Contaminated Sediments in Ports and Waterways: Cleanup Strategies and Technologies (1997)

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.

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.

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.

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.

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)

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 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,

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

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

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.

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.

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)

• 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)).

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.

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

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.

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

The CWA contains a number of provisions—in addition to Section 404, which regulates the discharge of dredged or fill material into navigable waters of the United States—that have general or site-specific relevance to contaminated sediments and sediment-associated contamination.

CWA Section 115 (in-place toxic pollutants), although seldom funded and even less frequently utilized,³² directs the EPA "to identify the location of in-place pollutants with emphasis on toxic pollutants in harbors and navigable waterways." This section also authorizes the EPA, acting through the USACE, "to make contracts for the removal and appropriate disposal of such materials from critical port and harbor areas." Thus, Section 115 takes the common sense approach of allowing the removal of hot spots of toxic pollutants to be "piggybacked" on nearby dredging carried out for navigation reasons, with the EPA reimbursing the USACE for the incremental costs. The eminently plausible logic supporting this approach is that dredging for hot spot removal in conjunction with a navigation project would be far less costly than carrying out a separate, freestanding remediation project. Note that "appropriate disposal" still is required for any contaminated sediments that are so excavated. It is unfortunate that this provision, which is the only CWA provision directed at managing in-place contaminated sediments, is not used more often.

CWA Section 303 (water-quality-based discharge limits)³³ requires each state to establish numerical or narrative water quality standards for each pollutant to protect designated uses of regulated waterway segments. However, the CWA's primary mechanism for controlling point sources of water pollution is the use of technology-based effluent limits. States must identify water-quality-limited bodies of water—those that cannot meet the quality-based standards simply by adhering to technology-based limits.

Where technology limits prove insufficient to meet water quality standards in a given waterway segment, more stringent, water-quality-based discharge limits are required to be imposed under Section 303. After a state establishes and the EPA approves a list of quality-limited waterway segments, the state must conduct a study to establish the total maximum daily load (TMDL) for each pollutant that

the body of water can receive without violating the water quality standard. The TMDLs then are used to establish waste load allocations (WLAs) for each point source of each pollutant, after leaving unallocated a portion of the TMDL as a margin of safety. Nonpoint sources, such as storm water runoff, are assigned load allocations (LAs). As one of the CWA's few watershed-oriented regulatory provisions, and one that addresses both point and nonpoint sources of pollution, this provision has a significant potential to control upstream sources of downstream sediment contamination.

Although the requirements for TMDLs, WLAs, and LAs have been part of the CWA since 1972 (and the EPA's list of pollutants requiring water-quality-based limits was promulgated in 1978), the EPA and the states have been unable to implement this program fully. However, environmentalists have shown a recent willingness to use CWA citizen suit authority to require the EPA to enforce more vigorously state adherence to Section 303 TMDL requirements.³⁴ In the absence of new legislation explicitly requiring pollutants to be managed on a watershed-wide basis, or expressly holding upstream discharge sources accountable for resultant downstream sediment contamination,³⁵ water quality discharge

limits under Section 303 are among the few available mechanisms under existing law by which regulators could more aggressively regulate upstream pollution sources that impact sediment quality.

CWA Section 304(1) (toxic hot spots)³⁶ required the states to identify in 1989 those state waters that could not attain or maintain ambient water quality standards "due to toxic pollutants." For each segment of toxics-limited navigable waters, the states were to identify "the specific point sources" discharging any toxic pollutant and the amount of each such pollutant believed to be contributing to such water quality impairment. Finally, the states were to develop an "individual control strategy'' for each waterway segment capable of meeting applicable water quality standards within three years. This provision is not directed at contaminated sediments.³⁷ However, to the extent it promotes the control of point-source toxic discharges that contribute to sediment contamination, it is a relevant component of a contaminated sediments remediation strategy. Although the statutory deadlines for state action under this provision have passed, the provision directs the EPA to implement the requirements in the absence of an approvable state strategy.

CWA Section 307 (toxic pollutants and pretreatment)³⁸ requires effluent limitations based on the "best available technology economically achievable" for the applicable category or class of point sources to be applied to discharges of specified priority toxic pollutants. This section also requires that pretreatment standards be applied to prevent discharges into publicly owned treatment works from interfering with, passing through, or otherwise being incompatible with such treatment works. Like Section 304(1), this section is of indirect relevance to the problem of contaminated sediments and toxic hot spots.

CWA Section 319 (nonpoint-source pollution)³⁹ requires states to submit to the EPA for approval a report identifying navigable waters within the state that, without additional action to control nonpoint sources, could not reasonably be

expected to attain or maintain applicable water quality standards or goals. States then are required to establish and implement a management program for nonpoint sources, emphasizing a watershed approach and using "best management practices and measures." Although nonpoint-source pollution contributes, along with point source discharges, to downstream sediment contamination, it is somewhat less likely than discrete point sources to contribute to hot spots of sediment contamination.⁴⁰

CWA Section 320 (National Estuary Program)⁴¹ provides for the nomination and designation of estuaries of national significance that will be subject to supplemental controls on point and nonpoint sources of pollution based on a comprehensive management plan for the estuary. Sixteen estuaries throughout the United States were to be given priority consideration under this program. Most of these estuaries have since been addressed by the program. Section 320 is one of a number of geographically specific provisions under the CWA and WRDAs that may result in a variety of additional contaminated sediment management requirements at specific locations.

CWA Section 311 (oil and hazardous substance spills)⁴² establishes strict liability for discharges of oil or hazardous substances into or upon the navigable waters of the United States. This section supplements the provisions addressing point and nonpoint sources by focusing on contaminants introduced by inadvertent spills.

CWA Section 402 (point source discharges)⁴³ establishes a permit program for point source discharges of pollutants into waters of the United States. This program has been delegated to the states in most parts of the country. In terms of contaminated sediments, one of the major limitations of this program is that it has

tended to address, for any given discharge source, only a few of the toxic pollutants that may be present and may contribute to sediment contamination.⁴⁴ This limitation is compounded by the fact that, once a discharge permit is issued, it "shields" the discharger against later abatement efforts or damage claims directed even at pollutants not specifically addressed in the permit. Some EPA regions and states have sought to address this problem by requiring, in certain instances, the use of whole effluent bioassays and biomonitoring as permit conditions, so that the focus is placed on reducing overall toxicity—regardless of the mix of pollutants contributing to the toxicity.

CWA Section 118(c)(3) (toxics in Great Lakes sediments)⁴⁵ established a five-year study and demonstration program in the Great Lakes relating to the control and removal of toxic pollutants, with an emphasis on bottom sediments. The EPA was directed to publish a variety of information, including "specific numerical limits" to protect health, aquatic life, and wildlife from the bioaccumulation of toxic substances. A final report to Congress was due at the end of 1993. This was the basis for the EPA's Assessment and Remediation of Contaminated Sediments (ARCS) program. The ARCS program has evaluated a number of contaminated sediment technologies—particularly at heavily contaminated sites in the U.S. Great Lakes, known as "areas of concern" under the U.S.-Canada Great Lakes Water Quality Agreement

The CWA identifies a number of other specific regional problem areas for targeted remedial or planning efforts related to contaminated sediment issues. These areas include the Chesapeake Bay (establishment of a Chesapeake Bay Program to determine, among other things, the impact of sediment deposition in the bay and the sources, rates, routes, and distribution patterns of such sediment deposition)⁴⁶; the upper Hudson River (project to demonstrate methods for the selective removal of polychlorinated biphenyl (PCBs) contaminating bottom sediments of the Hudson River)⁴⁷; and Long Island Sound (management study to address issues including "contaminated sediments and dredging activities").⁴⁸

Since the nineteenth century, Congress has periodically enacted public works legislation authorizing water resource projects. Originally termed the Rivers and Harbors Acts, which were adopted at irregular intervals, more recent legislation has been enacted as Water Resource Development Acts, and there has been an effort to enact them every two years (there was a gap in 1994). Although WRDA statutes are primarily intended to authorize federal funding for particular navigation and flood control projects and to specify cost-sharing formulas for eligible projects, they have often been used as vehicles for modifying the regulatory framework (or for waiving or varying certain regulatory requirements on a project-specific basis) for water resource projects. The following section summarizes provisions of the various WRDA statues that either directly address sediment issues or deal more broadly with management issues discussed in the report. These issues include cost-sharing for navigation projects and incentives for the beneficial use of dredged material.

WRDA7 1986⁴⁹ reformed the USACE's Civil Works program by establishing a comprehensive cost-sharing scheme for distributing the construction costs for water resource development projects between the U.S. government and nonfederal interests⁵⁰ The percentage of the nonfederal contribution for navigation projects depends on the depth of the project. For all navigation projects, however, the act requires that nonfederal interests (i.e., local sponsors) provide all necessary lands, easements, rights-of-way, and dredged material placement areas, as well as perform necessary operation and maintenance (this is sometimes referred to as "the local cooperation requirement").⁵¹ The value of these contributions is credited toward the nonfederal interest's share of the project costs A 1993 Department of the Army legal opinion⁵² held that the local sponsor is also responsible (in most cases) for "any diking costs necessary to prepare a site to function as a disposal area."⁵³ (WRDA 1986 also imposed a harbor maintenance tax and an inland

waterways tax and authorized the creation of a Harbor Maintenance Trust Fund and an Inland Waterways Trust Fund;⁵⁴ money from the former trust fund was to be used to fund up to 40 percent of eligible operations and maintenance costs assigned to the commercial navigation of all harbors and inland harbors in the United States.⁵⁵ Nonfederal interests to generate funds to cover their cost shares, are authorized to levy port or harbor dues on vessels and cargo utilizing a harbor.⁵⁶)

One of the ironic (and probably unintended) consequences of making the local sponsor responsible for dredged material placement facilities is that, all else being equal, a strong economic incentive is created to use open-water sites (which are "free") in preference to land and near-shore sites, which must be paid for by the project proponent. It also creates a dichotomy between ports and harbors in different parts of the country. For example, Section 123 of the Rivers and Harbors Act of 1970 authorizes the secretary of the army to construct, operate, and maintain contained disposal facilities (CDFs) in the Great Lakes and their connecting channels, with local interests generally bearing none of the costs and, under certain circumstances, bearing only 25 percent of the construction costs.⁵⁷

Because the presence of contaminated sediments in an area that lacks adequate, environmentally appropriate placement capacity for the material can create major impediments to proceeding with commercially essential navigation dredging, the issue of who must construct and operate a CDF can be of critical significance. There is a proposal in WRDA 1996 to require the USACE to contribute to the cost of land placement facilities, including CDFs for dredged material, on the same cost-sharing basis as specified in WRDA 1986 for new-work dredging.

Other WRDA 1986 provisions of interest include:

• Section 201 (a), dealing with deep-draft harbor development projects authorizes the creation of 800 acres of land with dredged material from deepening of the entry channels to the harbors of Los Angeles and Long Beach, California;⁵⁸ directs that the disposal of beach quality sand from the deepening of New York Harbor and adjacent channels in New York and New Jersey shall take place at specified oceanfront beaches "at full federal expense" and prohibits the placement of dredged material from these projects at Bowery Bay, Flushing Bay, Powell's Cove, Little Bay, or Little Neck Bay⁵⁹; requires the USACE, in connection with the Oakland Outer Harbor,

• California, navigation project, to "study alternative dredged material disposal plans, including . . . plans which include marsh formation" and to monitor the effects of dredged material placement measures, including "such measures as will result in fish and wildlife habitat enhancement"⁶⁰; directs the USACE, in connection with the Duluth-Superior, Minnesota and Wisconsin, navigation project, to study "whether it would be more cost-effective and environmentally sound to control future sedimentation than to conduct periodic maintenance dredging of such project"⁶¹; and directs, in connection with the Gulfport Harbor, Mississippi, navigation project, that, "for reasons of environmental quality, dredged material from such project shall be disposed of in open water in the Gulf of Mexico in accordance with all provisions of Federal law" and that, for purposes of economic evaluation, ''the benefits from such open water disposal shall be deemed to be at least equal to the costs of such disposal."⁶²
• Section 211 directed the EPA to designate within three years one or more alternative dredged material ocean dump sites, "not less than 20 miles from the shoreline," for disposal of dredged material currently placed at the Mud Dump site. Following the designation of new site(s), only "acceptable dredged material" (defined as "rock, beach quality sand, materials excluded from testing under the ocean dumping regulations. . . , and any other dredged material [including that from new work] determined by the Secretary, in consultation with the Administrator, to be substantially free of pollutants") could continue to be placed at the Mud Dump.⁶³
• Section 704 directed the secretary of the army to investigate and study the feasibility of using the capabilities of the USACE "to conserve fish and

• wildlife (including their habitats)."⁶⁴ This could result in an expansion of USACE authority to allow the beneficial use of dredged material for the conservation of fish and wildlife—for example, by using dredged material to create wetlands or other wildlife habitat.
• Section 709 directed the EPA to "study and monitor the extent and adverse environmental effects of dioxin contamination in the Passaic River-Newark Bay navigation system," with a report back to Congress including recommendations "concerning methods of reducing the effects of such contamination."⁶⁵
• Section 730 directed the secretary of the army to study "current practices on the sharing of costs related to the benefits of increased land values resulting from water resources projects [carried out by the USACE], together with potential methods by which any increase in land values should be shared between the Federal Government and the non-Federal interests."⁶⁶
• Section 904 requires the USACE to display in the benefits and costs of water resource projects "the quality of the total environment, the well-being of other people of the United States, the prevention of loss of life, and the preservation of cultural and historical values. . . ."⁶⁷
• Section 906 authorizes the USACE to carry out "mitigation of fish and wildlife losses, including the acquisition of lands or interests in lands to mitigate [such] losses, as a result of [a water resource] project," with the "first costs" of such enhancements to be a federal cost when the benefits are determined to be national (otherwise, nonfederal interests must pay 25 percent of these first costs).⁶⁸
• Section 907 specifies that, in evaluating the benefits and costs of a water resources project, the benefits attributable to measures included for the purpose of environmental quality enhancement "shall be deemed to be at least equal to the costs of such measures."⁶⁹
• Section 908 establishes an Environmental Protection and Mitigation Fund to pay the federal share of mitigation costs.⁷⁰
• Section 1135 authorizes the secretary to review the operation of completed water resource projects to determine the need for modifications "for the purpose of improving the quality of the environment in the public interest."⁷¹

• Section 1 162 directed the USACE "to remove polluted bottom sediments" from the Miami River and Seybold Canal, Florida, with local interests furnishing all lands, easements, rights-of-way, relocations, and alternations necessary for initial dredging and subsequent maintenance.⁷²

WRDA 1988 contains only a few provisions of interest

• Section 4(n)⁷³ authorizes the USACE to place dredged material from the Gulfport Harbor, Mississippi, navigation project "in accordance with all provisions of Federal law" at various open-water locations, including "thin layer disposal" in the Mississippi Sound of new-construction dredged material as part of a demonstration project. It also directs the USACE to carry out a comprehensive demonstration program "for the purpose of evaluating the costs and benefits of thin layer disposal . . . and for determining whether or not there are unacceptable adverse effects from such disposal." "Thin layer disposal" is defined as "the deliberate placement of a 6- to 12-inch layer of dredged material in a specific bottom area.''
• Section 8⁷⁴ directs the secretary of the army, "whenever feasible, [to] seek to promote long- and short-term cost savings, increased efficiency, reliability, and safety, and improved environmental results through the use of innovative technology in all phases of water resources development projects and programs under the Secretary's jurisdiction." Such measures include encouraging "greater participation by non-Federal project sponsors in the development and implementation of projects." "Innovative technology" is defined as "designs, materials, or methods which the Secretary determines are previously undemonstrated or are too new to be considered standard practice."
• Section 24⁷⁵ amends Section 123 of the Rivers and Harbors Act of 1970 to authorize the USACE "to continue to deposit dredged materials into a contained soil disposal facility constructed under this section [i.e., in the Great Lakes] until the Secretary determines that such facility is no longer needed for such purpose or that such facility is completely full." The USACE is directed to "conduct a study of the materials disposed of in [such CDFs] . . . for the purpose of determining whether or not toxic pollutants are present in such facilities [and their concentrations]." "Toxic

• pollutant" is defined as in CWA Section 301(b)(2) and "such other pollutants as the Secretary, in consultation with the Administrator . . . determines are appropriate based on their effects on human health and the environment."

• Section 312⁷⁶ authorized the USACE, as part of the operation and maintenance of navigation projects, "to remove . . . contaminated sediments . . . outside the boundaries of and adjacent to [a] navigation channel" whenever necessary to meet CWA water quality requirements. The USACE was further authorized to remove contaminated sediments from navigable waters "for the purpose of environmental enhancement and water quality improvement" when requested to do so by a nonfederal sponsor and the sponsor agrees to pay 50 percent of the removal cost. Such removal need not be associated with any navigation project. Disposal costs for all contaminated sediment removal under this section are declared to be a "nonFederal responsibility," and the law in no way affects any party's liability under Superfund (CERCLA).⁷⁷ Although only $10 million annually was appropriated for such purposes, this "environmental dredging" authority represented an important new dimension to the USACE activities.
• Section 306⁷⁸ directed the secretary of the army to "include environmental protection as one of the primary missions of the USACE in planning, designing, constructing, operating, and maintaining water resources projects."
• Section 307⁷⁹ established, as part of the USACE's water resources development program, "an interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation's wetlands, as defined by acreage and function." It also directed the secretary to develop, in consultation with other agencies, a "wetlands action plan" to achieve these goals as soon as possible. The secretary also was authorized, in consultation with the administrator, to "establish and implement a demonstration program for the purpose of determining the feasibility of wetlands restoration, enhancement, and creation. . . ." This provision is relevant because of the role of sediments in projects to restore, enhance, and create wetlands.
• Section 401⁸⁰ authorized the secretary to provide technical, planning, and

• engineering assistance to states and local governments in developing and implementing "remedial action plans for areas of concern in the Great Lakes identified under the Great Lakes Water Quality Agreement of 1978." Nonfederal interests must contribute 50 percent of the costs of such assistance.
• Section 411⁸¹ directed the assistant secretary of the army for civil works, the EPA administrator, and the governor of New York to jointly convene "a management conference for the restoration, conservation, and management of Onondaga Lake, New York" to develop recommendations for priority corrective actions and compliance schedules for cleanup and coordinate implementation of the plan. Administrative services are to be provided by a new not-for-profit corporation, and the USACE and EPA are authorized to provide 70 percent grants to the state for the discharge of its responsibilities under this provision. Among the allowable uses of grant funds is "gathering data and retaining expert consultants in support of litigation undertaken by the State of New York to compel cleanup or obtain cleanup and damage costs from parties responsible for the pollution of Onondaga Lake. . . ." Because Onondaga Lake is the subject of active litigation over natural resource damages under CERCLA, the provision specifies that grants made under this section "shall not relieve from liability any person who would otherwise be liable under Federal or State law for damages, response costs, natural resource damages, restitution, equitable relief, or any other relief."

WRDA 1992⁸² contains numerous provisions dealing with the management of contaminated sediments, the beneficial uses of dredged material, and dredged material management options. This act includes the "National Contaminated Sediment Assessment and Management Act" as Title V of WRDA 1992.⁸³ Some of the most important provisions of Title V are discussed here.

"Contaminated sediment" is defined as aquatic sediment that "contains chemical substances in excess of appropriate geochemical, toxicological or sediment quality criteria⁸⁴ or measures" or "is otherwise considered by [EPA] to pose a threat to human health or the environment." (Section 501(b)(4)).

A National Contaminated Sediment Task Force was to be established and to include representatives of the EPA, the USACE, NOAA, the U.S. Fish and Wildlife Service, U.S. Geological Survey (USGS), U.S. Department of Agriculture; up to three state representatives; up to three representatives of ports, agriculture, and manufacturing; and up to three representatives of public interest organizations. The task force, which was to submit a report to Congress by November 1, 1994, was to review reports on the extent and seriousness of aquatic sediment contamination in the United States; review programs on contaminated sediment restoration methods, practices, and technologies; review the selection of pollutants for the development of aquatic sediment criteria; provide advice on the development of guidelines for contaminated sediment restoration; recommend practices and measures to prevent contamination of aquatic sediments and control sources of sediment contamination; and "review and assess the means and methods for locating and constructing permanent, cost-effective long-term disposal sites for the disposal of dredged material that is not suitable for ocean dumping. . . ."⁸⁵ (Section 502).

The EPA, in consultation with NOAA and the USACE, was directed to "conduct a comprehensive national survey of data regarding aquatic sediment quality in the United States."⁸⁶ The survey was to include a compilation of "all existing information on the quantity, chemical and physical composition, and geographic location of pollutants in aquatic sediment, including the probable source of such pollutants and identification of those sediments which are contaminated .. ." The resulting report to Congress (due by November 1, 1994) was to include "recommendations for actions necessary to prevent contamination of aquatic sediments and to control sources of contamination." (Section 503(a)).⁸⁷

The EPA, in consultation with NOAA and the USACE, was also directed "to conduct a comprehensive and continuing program to assess aquatic sediment quality"—including an assessment of aquatic sediment quality trends over time and the establishment of a clearinghouse for information on technology, methods, and practices available for the remediation, decontamination, and control of sediment contamination. The initial report was due by November 1, 1994, with updated reports due biennially thereafter (Section 503(b)).

The MPRSA was amended in a number of respects. Changes included (1) changes to Section 103(c) requiring EPA concurrence in all USACE permit actions and precluding issuance of an ocean dumping permit by the USACE if the administrator declines to concur; (2) changes to Section 106(d) eliminating federal preemption of the right of states "to adopt or enforce any requirements" with respect to the dumping of materials "into ocean waters within the jurisdiction of the State" (i.e., usually out to the three-mile limit of the territorial seas); (3) changes to the site designation process under Section 102(c), including development by the EPA in conjunction with the USACE of a "site management plan," updated at least every 10 years, for each designated dredged material placement site (must include a monitoring program, special management conditions, "consideration of the quantity of the material to be disposed of at the site, and the presence, nature, and bioavailability of the contaminants in the material," and the anticipated closure date for the site); (4) a prohibition on final designation of a site after January 1, 1995, unless a management plan has been developed for the site; (5) a prohibition on issuing a permit for dumping at a site after January 1, 1997, unless the site has received final designation; (6) for previously designated sites, management plans must be completed no later than January 1, 1997; and (7) elimination of the preexisting practice under Section 103(b) of easy and open-ended ''selection" of dumping sites by the USACE in the absence of EPA-designated sites (USACE selections now can occur only for a maximum of 10 years and only if no feasible placement site has been designated by the EPA; continued use of an alternative site is necessary to maintain navigation and commerce; and continued use of the site does not pose an unacceptable risk to health. aquatic resources, or the environment) (Section 506).

Section 203⁸⁸ authorizes the USACE to "accept contributions of cash, funds, materials and services" from entities other than the project sponsor to assist in

carrying out "a water resources project for environmental protection and restoration or . . . recreation. . . ." This recognizes that third parties may benefit from and be willing to contribute to environmental protection projects.

Section 204⁸⁹ authorizes the USACE to undertake "projects for the protection, restoration, or creation of aquatic and ecologically related habitats" where the "monetary and non-monetary" benefits of the project justify its cost, and the project does not result in environmental degradation. Nonfederal interests must enter into a cooperative agreement to provide 25 percent of the incremental construction cost, "including provision of all lands, easements, rights-of-way, and necessary relocations,'' and 100 percent of "the operation, maintenance, replacement, and rehabilitation costs" associated with the habitat enhancement project. This provision was designed to establish an outlet for the beneficial use of dredged material. The USACE is authorized to spend up to $15 million annually on projects under this section.

Section 207⁹⁰ amends WRDA 1976, Section 145, by authorizing the USACE to enter into agreements directly with political subdivisions (at the request of a state) to use dredged material for beach nourishment. It also encourages the USACE to accommodate the state's schedule for paying its share of the cost.

Section 216⁹¹ directed the USACE to "conduct a study on the need for changes in Federal law and policy with respect to dredged material disposal areas for the construction and maintenance of harbors and inland harbors by the [USACE]." Specifically, this study was to "evaluate the need for any changes in Federal and non-Federal cost sharing for such areas and harbor projects, including sources of funding." A report, with recommendations, was to be submitted to Congress by the spring of 1994.

Section 308⁹² has potential relevance to the Port of Baltimore (addressed in the Hart and Miller islands case history in Appendix C of this report) because of the treatment under Maryland law of all [dredged] "spoil" from Baltimore Harbor as presumptively contaminated. It called for a study of Baltimore Harbor (with a report due by April 1, 1993) by the USACE "for the purpose of developing analytical procedures and criteria for contaminated dredged material in order to distinguish those materials which should be placed in containment sites from those materials which could be used in beneficial projects (such as beach nourishment, shoreline erosion control, island reclamation, and wetlands creation) or which could be placed in open waters without being chemically altered."⁹³ This section

also called for a study (over the same time frame) of "the feasibility and necessity of decontaminating dredged materials [from Baltimore Harbor] and the feasibility of dewatering and recycling [these] dredged materials for use as marketable products"—including examination of "requirements and locations for a processing or staging area, . . . the marketability of potential products, and . . . financial costs." In addition, Section 334⁹⁴ authorized a USACE study "on environmentally beneficial ways to expand or supplement existing placement options and sites serving channel dredging operations of the Port of Baltimore." This study was designed to ''enhance an ongoing [state-federal] long-term management study for the Chesapeake Bay area. . . ." The report to Congress (due by April 1, 1994) was to discuss results, including (1) demonstrated "beneficial uses of dredged materials to enhance public recreational opportunities, increase living resource habitats, and enhance the environmental quality of Chesapeake Bay"; (2) identified "areas for beneficial use placement of dredged materials to enable the Port of Baltimore to continue maintenance dredging until a long-term management study recommends viable alternatives"; and (3) developed "options for beneficial use placement of dredged materials for each site identified. . . ."⁹⁵

Section 316⁹⁶ mandates a study of "the feasibility of establishing a transfer facility at the Leonard Ranch property owned by the Sonoma Land Trust and adjacent to Port Sonoma, Marin, California, for the drying and rehandling of dredged material from San Francisco Bay which is to be transported to a land site for beneficial uses, including lining, capping, and cover material for sanitary landfills, levee maintenance, and restoration of subsided agricultural lands."

Section 326(e)⁹⁷ mandates a study "to identify appropriate remediation techniques (including isolation and treatment) for mitigating dioxin contaminated sediments at their sources." The intent of this provision is "to reduce the problems associated with the dredging and disposal of dioxin contaminated sediments" in New York Harbor and the New York Bight without encumbering or delaying scheduled dredging projects. In addition, Section 405⁹⁸ directed the USACE and EPA, using decontamination technologies identified under WRDA 1990 Section 412(c), to "jointly select removal, pre-treatment, post-treatment, and decontamination technologies for contaminated marine sediments for a decontamination project in the New York/New Jersey Harbor." The EPA and the USACE were, after the selection of technologies, to recommend jointly "a program of selected technologies to assess their effectiveness in rendering sediments acceptable for unrestricted ocean disposal or beneficial reuse, or both " "Decontamination" is

defined broadly to include "local or remote prototype or production and laboratory decontamination technologies, sediment pre-treatment and post-treatment processes, and siting, economic, or other measures necessary to develop a matrix for selection of interim prototype[s] of long-term processes." A technique "need not be preproven in terms of likely success."

Section 327⁹⁹ directs the USACE to "conduct a national study on information that is currently available on contaminated sediments of the surface waters of the United States" and to compile the resulting information "for the purpose of identifying the location and nature of contaminated sediments in the Nation."¹⁰⁰ The resulting report to Congress (due by April 1, 1993) was to include "recommendations for the collection of additional data on the contaminated sediments ..." Section 328¹⁰¹ authorized the USACE to cooperate with nonfederal interests (to the extent of $200,000 per year) "in the completion of a study of contaminated sediments in Milwaukee Harbor, Wisconsin, and surrounding areas."

Section 345¹⁰² required a study on "bank stabilization and marsh creation by construction of a system of retaining dikes and by beneficial use of dredged material along the Calcasieu River Ship Canal, Louisiana, at critical locations." The report was to include recommendations for specific beneficial use measures.

Section 356¹⁰³ directed the USACE (by November 1, 1993), in coordination with the Toledo Port Authority and the Ohio Environmental Protection Agency, to "develop a comprehensive five-year and 20-year sediment management strategy for the Maumee River, Toledo Harbor." This strategy "may include a combination of several sediment disposal alternatives and shall emphasize innovative, environmentally benign alternatives, including reuse and recycling for wetland restoration."

The regulatory context for managing contaminated marine sediments and the potential array of management responses and technology choices is bound up inextricably with the fundamental definition of a "contaminated" marine sediment and the distinction between contaminated and "clean" marine sediments. The Congress has expressed a strong preference in this area for respecting local standards as reflected through two relevant programs: the Section 401 water quality certification process under the CWA and the coastal zone consistency review process through the CZMA.

Section 401(a) of the CWA states that any applicant for a federal license or permit for any activity that may result in a discharge of pollutants to navigable waters must provide certification of compliance with the standards and limitations of the state having jurisdiction at the point of discharge. Although the obvious application of this section is to permits issued under the authority of the CWA, it may also apply to ocean dumping permits issued under the MPRSA (at least for dredged material dumped within a state's territorial waters).¹⁰⁴

Under the CWA, states are authorized to establish water quality standards for waters within their jurisdiction.¹⁰⁵ The geographical reach of that jurisdiction depends on how each state defines the limits of its waters. At the recommendation of the EPA, many states are in the process of rewriting their water quality regulations to include wetlands in the definition of state waters and to establish different standards for wetlands and free-flowing waters. As the definitions of state waters become broader, so does the scope of the resource areas that must be considered in evaluating the compliance of activities contemplated by permits issued under the CWA and MPRSA.

By definition, activities that need a CWA Section 404 permit contemplate a discharge of pollutants into navigable waters, and thus they always require state certification. Section 401 gives states the authority to prevent any federal or private action from proceeding until compliance with state water quality standards can be demonstrated by the permittee or federal agency, including the USACE. Certifying states have the power either to certify permit compliance, to certify with conditions, or to deny certification. If certification is denied, then the USACE cannot issue the permit. A state may take up to a year to make its determination.¹⁰⁶ The water quality certification decisions of a state are subject to judicial review in the courts of the certifying state as a matter of state law.

Section 510 of the CWA allows states to adopt water quality standards that are more stringent than those adopted by the EPA.¹⁰⁷ These two state powers—certification review and water quality standards promulgation—grant the states considerable power to control activities that otherwise would be in the domain of the federal government.¹⁰⁸

More recent laws have shown that the federal-state relationship with respect to this issue continues to evolve. Under MPRSA Section 102(a), no permit may be issued for the dumping of material that will violate "applicable [state] water quality standards." Under WRDA 1992, states are given plenary authority to "adopt or enforce any requirement respecting dumping of materials into ocean waters within the jurisdiction of the State " Although this is subject to certain limitations in the case of federal projects, WRDA 1992 is one indication that the states' jurisdictional status is still evolving.

USACE general regulatory policies also incorporate the requirement that the water quality of affected states be considered. They state that "[a]pplications for permits for activities which may adversely affect the quality of waters of the United States will be evaluated for compliance with applicable effluent limitations and water quality standards. . . ."¹⁰⁹ In its ocean dumping regulations, the EPA also requires that permit applications consider the potential impacts on applicable water quality standards.¹¹⁰ This requirement is based on the EPA's interpretation of its statutory mandate that ocean dumping permit application review must consider the impact of the proposed dumping on "human health and welfare, including economic, aesthetic, and recreational values."¹¹¹

In some instances, a state has refused without explanation to accept the USACE (or a port's) proffered demonstration that a proposed dredged material discharge will not violate applicable water quality standards, declining to either grant or deny the requested water quality certification under CWA Section 401. (Sometimes a state simply requests additional information, without stating why the existing submittal was considered insufficient.) Where a project may be politically unpopular, these techniques can be used by a state as devices for effectively vetoing the project without ever having to articulate any water quality rationale or other technical justification. An example of this was the withholding of

water quality certification by New York state for a proposal to deposit dredged materials into excavated subaqueous pits, followed by capping with clean materials. Regardless of whether this was a case of a state arbitrarily or unjustifiably withholding certification or a matter of the USACE refusing to comply with a legitimate request for additional information, procedural disputes of this type are costly and inefficient. There need to be agreed-on procedures for demonstrating compliance with water quality standards; there needs to be a clearly specified, reasonable time limit for obtaining a "yes" or "no" decision; and certification denials need to have clearly articulated, technically supportable rationales related to water quality.

Section 307(c) of the CZMA was established in 1972 to require, among other things, that federally conducted and regulated activities comply to the "maximum extent practicable" with states' federally approved coastal zone management plans. Any coastal sediments management activity regulated by the USACE or other federal agency must provide a state determination of consistency with the state's federally approved coastal zone plan. Section 307(c) applies to all coastal states and coastal Great Lakes states. Section 307(c) has evolved into a program that regulates activities through the consistency determination process This NOAA-administered program can delay sediment management activities.

The federal agency or applicant provides a determination of consistency to the state coastal zone management agency. The state agency either concurs or objects. In the case of objections, the state must tell the regulated entity what must be done to bring the project into consistency.¹¹²

States have a great degree of latitude in interpreting and administering their coastal zone plans. State coastal zone plans are, by their very nature, general and often vague with few, if any, exact requirements or standards that a federal agency or applicant might use as a basis for determining compliance. As such, the Section 307(c) compliance process is frustrated by state requirements, conditions, and controls that are often difficult to accomplish, procedurally cumbersome, and outside the purview of the federal agency or applicant to accomplish. Unlike proposed development activities for which the consistency determination process can be used as a guide, existing contaminated sediments are already in place, and the CZMA provides no authority for removing the sediments or regulating their management through standards.

Coastal zone plans cover very broad jurisdictional boundaries. The Mississippi

coastal zone encompasses the three coastal counties, regardless of elevation, whereas Alabama uses a contour 15 feet above mean sea level. Florida has determined that the entire state is in the coastal zone.

The federal coastal zone consistency process does not encourage conclusion of review by the state. Thus, the opportunity for delay exists when a state might not support a federal project as part of federally regulated activity. This is illustrated in the proposed Texas coastal plan that directs beneficial use of all dredged material. Endless negotiations by the USACE will take place while attempting to obtain congressional funding to comply with this provision. Managing contaminated sediments while attempting to comply with state coastal zone plans can be perilous, to say the least.

States are not limited in their review. States often perceive that consistency determinations are required for an entire project, when in fact only one segment may be under review by the federal agency. This perception changes the influence of the state over the projects under consideration.

Most often, state consistency requirements are regulatory in nature but are only tied to a broad coastal zone plan. For example, the USACE often is required to obtain CWA Section 401 water quality certification for a dredged material disposal plan. The connection between compliance with numeric state water quality standards and a state coastal zone plan is remote at best. Moreover, without standards for compliance, wide latitude in interpretation can frustrate compliance for sediment management activities from year to year and with each change of state administrations.

Another area in which states exercise local authority over federal agency action and permitting decisions is where an activity causes a seaward extension of the regular low tide mark. The division of ownership of underwater lands was resolved generally by the Submerged Lands Act,¹¹³ which was enacted in 1953. The Submerged Lands Act provided that, barring other particular claims, states had the rights to submerged lands up to three miles from the regular low tide mark, and the federal government held title to submerged lands beyond that point.¹¹⁴

In 1993, however, the U.S. Supreme Court considered the situation in which a state navigation project would cause an accretion of the coastline.¹¹⁵ Under the terms of the Submerged Lands Act, such an extension of the coastline would entail a concomitant extension of the state's title to submerged land. Prior to

issuing a permit to conduct the necessary dredging and filling work, the USACE submitted the permit application to the DOI which objected to the project and recommended that the USACE require the state to waive its right to an extension of its submerged lands.¹¹⁶ The Supreme Court upheld this requirement as a condition to the issuance of the permit, and generally held that in similar situations it was necessary for the federal government to protect its property interests.¹¹⁷

What the court did not consider, but is suggested by implication, is that a state could block a project causing such a coastal accretion by refusing to grant a waiver to its claims of title to additional submerged lands. This was not a likely problem in United States v. Alaska because the project was one pursued by the state itself. In other circumstances, however, it is not unreasonable to suggest that a state could assert its right to additional submerged lands when other means of project opposition, such as water quality certification, have proved unsuccessful.

Another area in which the USACE has relinquished some degree of its authority, and in which its actions and options regarding the management of contaminated marine sediments may be influenced, concerns the applicability of local zoning regulations. The USACE general regulatory policies provide that the primary responsibility for determining zoning and other land use matters rests with the state and local governments and that the USACE generally will accept such decisions. The USACE maintains the authority, however, to ignore local decisions when it finds issues of "overriding national importance." which may include "national security, navigation, national economic development, water quality, preservation of special aquatic areas, including wetlands, with significant interstate importance, and national energy needs."¹¹⁸

When a Section 404 permit application pending before the USACE is denied by local authorities pursuant to zoning regulations, the USACE will consider that denial, and depending on the stage of its own decision on the permit, will take one of three actions: immediately deny the application as against the public interest, deny the application without prejudice to be renewed, or approve the permit application notwithstanding the local zoning conflict.

This final option is only available when the USACE makes a determination that the national interest is at stake, and the USACE permit acts to override a local denial. Without such a determination, the permit applicant must redouble efforts at the local level to gain local permit approval.

One of the most viable beneficial uses applicable to contaminated marine sediments is extending the shoreline as part of near-shore CDFs (as illustrated in the Port of Tacoma project-see Appendix C) or constructing or restoring

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.

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.,

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

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

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).

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

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.

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

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

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

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.

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.