)(I) and §227 13(c)(3). Laboratory tests are not pass-fail criteria for purposes of the MPRSA. There continues to be some debate over legal issues15 concerning whether there are any circumstances under which dredged material that "fails" the bioassay and bioaccumulation tests can be approved for ocean dumping-even subject to tight management restrictions or under conditions (e.g., placed within geotextile 14   40 CFR §§223-228 15   These issues arise because of an exception in the ocean dumping criteria allowing an applicant to demonstrate that constituents, although present as other than trace contaminants (and, therefore, normally banned from ocean dumping), are ( I) "present, only as compounds or forms . non-toxic to marine life and non-bioaccumulative in the marine environment upon disposal and thereafter", or (2) "present only as chemical compounds or forms which, at the time of dumping and thereafter, will be rapidly rendered non-toxic to marine life and non-bioaccumulative in the marine environment by chemical or biological degradation in the sea " (40 CFR §227 6[f]) A federal district court, in Clean Ocean Action v. York. 861 F Supp 1203 (D N J 1994), reversed on other grounds, 57 F 3d 328 (3rd Cir 1995). held that neither part of this exclusion would allow post-disposal "capping'' of dioxin-contaminated sediments to overcome bioassay results showing toxicity in excess of "trace contaminant" levels On the other hand, the court was (unaccountably) willing to consider the effects of

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--> bags or covered with a thick cap of uncontaminated sand or clay) designed to ensure the isolation and containment of associated contaminants. These authorities primarily apply to the placement in open water of large quantities of dredged material. They have no applicability to the in-place treatment or containment of contaminated sediments—except to the extent that other sediments must be "discharged" to "cap" or otherwise contain the contaminants of concern. The authorities are also inapplicable to treatment or containment on land—except to the extent there may be incidental filling of wetlands or other waters. One of the problems associated with the regulation of dredged material under Section 404 of the CWA is that the emphasis of this program has evolved from specifying open-water disposal sites for dredged material to protecting ecologically valuable wetlands (and other "special aquatic sites"). Thus, many of the procedures (e.g., the required "sequencing" of avoidance, minimization, and mitigation measures, and the need to do detailed "alternatives analysis") mandated under the EPA's 404 guidelines really have little, if any, applicability to the open-water disposal of sediments in connection with the navigation dredging of rivers and harbors This situation has led to suggestions by, for example, the American Association of Port Authorities, that Section 404 be revised to focus on wetlands (and other "special aquatic sites") and the placement of fill material, with the establishment of a new and separate section to deal with the open-water disposal of dredged material. SITE CLEANUP Several hundred million cubic yards of sediments are dredged annually from navigable rivers and harbors. Only a small fraction of this volume can be considered "contaminated" in terms of restrictions on the ability to place the material in open water.16 By contrast, many sites with no link to navigation require cleanup for environmental reasons. A growing number of these sites involve significant contaminated sediment problems.     capping in evaluating the results of 40 CFR §227 6(c) toxicity testing The court also held that, even when dredged material is too contaminated to be dumped without capping, the mere fact that there is a loss of 2 to 5 percent of the contaminated sediment in the water column during dumping (i e. enroute to the bottom) is not a per se violation of the MPRSA (because if the escaping material were unlawful to dump because it can never be capped, no sediment requiring capping could ever be dumped) The EPA plans to revise the ocean dumping criteria to authorize expressly, under specified circumstances, capping of otherwise prohibited material (J Lishman, EPA, personal communication to K Kamlet, 1995) 16   The percentage of the total dredged material that falls the biological tests has increased somewhat in recent years under revised test procedures, which increased the duration of test exposures and mandated the use of more sensitive test organisms

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--> Superfund There are approximately 1,300 contaminated sites around the country that are listed or proposed for inclusion on the Superfund National Priorities List (NPL).17 NPL sites are highly contaminated areas, often associated with prior hazardous-waste disposal activities, that are targeted for priority cleanup through long-term remedial action. Another 10,000 potential Superfund sites are included in an EPA database (the CERCLIS inventory). These sites are assessed systematically by the EPA to determine which ones could be added to the NPL.18 Many other sites are subject to cleanup under state-level Superfund laws. According to EPA data,19 77 (10.8 percent) of the 712 Superfund NPL sites for which records of decision (RODs) were signed in fiscal years 1982-1991 involved contaminated sediment (both marine and freshwater) as a significantly contaminated "matrix." A much higher percentage of sites (78.5 percent) involved groundwater contamination, based on Superfund's historically greater emphasis on human health than on ecological impacts. Contaminated sediments are likely to be a growing factor at Superfund sites that reach the ROD stage in the future because of the increasing emphasis in EPA regulations on natural resource and food-chain impacts (see footnote 12). An indication of this trend is the large number of NPL sites without RODs-523 representing nearly all of the more than 537 NPL sites not yet at the ROD stage (at this writing)-involving contaminated soil, sediment, or sludge.20 In selecting a remedy under Superfund, nine criteria must be addressed:21 overall protection of human health and the environment compliance with applicable or relevant and appropriate regulatory requirements (ARARs) 17   Sites are placed on the NPL when they score 28 5 or higher on the EPA's "hazard ranking system " The hazard ranking system is a model that serves as the EPA's primary tool for placing sites on the NPL The hazard ranking system was amended by Congress in 1986 (SARA, Section 105) to require, for the first time, consideration as a distinct exposure pathway of "the damage to natural resources which may affect the human food chain" Revisions to the hazard ranking system now require consideration of both the water column and contaminated sediments and provide, for the first time, for the placement of a site on the NPL based on environmental contamination as well as human health impacts 18   Sites are also removed from the inventory In 1995, approximately 28,000 sites (classified as "no further remedial action planned") were dropped from the CERCLIS inventory based on preliminary assessments that determined that further remedial action was not required 19   U S Environmental Protection Agency 1993 Cleaning Up the Nation's Waste Sites Markets and Technology Trends, EPA 542-R-92-012 (Solid Waste and Emergency Response, OS-110W) Page 16 (Exhibit 2-8), Washington D C EPA 20   Environmental Protection Agency 1993 Cleaning Up the Nation's Waste Sites Markets and Technology Trends, EPA 542-R-92-012 (Solid Waste and Emergency Response, OS-110W) Page 37 (Exhibit 3-9), Washington D C EPA 21   40 CFR §300 430(d)

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--> long-term effectiveness and permanence reduction of toxicity, mobility, or volume through treatment short-term effectiveness implementability cost state agency acceptance community acceptance These criteria can be reduced to the following three overall screening factors: environmental acceptability (i.e., overall protection of human health and the environment, compliance with ARARs, state agency acceptance, and community acceptance) technological feasibility (i.e., long-term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment short-term effectiveness; implementability) economic viability (i.e., cost) Where contaminated sediments are addressed under Superfund, the aforementioned nine criteria must be applied in evaluating management alternatives, including compliance with ARARs. ARARs may include "applicable" regulatory requirements, such as "sediment quality criteria" under development by the EPA. They may or may not also include—as urged by representatives of National Oceanic and Atmospheric Administration (NOAA)—"Long and Morgan" sediment values,22 which are measurements that reflect the contaminant concentrations associated with toxicity to aquatic biota (or maximum nontoxic concentrations) in coastal areas. ARARs also include "relevant and appropriate" regulatory standards, even if not directly applicable in the particular situation. The USACE's dredged material tiered testing procedures, including sediment bioassays and bioaccumulation tests, perhaps could be considered ARARs from this standpoint. Corrective action levels for soils under RCRA23 possibly also could be viewed as cleanup standards in appropriate cases. It must be kept in mind, however, that contaminants in dry land soils and contaminants in underwater aquatic sediments have significantly different physical and chemical properties. Thus, regulatory standards established for soils do not have any applicability to sediments. In addition to Superfund's nine criteria for evaluating remedial alternatives, there is a general statutory preference for treatments that "permanently and significantly reduce the . . . toxicity or mobility" of contaminants (Section 121 (b)). 22   E R Long and L G Morgan (1991) The Potential for Biological Effects of Sediment Sorbed Contaminants Tested in the National Status and Trends Program, NOAA technical memorandum NOS OMA 52 Seattle, Washington NOAA 23   42 USC §6901 et seq

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--> The in-place or ex situ capping of contaminated sediments generally would not be considered to have the requisite quality of "permanence"—in the same sense as the destruction or detoxification of sediment contaminants would. However, as discussed in the report (e.g., Chapter 5), properly engineered capping may be an optimum management technique for contaminated sediments under some circumstances. Although there may be ways to augment passive capping (e.g., by amending with nutrients or microorganisms to promote biodegradation or by adding activated carbon to physically absorb contaminants) to more closely resemble typical "treatment" methods and thereby gain the status of a "preferred remedy" under Section 121(b), it may be appropriate to consider changing Section 121(b) to clarify the circumstances under which (e.g., low- to intermediate-level contamination spread over large areas of aquatic bottoms) engineered capping would be considered a "preferred" Superfund remedy. Natural Resource Damage Claims The Superfund law is known primarily for its provisions relating to the cleanup of NPL sites. However, in addition to these remedial response authorities, the Superfund law contains significant provisions for forcing the restoration of "injured" natural resources. The term "natural resources" is defined expansively to encompass not only fish, animals, birds, and other biota, but also air, water, and groundwater resources.24 Both the National Contingency Plan (EPA regulations implementing Superfund) and the U.S. Department of the Interior (DOI) natural resource damage assessment regulations define "water resources" to include associated sediments. Superfund authorizes designated federal and state "trustee" agencies (and Indian tribes) to initiate natural resource damage claims against persons responsible for injury to, destruction of, or loss of natural resources "resulting from" the release or threatened release (causing response costs) of a hazardous substance.25 Recovered funds must be used "only to restore, replace, or acquire the equivalent of' the injured natural resources, but the measure of damages is not limited by the sums that can be used to restore or replace such resources.26 Restoration costs can be enormous, particularly in the coastal marine environment, where contaminated sediments can affect hundreds or thousands of square miles. Thus, Superfund remedial actions (which are geared to mitigating an imminent hazard to health or the environment) have an average price tag of $20 million to $25 million per site, a natural resource damage claim (which is geared to restoring the injured resource to its prerelease, undamaged condition) can be orders of magnitude more expensive. Given that the DOI issued final revised damage assessment regulations in 24   CERCLA §101(16), 42 USC §9601(16) 25   CERCLA § 107(a)(4)(C), 42 USC §9607(a)(4)(C) 26   42 USC §9607(f)(1)

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--> March 1994,27 which, from one perspective, started the statute of limitations clock running again, it can be anticipated that a flurry of natural resource damage claims will be brought in the next few years prior to the expiration of the statute.28 A statute of limitations defines the period of time during which a claimed legal violation or cause of action must be brought. After the statute "expires," such action is barred. In the case of natural resource damage claims under Superfund, the statute of limitations is set at three years from the date of discovery of the resource injury (or the responsible hazardous substance release) or from the date of final promulgation of damage assessment rules, whichever comes later.29 Among federal trustee agencies, NOAA is most likely to be concerned with resource damages affecting marine sediments. New York, Texas, Washington, and California have been the coastal states most active to date in pursuing natural resource damage claims. The primary relevance of Superfund natural resource damage authorities to marine sediment remediation is that they may serve to constrain cleanup options. Specifically, if a contaminated sediment site is part of a natural resource damage proceeding, then mere cleanup or capping to avoid an imminent hazard to health or the environment will not be sufficient. Instead, under Section 9607(f)(1), the only acceptable "remedy" will be one that restores, rehabilitates, or acquires the equivalent of the injured natural resources—including coastal waters, sediments, and associated biota. Hot Spot and Chronic Sediment Contamination Superfund sites can involve the contamination of sediments, other environmental media, or both. They also can involve either relatively localized hot spots of contamination or more extensive areas. Often a Superfund "facility" or site will involve multiple "operable units," each requiring distinct types of remedial action. Within an operable unit, there may be identifiable hot spots of contamination toward which the proposed remedy will usually be primarily directed. Other environmental statutes, notably the CWA and various biennial WRDAs, also directly (or indirectly) address the issue of contaminated sediment hot spots.30 27   Natural Resources Damage Assessments, Final Rule, Federal Register, vol 59, no 58. March 25, 1994, p 14262 These regulations were challenged by numerous industry groups in February 1995 (see footnote 23) 28   If upheld on appeal, a federal judge's ruling in March 1995 will result in the statute of limitations being treated as expired for any resource injuries discovered more than three years ago U S v Montrose Chemical, CV90-3122 (C D Cal 3/22/95) An appeal was filed immediately with the Ninth Circuit U S Court of Appeals 29   42 USC §9612(d)(2) 30   A summary of applicable provisions of the EPA's major environmental statutes, some of which are not addressed in detail in this review, can be found in Environmental Protection Agency 1991 Contaminated Sediments Relevant Statutes and EPA Program Activities, EPA 506/6-90-003 (Table 1) Washington D C EPA

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--> offshore islands (as illustrated in the Hart and Miller islands project—see also Appendix C). Such use allows contaminated sediments to be isolated and contained by placement in the interior of the diked area, surrounded and covered by progressively cleaner materials, while still taking advantage of their physical bulk. The legal issue of who owns the real estate thereby created can be significant, particularly in land-scarce urban areas, where such real estate can be very valuable. The legal complexities of this issue are illustrated by the dispute, now pending in the U.S. Supreme Court, between the states of New York and New Jersey over who owns Ellis Island in New York Harbor. Although the original island was in New York waters, the island was expanded by the use of fill, so that a large part of the island is now on the New Jersey side of the line separating the two states' waters. Where dredged material is used to construct or expand an island, a case may become even more complex, depending on who owned the dredged material used for construction. GAPS, OVERLAPS, AND UNCERTAINTIES Table B-1 indicates how a few federal statutes, and potential state approval requirements, may apply to six sediment excavation and management scenarios. Table B-l illustrates the complexity of the regulatory framework, showing that multiple legal authorities may apply simultaneously in a given situation (e.g., Scenario 4), whereas in other cases (e.g., Scenario 6) there is the possibility that no statute applies. Table B- also contains many footnotes, reflecting the confusion and uncertainty over the applicability of certain statutes in particular situations. Readers confronting such situations are encouraged to consult knowledgeable environmental counsel. As can be seen, a Section 10 RHA permit would be required any time excavation or dredging is carried out in navigable waters (e.g., scenarios I and 6)119 and could be required whenever construction or capping is carried out in navigable waters, including coastal ocean waters (e.g., scenarios 2 and 4).120 In addition, by virtue of the "excavation rule" promulgated in August 1993,121 any excavation, mechanized land clearing, or channelization work in waters of the United States presumptively requires a CWA Section 404 permit (e.g., 119   In the context of the RHA. "navigable waters" refers to waters that are "navigable-in-fact" in the traditional sense or susceptible to navigation The term does not apply to more broadly defined "waters of the United States," including wetlands, which may be used by migratory birds or have some other link to interstate commerce but are not susceptible to navigation 120   Whether Section 10 is considered to apply or not depends on whether there is a demonstrable obstruction to navigation or the potential to alter the course, location, condition, or capacity of a navigable waterway In addition, Section 10 might not apply where a construction project in navigable waters was authorized specifically by Congress 121   Federal Register, vol 58, no 163, August 25. 1993, pp 45007-45033, 33 CFR §323 and §328

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--> TABLE B-1 Interrelationships of Sediment Regulatory Authorities in Selected Scenarios Scenario A. CWA B. MPRSA/LDC C. RHA D. CERLA E. RCRA F. State approvals 1 Excavation of contaminated sediment hot spots from a waterway Section 404 Permit required for excavation in 404 waters (including wetlands if not part of normal dredging operationsa Not applicable Section 10 covers dredging and excavation in navigation channels regardless of purpose (i.e., navigational dredging versus environmental cleanup Could apply when part of the cleanup or restoration of an underwater Superfund site If part of a corrective action or RCRA facility closure State CZMA consistency determination could be required if conducted in state coastal zone, state certification under CWA 401 could also be required for activities requiring a CWA permit (see 1 A) 2 Use of sediments to construct berms, containment facilities, or islands in navigable or ocean waters Section 404 Permit required for discharges of dredged or fill materials in 404 watersb Section 103 Permit required for disposition of any material in ocean waters (seaward of the baseline), no permit required when material is placed to construct an artificial island when otherwise regulated by federal or state law Section 10 Permit required for obstructions to navigation and changes in the course or condition of navigable waters Not applicablec Not applicabled See 1 F 3 Ocean dumping of dredged material Section 401 State water quality certification could be required for dumping in or near state territorial waters, when the dumping may cause state water quality standards in such waters to be exceeded Section 103 Permit required from USACE for the transportation and dumping of this material See 2 C Not applicable (but see footnote b) Not applicable (but see footnote c—at least for material dumped beyond the three-mile limit of the territorial sea) Section 401 State certification could be required if discharged in the territorial seas CZMA consistency determination could be required for loading and transport facilities located in a state's coastal zone

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--> Scenario A. CWA B. MPRSA/LDC C. RHA D. CERCLA E. RCRA F. State approvals 4 Disposal of contaminated sediments by clean capping Section 404 Permit required if in 404 waters (or involving a return flow to such waters) Section 103 Permit required if discharged into ocean watersg Section 10 Permit may be required if intentional capping results in mounding of sediments that obstructs navigation or alters the waterway's condition If contaminants are subsequently released and cause an environmental hazard, cleanup could be required, unless specifically permitted under 4 A or 4 B, capping may or may not be deemed a preferred remedy under Superfund If sediments are TC toxic (exceed RCRA TCLP limits), the discharge occurs in inland or near-shore waters (out to three miles)—especially wetlands, and the disposal is not permitted under 4 A or 4 B, a RCRA permit could be required See 3 F 5 Land disposal of contaminated sediments Runoff or return flow into 404 waters may require a permit under Section 404 or Section 402h, a 404 permit would also be needed if the disposal site includes a regulated wetland Not applicable Not applicable If land disposal subsequently results in uncontrolled contaminant releases (especially if they cause an imminent hazard, cleanup or natural resource damage restoration could be required under CERCLA—unless the specific contaminants were authorized under a federal permit The USACE has asserted since 1988 that RCRA does not apply to any land disposal of dredged material, but the EPA does not agree, a pending RCRA rule would exempt from the possibility of RCRA regulation for on-land dredged material containment facilities that have 404-regulated return flow or that impact regulated wetlands (see also 4 E) If 5 A applies, section 401 certification may be required, if located in a state's coastal zone, a CZMA consistency determination may be required (see 1 F)

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--> Scenario A. CWA B. MPRSA/LDC C. RHA D. CERCLA E. RCRA F. State approvals 6. Natural restoration Not applicable Not applicable Not applicable Studies could be required under a Superfund (both remedial action and damage restoration provisions), leading to selection of the natural restoration alternative If site is considered a RCRA site (see 4 E), natural restoration may or may not be considered adequate corrective action When state has assumed the RCRA program under 4 E situation, otherwise, not applicable a This became a regulatory requirement under the excavation rule adopted by the USACE and EPA in the summer of 1993 A 404 permit would thus be required, covering the incidental fall-back of sediment, when sediments were excavated for environmental cleanup or as a source of fill material b Although there may be some debate on this point, sediments dredged from a waterway bottom are dredged materials even if they are used as fill to convert an aquatic area to dry land The CWA regulates dredged material discharged in inland waters out to the coastal baseline Beyond the baseline, the MPRSA takes over Fill material that does not come from a waterway bottoms not regulated under the MPRSA (unless it qualifies as the disposal of a waste) but requires a 404 permit when deposited out to the three-mile limit of the territorial seas c Unless the material is contaminated and results in an uncontrolled release requiring remediation that is not specifically addressed in a federal permit (and thereby subject to the federally permitted release exemption from CERCLA) d If the facility is considered to contain hazardous wastes or to be a hazardous waste treatment, storage, or disposal facility, the EPA could consider it to require a RCRA permit However, pending revisions to RCRA regulations would create a dredged material exclusion for sediments that are otherwise regulated by permit under the CWA or the MPRSA This would include confined disposal facilities with a return flow to U S -regulated waters, requiring CWA Section 404 permit e See Title V of WRDA 92 and discussion in the text f A permit will be issued or withheld, depending on the extent of the biological, physical, and chemical impacts to the aquatic environment The mitigating effects of capping can be considered g A permit will be issued or withheld, depending on the results of bioassay and bioaccumulation tests and other evaluations required under the ocean dumping criteria If the material is unsuitable for ocean dumping, it is unclear legally whether after-the-fact capping can be used to render permissible an otherwise prohibited activity Parties to the London Convention of 1972 have signified their intent under the convention that management practices, including capping, that reduce impacts on the marine environment can be taken into account in deciding whether materials may be disposed of at sea The EPA is considering amendments to the ocean dumping criteria to clarify that this is also the case under U S law h A Section 402 effluent discharge permit could be required if the land disposal site includes treatment of runoff or wastewater and the effluent is discharged from a point source (e g , an outfall pipe)

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--> scenarios 1 and 6). The only exception was for navigation dredging in traditionally navigable waters.122 The excavation of contaminated sediment hot spots for environmental reasons would not qualify for this exception.123 A state water quality certification under CWA Section 401 is not required for dredging except when covered by the excavation rule (see Scenario I A), but it would be required whenever a discharge would have the potential to adversely affect the quality of waters of the United States subject to state jurisdiction (i.e., out to the three-mile limit of the territorial seas). Any activity (including indirect staging, transporting, and handling) in or affecting a state's ''coastal zone" would be subject to a determination of consistency with a state's federally approved coastal zone management plan (see scenarios 1, 3, and 6). Dredged or excavated uncontaminated sediments can be dumped only at officially sanctioned, formally designated ocean dump sites—and then, only subject to a USACE Section 103 permit under the MPRSA. Contaminated dredged materials that fail prescribed bioassay and bioaccumulation tests under the ocean dumping criteria and Green Book guidance (or that are otherwise deemed to violate prohibitions under the London Convention of 1972 against the ocean dumping of "wastes and other matter" containing "Annex I" constituents as "other than trace contaminants") could be barred from ocean dumping (or could be subject to stringent management controls, including capping)124 (see scenarios 2, 3, and 4). Under WRDA 1992 Title V (which amended the MPRSA), in addition to enforcing state water quality standards (through the 401 certification process), states now have the authority to establish their own restrictions on ocean dumping in waters subject to state jurisdiction. A CWA Section 404 permit is required from the USACE—again, subject to state water quality certification—when excavated sediments are to be placed (or capped) in inland waters (i.e., landward of the coastal baseline) or wetlands (see scenarios 2 and 4). If dredged sediments from the seabed or inland waters were 122   The excavation rule has been challenged by several industry trade associations in American Mining Congress, et al v U S Army Corps of Engineers, et al , Civil Action No 93-1754 (D D C 1993) 123   However, if the excavation were carried out pursuant to a CERCLA record of decision as part of an approved remedial action, then the need for a formal permit could be avoided as long as the underlying substantive requirements of the Section 10 regulations were satisfied 124   Although the London Convention purports to flatly prohibit the ocean dumping of wastes or other matter containing Annex I ("black list") constituents as "other than trace contaminants," the United States employs bioassay and bioaccumulation—rather than chemical-tests—to determine whether this situation exists Because such tests are not chemical specific (i e., one cannot be certain whether an Annex I constituent or something else caused the test to be failed), and because there are escape clauses that have been recognized under both international and domestic law, the prohibition is not quite as absolute as its wording would suggest As previously noted, the ocean dumping criteria contain exceptions (e g , for material that is "rapidly rendered harmless") that could allow material to be dumped in the ocean even after the biological tests have been failed

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--> discharged125 intentionally by pipeline into ocean waters out to three miles, the sediments likewise would be subject to the CWA (i.e., a Section 404 permit—and possibly an ocean discharge permit under Section 403) rather than to MPRSA requirements. The same (i.e., the need for a Section 404 permit) holds for "runoff or overflow [into 404 waters] from a contained land or water [dredged material] disposal area," which USACE regulations126 define as included in the definition of "discharge of dredged material" (see scenario 5.A). If contaminated sediments are excavated for environmental cleanup purposes, any disposal or management action (including capping) could be subject to the remedial cleanup requirements of CERCLA—if there is an uncontrolled release triggering the need for such cleanup (see scenarios 1.D, 4.D, and 5.D). Indeed, as part of the development of a remedial action plan, even natural restoration (see scenario 6.D) could require regulatory review and approval. Moreover, if contaminated sediments are placed on land or at a coastal disposal site or containment facility, RCRA could be deemed to apply—if the sediments display hazardous waste "characteristics."127 The USACE long has taken the position that dredged material is exempt from RCRA because it is not "solid waste." The EPA's view is that it can still be subject to RCRA (under the "contained-in rule"), when it becomes contaminated with hazardous wastes, pollutants, or contaminants. Under the hazardous waste identification rule under development by the EPA, consideration is being given to a "dredged material exclusion," which would exclude dredged materials (but not "fill material'') from the possibility of RCRA regulation if they are being regulated under a CWA or MPRSA permit. This would include dredged material placed in an on-land CDF with a regulated "return flow" but not dredged material in a totally contained CDF (see scenarios 4.E and 5.E). Finally, in cases where in-place contaminated sediments cause or contribute to injury or the loss of "natural resources," including coastal biota, parties responsible for the contaminant releases can be sued by federal, state, or tribal "trustees" for natural resource damages. Recovered money is used not only to pay for cleanup of the affected sediments, but also to fully restore, rehabilitate, or provide the equivalent of the injured resources. Such monetary damages can be substantial because they include compensation for any interim "lost use" of the 125   USACE rules are based on intent 126   33 CFR §323 and §323 2(d) 127   The most likely "characteristic" to apply in this situation is the "toxicity" characteristic, the presence of which is established by subjecting the material to the TCLP and determining whether established regulatory levels for any of 39 specified TC constituents have been exceeded (40 CFR §261) Also, see Federal Register, vol 55, no 126, June 29, 1990, pp 26986-26998 Wet dredged material is unlikely to exceed TC regulatory limits, even when high levels of contaminants are present Dry dredged material could exceed such limits when certain contaminants are present, even at very low levels

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--> injured resources and even for the lost "contingent value" of knowing that the resource is there in an unimpaired condition (see scenarios 1.D and 5.D). Gaps in Coverage The preceding discussion demonstrates that there are a number of overlaps in regulatory coverage of sediments that are managed because of requirements associated with either navigation dredging or environmental cleanup. It also provides a flavor of the complexity associated with a hodgepodge of laws and regulations that were never primarily intended to address sediments. And it provides an indication of some of the uncertainties related to the applicability of particular regulatory requirements under certain circumstances. There are also gaps in coverage. Consider the dilemma of a coastal port that must dredge its harbor and navigation channels periodically. These waters are subject to contamination from a multiplicity of point and nonpoint sources, as well as from spills, both in the immediate port area and throughout wide areas of tributary watersheds. In most cases, the vast majority of contaminants that come to rest in bottom sediments are derived from sources located many miles upstream. Yet the port bears the brunt of the impact—in terms of increased placement costs for contaminated sediments and in terms of lengthy delays in securing the necessary regulatory permits and approvals—if they can be secured at all. By contrast, the responsible upstream sources are seldom held accountable. Occasionally, they may have their discharge permit limits tightened. Infrequently, they may be subject to cleanup requirements or restoration orders under CERCLA. But there is no systematic mechanism in place for ensuring that upstream discharge sources take into account downstream impacts before being allowed to discharge128 or, failing this, that responsible upstream sources share in the incremental costs they impose on downstream users, such as ports. Another illustration of legal uncertainties relates to the placement of contaminated sediments within a diked containment area for the purpose of constructing an offshore containment island. The status of this material, and even the legality of its placement, depends on whether it is deposited more than three miles offshore (see Table B-1), whether the "purpose" or "primary purpose" of placement is considered disposal or island creation, and/or whether an exclusion under the ocean dumping criteria applies (see Scenario 2.B). The MPRSA (33 USC §1402[f]) defines "dumping" to exclude ". . . the construction of any fixed structure or artificial island [and] the intentional placement of any device in ocean waters or on or in the submerged land beneath such waters, for a purpose other than disposal, when such construction of such 128   Limited exceptions to this are the water-quality-based discharge limits under Section 303 of the CWA, which were discussed previously

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--> placement is otherwise regulated by Federal or State law or occurs pursuant to an authorized Federal or State program. . . ." Clearly, if clean sand of land origin were deposited to construct a containment dike within which an island would be created, the placement of this "fill material" would be exempt from the MPRSA—both as "fill" (if carried out within three miles, where it would be regulated under CWA Section 404—see scenario 2.A) and under the MPRSA's exclusion for construction of a fixed structure. For contaminated sediments (i.e., of aquatic origin), however, it would be harder to argue both that the material was not MPRSA-regulated "dredged material" and that the material was being deposited ''for a purpose other than disposal." At best, one could say that, in addition to disposal, one purpose is the creation of an offshore island. It is not clear whether this is sufficient. Also, if the material were deposited in ocean waters beyond the three-mile limit, where no other federal or state permit would be required, it is unclear whether it could qualify under the MPRSA's "construction" exception, which requires regulation under other federal or state law. Ultimately, if the sediment contaminants were isolated sufficiently—i.e., by being encapsulated within a containment dike and surrounded by large volumes of uncontaminated sediments—from the surrounding marine environment so as to be rendered "non-toxic to marine and ," then the material might be viewed, despite its intrinsic toxicity, as present as "other than trace contaminants" under the exception found in the ocean dumping criteria.129 Alternatively, one might argue that confined disposal on the seabed behind containment dikes is "seabed emplacement" and not "disposal in ocean waters" and that it is appropriate to treat it as similar to land containment in a CDF (see discussion of related issue in Table B-1). Although the use of contaminated sediments to construct offshore containment islands probably will become more common, in the New York Bight and elsewhere, as open-water and land options become more limited, resolution of this legal issue may have little practical significance because a project of this magnitude almost certainly would require separate congressional authorization. And Congress is free to specify what permitting and environmental analysis procedures it wishes to have applied. POTENTIAL REGULATORY REFORMS The following legislative and regulatory changes could be considered to avoid or minimize gaps, overlaps, uncertainties, and inefficiencies: Amendments to the CWA could distinguish between the open-water disposal of dredged material and the discharge of fill material into wetlands and other "special aquatic sites." Much of the complexity that has developed over the years 129   40 CFR §227 6(f)

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--> in the application of Section 404 is the result of attempts to control adverse effects on wetlands caused by development. A new CWA section dealing with open-water discharges of dredged material would allow the separation of wetlands development and protection issues from the very different issues associated with the construction and maintenance of efficient navigation channels. The open-water disposal of dredged material resulting from navigation dredging of public ports and waterways could be subject to a unified set of statutory and regulatory requirements that do not differentiate (except where a specific technical justification can be provided) among inland, estuarine, and ocean waters. The EPA and the USACE have gone part of the way toward accomplishing this by developing an Inland Testing Manual, which parallels the Green Book in setting forth a tiered testing framework using freshwater and estuarine species. The decision-making framework for the management of contaminated sediments could be simplified and made more efficient if the full range of placement and management options were required to be considered, based on environmental acceptability (risk), technological feasibility, and economic viability. From the standpoint of environmental acceptability and risk, a single, unified tiered-testing procedure needs to be established and used to define the contamination status and environmental and health hazard potential of sediments excavated from navigable or ocean waters. This procedure could address the environmental risks associated with freshwater, marine, and land placement, containment, or the beneficial use of such sediments.130 The screening criteria and regulatory limits associated with this procedure could be treated as ARARs under CERCLA and could preempt (by statute) otherwise applicable federal regulatory requirements under the RCRA and other pollution control statutes. (This procedure should not, however, displace CWA Section 404 wetland procedures or other requirements directed primarily at preventing direct physical damage or disturbance, rather than pollution, impacts.) In-place or off-site capping of contaminated sediments, where determined by the EPA or USACE to be an environmentally acceptable, economically viable, and technologically preferred alternative, could be deemed to be a form of "treatment [which] permanently and significantly reduces the . . . toxicity or mobility" of associated pollutants and contaminants, within the meaning of Section 121(b) of CERCLA.131 Because there can be conflict between the state and federal requirements that are difficult to resolve, the EPA could be given the statutory authority to reject as scientifically unjustified more-stringent state requirements-unless the state is 130   The EPA is standardizing solid-phase sediment toxicity and bioaccumulation tests for freshwater and marine species See U S Environmental Protection Agency 1992 Tiered Testing Issues for Freshwater and Marine Sediments. EPA 823-R93-001 Washington D C EPA 131   42 USC §9621(b)

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--> prepared to provide an alternative site or assume the incremental costs of additional placement or use restrictions. This change might foster timely decision making. The "local cooperation" requirement (e.g., under WRDA 1986 Sections 101, 102), which currently requires local sponsors of federal navigation projects to bear full responsibility for the construction, operation, and maintenance of necessary dredged material disposal sites, could be repealed or substantially modified. This is needed to avoid the strong economic incentive favoring the open-water disposal of (even highly contaminated) dredged materials (i.e , at "free" disposal sites) in preference to containment on land (i.e., at sites that must be paid for, if not fully, at least in part by the local sponsors). All versions of the proposed WRDA 1996 legislation would require federal cost sharing for on-land dredged material placement sites, including CDFs, so this suggestion is expected to become law. The ownership status of newly created offshore containment islands, nearshore containment areas, and other new real estate created with dredged material needs to be clarified-that is, ports need to acquire an ownership interest commensurate with their degree of cost sharing or funding of the site and their contribution of dredged material to construction of the new real estate. The decision-making framework needs to encourage and promote appropriate beneficial uses of dredged material and contaminated sediments.132 For example, contaminated sediments could be used safely and beneficially in the interior of a diked containment facility, where they are surrounded and capped by uncontaminated sediments. Legislative initiatives to require watershed planning and management initiatives to control water pollution sources need to take into consideration ports' interests in minimizing upstream point- and nonpoint-source contributions to downstream contamination and need to require explicit consideration of downstream impacts. They also need to require watershed-specific inventories (including identification of sources) of upstream pollutant contributions to problematic downstream sediment contamination in port areas Federal and state regulatory agencies need to be authorized and required specifically to tighten upstream discharge permit conditions and restrictions to reduce downstream port impacts. Finally, consideration needs to be given to authorizing the EPA, where identifiable upstream sources contribute "disproportionately" to downstream sediment contamination, to allocate and recover an appropriate share of cleanup or disposal costs from such discharge sources. CWA Section 303 could be amended to require states and the EPA, in setting 132   For example, see U S Environmental Protection Agency 1992 Evaluating Environmental Effects of Dredged Material Management Alternatives—A Technical Framework. EPA 842-B-92-008 Washington D C EPA

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--> TMDLs for waterway segments and in developing load allocations (WLAs and LAs) for point and nonpoint sources, to consider impacts on downstream sediment quality—where such impacts may impair downstream water uses or interfere with or complicate navigational or environmental dredging. Although it is probably not possible for most sediment contaminants to quantitatively link discharges from individual point and nonpoint sources to site-specific buildups in downstream sediments, there is no reason why presumptive sources of problematic sediment contaminants could not be inventoried and prioritized so that regulators could use the TMDL approach to progressively reduce contamination from the most important sources. CONCLUSION The efficient and effective management of contaminated sediments, whether associated with navigation dredging or environmental cleanup, is hampered by both too much and too little legislative and regulatory attention. On the one hand, few aspects of sediment handling, from initial excavation to ultimate disposal, are unregulated. On the other hand, regulatory coverage is haphazard and bears little relationship to underlying environmental or human health hazards and little resemblance to an efficient and coherent process that is predictable or reliable. As environmental concerns make economically critical navigation dredging more and more difficult, and as the identification, prioritization, and remediation of contaminated sediment sites accelerate, these regulatory limitations will become more evident and constraining. Appropriate legislative and regulatory initiatives could do much to avoid these problems and facilitate the efficient and effective management of all sediments, especially contaminated sediments.