3
Forces Influencing Decision Making

A strategy for managing contaminated sediments needs to address the four challenges outlined in Chapter 1 within the general management process presented in Chapter 2. The committee's assessment of the best way to meet the challenges is organized into four general thematic areas, which provide the structure for the remainder of this report. All four themes require attention in the development of an effective management strategy:

  • regulatory realities
  • stakeholder interests
  • site-specific considerations
  • remediation technologies

These four themes respond generally to the challenges outlined in Chapter 1 (regulatory and legal, political, chemical, and management and technological), although there is not always a one-to-one relationship.1 The themes also come into play repeatedly in the conceptual management process outlined in Chapter 2.

Organization of the report around these four themes was considered necessary for the committee to make a coherent analysis and respond most directly to the statement of task. This chapter examines the first two themes-regulatory realities and stakeholder interests-external forces that are sometimes influential

1  

The regulatory realities theme encompasses both regulatory and legal challenges, whereas the stakeholder interests theme corresponds to political challenges. The last two theme areas are both concerned with chemical challenges. All four themes address management and technological challenges.



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--> 3 Forces Influencing Decision Making A strategy for managing contaminated sediments needs to address the four challenges outlined in Chapter 1 within the general management process presented in Chapter 2. The committee's assessment of the best way to meet the challenges is organized into four general thematic areas, which provide the structure for the remainder of this report. All four themes require attention in the development of an effective management strategy: regulatory realities stakeholder interests site-specific considerations remediation technologies These four themes respond generally to the challenges outlined in Chapter 1 (regulatory and legal, political, chemical, and management and technological), although there is not always a one-to-one relationship.1 The themes also come into play repeatedly in the conceptual management process outlined in Chapter 2. Organization of the report around these four themes was considered necessary for the committee to make a coherent analysis and respond most directly to the statement of task. This chapter examines the first two themes-regulatory realities and stakeholder interests-external forces that are sometimes influential 1   The regulatory realities theme encompasses both regulatory and legal challenges, whereas the stakeholder interests theme corresponds to political challenges. The last two theme areas are both concerned with chemical challenges. All four themes address management and technological challenges.

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--> enough to predetermine or strongly shape decisions. The decision maker has greater leeway in dealing with site-specific considerations (see Chapter 4) and remediation technologies (see Chapter 5). It is apparent that each of the four considerations narrows the choice of management strategies and that failure to consider any of them could undermine the effectiveness of a management plan. In combination, these themes address key aspects of the committee's charge, particularly the tasks of assessing the best management practices and addressing how information about risks, costs, and benefits can be used to guide decision making. The remainder of this report is devoted to an examination of the four essential considerations and an analysis of the issues requiring attention and the opportunities for formal changes that could facilitate the management of contaminated sediments in general. The analysis encompasses many of the lessons learned from the case histories (summarized in Appendix C). The first consideration, regulatory realities, is paramount. The regulatory framework dictates many of the choices facing decision makers, and attention to its nuances can save time and money. As summarized in Chapter 1 and addressed more thoroughly in Appendix B, a confusing array of federal and state statutes govern, and often impede, decision making in contaminated sediment management. For the project proponent to achieve the project objective (e.g., dredging a channel, cleaning up a contaminated body of water), regulatory requirements and constraints must be fully factored into the decision-making process. In some cases, legislative constraints may frustrate the achievement of an optimum balance among risks, costs, and benefits. Consideration of competing stakeholder interests is key to the timely implementation of solutions, which can be delayed for years or even decades if major disputes arise (see Table 1-1). Although many decisions associated with the management of contaminated sediment are driven purely by engineering and fiscal considerations, other aspects of the process are value driven. Remediation endpoints, balancing of various risks, and political acceptability are among the more notable value-driven components of the management process. But these values are rarely absolute. Therefore, it is essential that project proponents involve stakeholders early in the decision-making process to ensure that various viewpoints and concerns can be clarified and consensus building can begin. Project-specific considerations include information-gathering and engineering related to the site in question. These must be handled properly for management efforts to be successful. Project-specific considerations include source control, site characterization, and characterization of the nature and extent of contamination. The key challenge is to determine the types and levels of analysis required—that is, to identify the amount of information and engineering that is both necessary and feasible to support site-specific judgments. Further constraints on possible solutions are imposed by the state of the art in remediation technologies. Given unlimited time and money, any contaminated

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--> sediment site could probably be cleaned up using technologies currently available. But resources are always limited, and treatment technologies—the most effective solutions for eliminating contaminants rather than simply containing them—evolve slowly with time and are very expensive. To make the best of a less-than-ideal situation, therefore, the decision maker must select appropriate, available, and affordable technologies and optimize their effectiveness as part of an overall remediation system or process. REGULATORY REALITIES In examining the regulatory framework from the perspective of the committee's task (which calls for an assessment of best management practices and an examination of how information about risks, costs, and benefits can be used to guide decision making), the committee determined that the current regulatory scheme does not always promote efficient, cost-effective solutions to problems of contaminated sediments. A fundamental flaw is the apparent inability of regulatory agencies to implement mandated procedures designed to ensure that management decisions reflect an appropriate balance of risks, costs, and benefits. (This is a shortcoming of governing statutes and regulations, not a criticism of the regulatory agencies charged with their implementation.) Although the committee focused primarily on scientific and technical issues, it also recognized that the best management approaches cannot be implemented without a supportive regulatory framework. This section examines key limitations of that framework with respect to the evaluation of disposal alternatives, the timeliness of decision making, cost allocation, and the shortage of placement options. The ability of agencies to translate sometimes highly technical data into sediment management decisions is not fostered by the regulatory process. As the capabilities for detecting chemical contaminants increase, the level of detail can also be expected to rise. Unfortunately, understanding how the information can best be used in decision making has not kept pace with advances in science, which will make future decision making even more difficult. Evaluation of Placement Alternatives A lack of coherence is evident in current procedures for evaluating placement and management alternatives. The regulatory process under MPRSA places primary emphasis on the intrinsic toxicity of the constituents of dredged material. The process involves biological testing of dredged material to determine if the material proposed for dumping beyond the baseline of the territorial sea will cause unreasonable degradation or endangerment of the marine environment or human health. However, the procedures do not consider fully site-specific conditions (e.g., proximity to shellfish beds, other sensitive receptors, food-chain carriers, or the containment of contaminants by an engineered clean cap) that may influence

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--> the impact on various organisms.2 An even more rigid approach is used under the London Convention of 1972, which the MPRSA has made binding under U.S. law. This international treaty categorized the acceptability of materials proposed for ocean dumping on the basis of whether the materials contain certain enumerated ''black list" (Annex 1) constituents "other than trace contaminants" or "gray list" (Annex II) constituents that require "special care." Although the rigid MPRSA criteria (i.e., focusing on intrinsic toxicity) may be the safest overall approach from the standpoint of environmental protection, such rigidity can obstruct efforts to reach the best decision in a particular case and can result in the needless waste of resources (e.g., requiring placement on land rather than less costly ocean dumping even when there is no risk-based rationale for prohibiting ocean dumping). The counterpart procedures under the CWA consider chemical and physical as well as biological characteristics in assessing whether the discharge of dredged material will cause unacceptable adverse impacts. Although far from a risk-based process, these procedures at least do not specify absolute pass-fail criteria, and they are geared to the identification of the least environmentally damaging alternative that is also practical. Risk reduction is emphasized under the Superfund remedial action program. Site-specific remedies are chosen based on "exposure assessments" during the feasibility study, and remedial alternatives are identified based on their capability to reduce risks of exposure to an acceptable level. But there are no risk-based cleanup standards for underwater sediments at present. The final selection now involves choosing the most cost-effective alternative. In sum, each set of regulations uses a different approach to assess remedial alternatives, and none considers fully the risk posed by contaminated marine sediments. Although inconsistency alone is not necessarily a major problem, when it is coupled with insufficient attention to risk, it can impede the cost-effective management of contaminated sediments. Cost effectiveness is further impeded by the failure of the MPRSA and Superfund to consider fully the practicality of remedial alternatives, including their economic and technological viability. The CWA does take these issues into account, although, perhaps, it does not emphasize them sufficiently3 Risks need to be considered more fully to ensure that they are not underestimated or overestimated Similar inconsistencies and inattention to risk are evident in the permitting processes for sediment placement. It is currently necessary to secure different 2   As discussed in Chapter 2, risk is a function of both the inherent toxicity of a material (which is evaluated by the MPRSA's biological testing procedures) and the potential of organisms in the receiving environment to be exposed to that material (a factor not directly considered). 3   Under the CWA, practicability is defined as "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes" (40 CFR §230 3[q] and §230 10[a][2]).

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--> types of permits to (1) place sediments in navigation channels or in ocean waters as part of the construction of land or containment facilities (under the RHA and CWA), (2) dump sediments in the open ocean (under the MPRSA and RHA), (3) dispose of sediments in inland waters or wetlands (CWA), and (4) contain contaminated sediments on land where there is no runoff into waters of the United States (RCRA). The regulations also distinguish between sediments removed during navigation dredging (CWA or MPRSA) and sediments excavated for environmental remediation (Superfund). The EPA and USACE, to their credit, have made substantial progress under existing law toward developing and applying parallel procedures in evaluating dredged material under the MPRSA and CWA (EPA and USACE, 1991, 1994), and the EPA has proposed a national strategy for managing contaminated sediments to promote greater consistency in the evaluation and regulation of contaminated sediments with other EPA programs (EPA, 1994).4 However, the diverse statutes under which the EPA and USACE operate often impose different constraints on the ability of regulators to balance overall risks, costs, and benefits. As an example of the anomalies created, the current regulatory regime does not adequately address risk management, focusing instead on the type of activity—removal, containment, or treatment. This misdirected attention can lead to wasted time, energy, and expense, not to mention the possible failure to reduce the risks to human health and the environment. The problem could be overcome, in part, by the development of a consistent or parallel set of risk-based regulatory requirements for evaluating dredged sediments that do not differentiate (absent a compelling technical justification) among inland, estuarine, and ocean placement but do take into account site-specific biological, chemical, and physical conditions that bear on risks to the environment and human health. To be complete, the regulatory scheme must also consider the relationship between environmental and economic costs and benefits. The overall effect of these changes would be to raise the regulatory focus from mechanical details (i.e., the type and location of dredging and disposal) to a higher level: the cost-effective management of risks to human health and the environment. Timeliness of Decision Making Another problem posed by the current regulatory framework is the potential for unnecessary delays. Timely decision making is important to minimizing costs, given that delays can impose both economic and environmental costs. Federal statutes (e.g., the CWA and MPRSA) that involve more than one agency make it difficult, if not impossible, to reform regulatory procedures to facilitate the 4   EPA's draft document describing a strategy for the management of contaminated sediments has been made available for public comment.

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--> administrative process. The regulations, which have evolved over many years, have led to widely varying time frames for decision making. Superfund remedial response can often take many years to identify and implement. Permit decisions under the MPRSA and CWA can be made within a few months of the application when small quantities of uncontaminated dredged material are involved and placement alternatives are identified, but decision making can take many years for larger navigation dredging projects or for projects with complex problems of sediment placement. The Port of New York, for example, recently had to wait more than three years to obtain a maintenance dredging permit. In the meantime, for various reasons, such as increasing technical demands, the cost of the dredging project rose from $1 million to $17 million (Maritime Administration, 1994). One problem is the multiplicity of federal and state regulatory and resource agencies involved in the management of dredged sediments. Another problem is that the USACE, as lead agency, is confronted with difficult decisions when the placement of contaminated sediment is controversial and stakeholders have been unable to arrive at a clear consensus. A federal interagency working group, under the auspices of the Maritime Administration, recently recommended a series of steps to improve the timeliness of decisions concerning dredging permits (Interagency Working Group on the Dredging Process, 1994). A National Dredging Team composed of seven federal agencies was formed to implement the recommendations of the 1994 interagency report and to serve as a forum for resolving dredging issues. Regulatory reform initiatives pending in the U.S. Congress range from broad-based reforms to specific reforms to realign or consolidate permitting authority under the CWA. Timely decision making can be facilitated by interpreting regulations based on the intent of the underlying statute(s). The EPA has shown a willingness, on occasion, to be flexible, within legal constraints, in the application of regulations. This was demonstrated in the Port of Tacoma case history, where CWA restrictions on avoidable discharges of dredged material were interpreted in such a way that implementation of an innovative (and ultimately successful) cleanup plan was permitted. 5 This enabled the port to implement a creative solution, which simultaneously enabled a stalled navigation dredging project to move forward, an 5   Section 404 of the CWA prohibits the deposition of dredged materials in wetlands, mudflats, or other "special aquatic sites" unless there is no practical alternative judged to be less environmentally damaging. In the Port of Tacoma case, the EPA expressed a preference for near-shore disposal only "in conjunction with projects that otherwise would be permitted as commercial development" (which otherwise would be permissible and would require separate fill projects). This approach enabled the EPA to approve the Tacoma project as one that minimized physical impacts to the near-shore environment by averting filling solely for the purpose of sediment disposal. In addition, while focusing on the objectives and intent of the CWA and Superfund, the EPA and USACE were flexible in interpreting the decision-making criteria, determining that there were no "more environmentally suitable'' (as opposed to "less environmentally damaging") alternatives.

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--> intractable Superfund problem to be resolved, and some prime waterfront acreage to be gained by the port. But this commendable focus on underlying objectives is discouraged rather than promoted by the current regulatory framework, which, as demonstrated by the examples given earlier in this section, tends to specify rigid criteria and procedures. One way to promote the achievement of objectives is to emphasize risk-based end-points rather than specific processes. The development of site-specific, environmentally acceptable end-points may provide risk-based performance standards. In the meantime, flexible interpretations of the regulations may be helpful. Cost Allocation Cost allocation is another area in which regulations may hinder efficient decision making. One potentially counterproductive situation is created under the WRDA (Water Resources Development Act) of 1986 (§101 and §102 [P.L. 99-662]), which requires local sponsors of federal navigation projects to bear full responsibility for the construction, operation, and maintenance of dredged material disposal sites on land. This provision creates a bifurcated approach to cost sharing, in that the federal government pays for most (usually 75 percent6 of) new-work dredging and, with the help of a trust fund that collects user fees, all maintenance dredging. But the government does not pay for the costs of sediment placement on land. The project cooperation agreement also creates two unfortunate incentives. First, because the project sponsor must pay for disposal on land (whereas placement in open water is "free") a strong preference is created for placement in open water, whether or not it is in society's (or the environment's) best interest. Second, an approach that places the full cost of land-based placement on the project sponsor creates little incentive for the sponsor to seek out opportunities for the beneficial use of sediment, which usually add to the project cost and may benefit a party other than the proponent. (Beneficial uses are discussed later in this chapter.) Cost allocations for dredging are also inconsistent. Ports are not required to share directly in the costs of maintenance dredging, but federal requirements under WRDA 1986 compel local sponsors to share in the costs of new-work dredging, with the percentage depending on channel depth. This distinction between the two types of dredging may not be justified economically Although this complex issue exceeds the scope of the committee's analysis, it could be addressed separately. In any case, problems with the cost allocation scheme for sediment placement must be addressed. To ensure that decisions are not distorted by ill- 6   Costs of new-work dredging are shared by local sponsors and the federal government, and the cost-sharing percentage is based on channel depth. In most cases, the federal share ends up being 75 percent.

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--> conceived or unjustified cost burdens, it may make sense to develop equitable cost-sharing formulas for all the dredging and disposal elements of federal projects. At the same time, it would be helpful if consistent approaches to cost-benefit analysis were applied. Currently, an elaborate system of weighing costs and benefits must be used for new-work dredging. Cost-benefit analysis for maintenance dredging is applied inconsistently, and alternatives for the placement of dredged material are initially based on compliance with environmental regulations in which cost is one factor in decision making (see Chapter 2 ). Issues of cost need to be addressed systematically because an inconsistent or incomplete consideration of costs can encourage an irrational allocation of scarce resources. Shortage of Placement Space Even if the changes outlined above were made, there would still be the problem of limited placement space for contaminated dredged materials, an issue that defies easy answers.7 Large coastal ports, as well as owners of marine terminals and small private berths, are finding it increasingly difficult to find space for the placement of sediments unsuitable for open-water disposal. Although the development of risk-based strategies for regulating the placement of contaminants in dredged material may reduce the quantity of material requiring land-based management, local ports and other private dredging proponents will always be faced with a shortage of placement sites on land. Constraints include dwindling open space, the logistics of transportation and other handling issues, and public opposition to the placement of contaminated materials near populated areas. Whatever the reasons, capacity shortfalls could limit dredging and have significant negative socioeconomic consequences at the local, regional, and even national level. Given the national interest in achieving and maintaining adequate dredging depths at certain key ports, it may be counterproductive to place the entire burden of finding and funding land-based placement sites for dredged material on local interests. If these responsibilities were federalized, however, then resource limitations would prevent immediate attention to all needs. Efforts to prioritize coastal ports in terms of their strategic or economic importance would be politically perilous. Given the diminishing availability of federal funds for public works projects and the movement to shift responsibilities to the states, it has been convenient to 7   The U.S. Congress recognized as early as 1971 that the acquisition of suitable disposal areas for the significant quantities of materials dredged in the course of the nation's navigation projects was a significant problem. Efforts were made to address the problem in several areas of the country. A program was established to construct land placement areas for Great Lakes projects. The Port of Baltimore embarked on a plan to build an upland disposal area for sediments from Baltimore Harbor channels. And the USACE began de eloping a comprehensive plan for extending the useful life of the Craney Island disposal area established in 1954 to service Norfolk Harbor channels.

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--> avoid addressing the growing need for federal involvement in locating and funding containment facilities for dredged material. The committee can offer no easy answers to this problem. A partial solution may be provided, however, by the trend toward the development of dredged material management plans (DMMPs). The USACE policy on DMMPs was established recently in Engineer Circular 1165-2-200. USACE regulations require that all navigation, federal harbor, and inland waterways projects have DMMPs that satisfy long-term needs for the management of dredged material. The objective is to establish project-specific plans (longer than 10 years) for the placement or management of dredged material consistent with applicable laws and policies. The regulations make provisions for the local requirements of ports and harbors. DMMPs are to be carried out in cooperation with project sponsors, local governments, port authorities, and other project users and beneficiaries. The regulations encourage beneficial uses of dredged material and outline the procedural requirements for managing certain dredged materials authorized by recent versions of the WRDA. The regulations do not address the management of contaminated sediments in detail, but DMMPs can include consideration of technologies for the treatment and management of contaminated sediments. The National Dredging Team soon will issue parallel guidelines for the development of long-term DMMPs that will complement the USACE regulations and directly involve the federal and state agencies serving on the regional dredging teams. STAKEHOLDER INTERESTS Contaminated sediments are not managed in a political or social vacuum. Most contaminated marine sediment sites are located in highly populated areas. The location of these sites virtually ensures that project proponents must contend not only with complicated ecological situations and difficult technical problems but also with complex political circumstances involving multiple resource users and interest groups. The selection of ex situ disposal or containment sites usually affects stakeholders. As a result, successful management of any contaminated sediments problem must respond to all dimensions of the problem: ecological, technical, and political. This chapter examines the strategic and diplomatic skills required of project proponents and the tools available to them. The committee gained considerable insight into these issues through the case histories (see Appendix C). Stakeholder Groups The stakeholder groups that need to be considered for possible inclusion in a the decision-making process are diverse, although they often have common interests, such as economic or environmental concerns. Stakeholder groups include local communities, which could be exposed to contamination either in the sediments or at a placement site or which could depend on a contaminating

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--> industry for employment. The stakeholders might also include communities that are dependent on fisheries where contaminated sediment is found in a critical habitat or along a migratory pathway. Local industries and ports also have an interest in sediment management because the regional economy may depend on a water transportation system for shipping manufactured goods; an attractive environment; or abundant stocks of healthy, edible fish or shellfish to support commercial and recreational fisheries. Riparian landowners have a stake in nearby dredging and disposal activities. An important general category of stakeholders encompasses environmental and other public interest groups, whose concerns can vary widely. One group may focus narrowly on a local issue, another might take a regional perspective on growth and development, and a third might have a global environmental agenda and be targeting local entities, such as companies that make pesticides or refine hydrocarbons into fuels. Some groups have specific interests in one ecosystem component, such as endangered species, migratory birds, or non-native organisms. As more citizens become aware of and are educated in marine and coastal issues and seek to participate in decisions to allocate resources, the list of stakeholders grows. Although these diverse interest groups initially may hold widely varying positions on contaminated sediment issues, including being wholly misinformed about the range of management issues, they must all be considered to ensure public acceptance, expedite action, and maximize prospects for long-term success. Phases of Involvement Chances for successful site management are enhanced if stakeholder involvement begins early and continues throughout the decision-making process. The design of the decision-making process and the initial efforts to develop that design are key avenues for injecting stakeholder values—whether based on economic self-interest or a more elusive "public" or "community" interest—into the development of a mutually acceptable solution. The Port of Tacoma case history demonstrates the benefits of bringing all stakeholders into the process from the start and forging a collective solution. As stakeholders participate in management processes and are exposed to the full spectrum of facts and viewpoints, their values evolve, not only throughout the decision-making process but also, perhaps more critically, during project implementation. It is especially important that stakeholders be involved in the identification and selection of management strategies and the concomitant weighing of risks, costs, and benefits. Major disagreements concerning the management approach need to be resolved at this stage to ensure that the chosen solution can be implemented without lawsuits or other delays. Dispute resolution is discussed in the following section.

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--> Consensus Building Early stakeholder involvement permits the various parties to feel included in the process, acquire mutual trust, and gain an in-depth understanding of the problem. These elements foster the development of a consensus, which is critical to the timely implementation of solutions. In the Port of Tacoma case, agreement between the EPA and the port helped satisfy regulatory, environmental, and local economic concerns and led to a successful outcome. Conversely, the absence of early cooperation among stakeholders was partly responsible for delays in the Boston Harbor and Hart-Miller Islands case histories. In the latter case, an attempt to rush the project through without identifying and resolving the controversy led to a legal challenge and inordinate delays. The case histories also indicate that successful consensus building depends on the emergence of a strong project proponent who is willing to assume responsibility for advocating key objectives, integrating the various processes, and resolving whatever conflicts arise. Early involvement of stakeholders cannot guarantee success. Increasingly, contaminated sediments are being managed in complex, changing social and political settings marked by the emergence of nontraditional stakeholders. Conflicts are virtually inevitable in this context regardless of the quality of the decision and, when conflicts arise, they must be addressed directly through an appropriate conflict or dispute resolution approach. Professionals in resulting disputes helped stakeholders reach agreement in the Boston Harbor case. A variety of decision-making approaches has emerged in recent years that can be used to help resolve disputes or conflicts. The simplest method is to bring stakeholders together for a frank, constructive discussion. Other approaches include mediation, negotiated rule making, and collaborative problem solving. Another approach that may help indirectly is decision analysis (a concept introduced in Chapter 2 and described in detail in Appendix E), which, when used appropriately to estimate the outcomes of particular management strategies, can provide insights that could help foster consensus. Each of these approaches has a place in the arsenal of techniques for improving the prospects for a politically acceptable, implementable decision. A detailed analysis of these techniques is beyond the scope of this report, but the key aspects are summarized below. Whether carried out in the context of mediation, arbitration, or collaborative problem solving, fostering a consensus on a management process among all interested or potential stakeholders involves more than simply going through the mechanics of communicating with all parties. The case histories underline the paramount importance of developing positive working relationships that improve the chances of accommodating or resolving conflicts. The process thus requires not only knowledge and mastery of methodologies for building consensus but also interpersonal skills in establishing positive human relationships. The literature on conflict resolution stresses that the handling of threshold questions is as central to success as the substantive outputs from the process

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--> itself. Threshold questions include who should be at the table, who should represent whom, how the interests of important stakeholders who do not come forward should be determined, how a common constructive definition of the problem(s) is to be developed, and how a mutually acceptable decision-making process is to be chosen. There is a significant body of literature on dispute or conflict resolution. Carpenter and Kennedy (1988) provide lay readers with an extended discussion of the mechanics of a powerful dispute resolution program, many examples of public dispute resolution, and a detailed bibliography (see also Singer, 1990). Conflict resolution techniques have been used in some contaminated sediment cases, but the frictions that continue to plague and delay some projects indicate that they could be used much more. Federal agencies are authorized and encouraged to engage in alternative dispute resolution techniques by the Administrative Dispute Resolution Act of 1990 (P.L. 101-552). The USACE has developed guidelines for using these techniques to resolve contract disputes but has not formalized their use in contaminated sediments situations. The EPA frequently uses formal dispute resolution techniques, both in developing regulations and in dealing with specific Superfund projects. While seeking to resolve disputes, it is important to remember that consensus building takes time, and time is always limited. Moreover, projects cannot be designed based on lowest-common-denominator choices. Often stakeholders are unwilling or unable to move beyond a certain point—because of deeply held principles, rigid legal restrictions, or budgetary limitations. In these cases, decisions must be made, even if disagreements remain. Risk Communication The management of contaminated sediments requires the active participation of diverse stakeholders from the onset of the decision-making process, even though conflicts are virtually unavoidable and, therefore, must be addressed directly. To ensure that a specific management alternative satisfies the concerns of all parties and can be implemented without unnecessary confrontations among stakeholders, they must be convinced to "buy in" to the credibility of the process in place, particularly with respect to the following issues: that corrective action will attain at least minimum acceptable risk levels; that proven methods for managing residual risks will be used; and that a process is in place for balancing risks, costs, and benefits in strategy selection and implementation. Stakeholder buy-in can be fostered through risk communication, which is an integral part of risk management. Risk communication is defined as the exchange of information and opinions about risks among concerned individuals, groups, and institutions (NRC, 1989). As discussed in Chapter 2, interaction between the risk assessor and the risk manager is one aspect of risk communication; stakeholders become involved at the next level of the process, when the risk manager

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--> communicates with the public (USACE, 1991). Through effective risk communication, stakeholders' understanding of project-specific issues can be improved substantially and may result in a consensus on the choice of a specific course of action. Risk communication, coupled with an orderly planning framework (as described in Chapter 2), can enhance and expedite the decision-making process. Through risk communication, factual and subjective information can be organized, evaluated, and communicated to stakeholders so that they become vested in the management process. Beneficial Uses Dredged sediments traditionally have been viewed as waste. However, dredged material is often used for beneficial purposes—fill for urban development (such as the construction of National Airport in Washington, D.C.), for beach nourishment, for the creation of wetlands and wildlife habitat, for improving farmland, as fill for general construction, and for establishing coastal islands where many species of seabirds nest (NRC, 1992). Dredged material can also be used as cover for sanitary landfills, caps for more-contaminated materials, and bases for underwater berms and breakwaters. These and other projects have helped meet the growing demand for placement sites for dredged material and have yielded economic and environmental benefits as well. The statutory underpinning for the beneficial use of dredged material is provided by WRDA 1992 (P.L. 102-580), which contains provisions for using dredged material for such things as the protection, restoration, and creation of aquatic habitat. Most of the sediments put into beneficial use have been "clean," but contaminated dredged materials can also be reused safely. The most straightforward method is to isolate the contaminated materials from the surrounding environment. For example, contaminated dredged material can be placed in the interior of a diked containment facility, which can then be capped with clean materials. This approach was used in the Hart-Miller Islands project, where the containment facility was used as the foundation for a recreation area. Similarly, in the Port of Tacoma project, two-thirds of a secondary channel was filled with dredged material (much of it contaminated) to create 24 acres of land for the expansion of a marine container terminal and for habitat restoration. Research has shown that some contaminated materials can be reused safely without being completely isolated from the surrounding environment, as long as the site is managed properly. Heavy-metal-contaminated dredged material from Black Rock Harbor, Connecticut, was used to create a wetland, which was gradually covered with dense vegetation. Tests on plant tissue and local snails revealed levels of heavy-metal concentrations similar to the level in the surrounding region (Francingues et al., 1996). A 46-acre CDF at Times Beach, New York,

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--> partially filled with contaminated dredged material in the early 1970s, was rapidly colonized by plants, animals, and birds and was designated as a nature preserve (Stafford et al., 1991). Numerous studies have been conducted on the fate of the heavy metals and organic contaminants at the site, yielding data that can be used to improve CDF management in general (Stafford et al., 1991, and references therein). In another example, contaminated dredged material from the Calumet River was used to restore an acid coal mine tailing area at Ottawa, Illinois, in 1978. Three feet of dredged material was placed on top of the mine tailings (which had a pH of 3.0) to correct the acid runoff problem and allow vegetation to stabilize the restored site. Agricultural crops were grown on the dredged material that were of equal quality and yield with crops on surrounding farms. Beneficial uses of contaminated dredged material are, however, comparatively rare. The reasons for this are not entirely clear but probably include public resistance (or the fear of public resistance) to the reuse of contaminated materials; the USACE policy of pursuing the lowest-cost environmentally acceptable dredged material placement alternative (33 CFR §335.7); and the recognition that the benefits of reuse often accrue to third parties, whereas the added costs must generally be borne by the project sponsor. The cost issue has been particularly contentious. Ports and the USACE have favored assigning the incremental costs of beneficial uses to the beneficiary, whereas states have tried to compel the USACE to bear the costs by requiring beneficial uses under the authority of the CZMA (Coastal Zone Management Act) (Maritime Administration, 1994). Conflicts like these have delayed projects and driven up costs (Maritime Administration, 1994). Nevertheless, there are sound reasons for encouraging the beneficial use of contaminated sediments, particularly at this time. First, beneficial use can improve the cost-benefit outlook for managing dredged material (see Chapter 2 and Appendix D) because it not only eliminates the need for costly conventional placement (typically far more expensive for contaminated than for clean sediments), but it also can provide economic benefits. Second, if properly handled, beneficial uses can foster public and political support for otherwise objectionable plans for the placement of dredged material, as demonstrated by the Port of Tacoma project, which is generally viewed as having been beneficial both to the port and to the environment. Third, new EPA regulations (40 CFR §503 [1994]) that promote the reuse of sewage sludge by significantly increasing permissible levels of most contaminants are being used by the USACE to evaluate data on, and the reuse of, dredged material (C.R. Lee, USACE, personal communication to Marine Board staff, December 15, 1995). Although there are no guidelines for the reuse of contaminated sediments, limited research, prompted by the shortage of storage space for dredged material and the new EPA regulations, is under way on the safe, beneficial use of contaminated material. Over the past few years, the USACE has been working on a variety of projects with industry and universities using dredged material with various

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--> levels of contamination. One project, for example, is "manufactured" soil. Another project has focused on whether silt can be replaced with lightly contaminated dredged material from a CDF (in Toledo, Ohio) to compensate for a short-age of silt, which is normally combined with peat and organic yard waste to make topsoil (C.R. Lee, USACE, personal communication to Marine Board staff, December 15, 1995). The Toledo material already has been used to make landfill cover (in a ratio of 90 percent sediments, 8 percent sewage sludge, and 2 percent lime to fix metals). Another set of projects with the USACE New York District is evaluating the use of more highly contaminated sediments as well as post-treatment residues for use as soil, road aggregates, and building blocks (C.R. Lee, USACE, personal communication to Marine Board staff, December 15, 1995). Although this research is promising, funding is limited. A new USACE five-year Dredging Operations Environmental Research program, focusing specifically on the management and reuse of contaminated materials, has been proposed but has not been funded.8 Several steps could be taken to promote the beneficial use of contaminated dredged material. First, the economic and social acceptability of beneficial uses are likely to be greatest if these alternatives are considered as part of a generally accepted package of solutions, rather than as one-shot experiments. This is one of the potential advantages of long-term management planning—including long-term permitting—for ports (Interagency Working Group on the Dredging Process, 1994), an approach the USACE is adopting. At the same time, economic incentives could be created if federal policies were modified (or existing policies implemented) to encourage the beneficial use of contaminated dredged material, even if beneficial uses are more expensive than the lowest-cost, environmentally acceptable placement. Either the requirement to use the lowest-cost alternative could be waived for alternatives that include beneficial uses (difficult during a period of fiscal austerity) or the USACE could modify the way it computes initial costs by treating the economic benefits of beneficial uses (including elimination of the need for other placement sites) as cost offsets. Over the long term, the advantages of such approaches could outweigh the additional costs associated with the implementation of beneficial uses.9 Second, research on the beneficial uses of contaminated dredged material seems particularly timely, given the growing need for cost-effective placement 8   The New York District work includes cooperative research and development agreements (CRADAs) with several private companies but has a limited budget, and the Toledo project has an even smaller budget Much of the funding is spent on chemical analyses. Under CRADAs, companies provide materials (such as organic waste materials), the local USACE district office supplies the dredged material and the funding, and the USACE Waterways Experiment Station in Vicksburg, Mississippi, conducts the tests and evaluations of various mixtures of materials. The rules for CRADAs allow companies to provide funding (63 USC 15 §3710a[dl] and U S Army Regulation 70-57), but no private dollars have been provided to date for research on the reuse of contaminated dredged material.

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--> alternatives and the promising results of research. Although a detailed analysis of funding is beyond the scope of the present report, there would seem to be a persuasive argument at least to continue, if not expand, current research efforts. Off-Site Mitigation Political tensions can be compounded by the reality that no contaminated sediment management strategy can be 100 percent successful It is not possible to remove all contamination from a site, to dredge a channel without causing peripheral impacts, or to guarantee that a suitable placement area can be found without causing dislocations. Lost value or unavoidable impacts may be offset, however, through off-site mitigation, which involves providing alternative resources to injured parties. In the Waukegan Harbor case history, for example, the containment area selected for the contaminated sediments was occupied by a recreational marina. Public objections to the loss of recreational waterfront were relieved when the marina was relocated to a site donated by the company responsible for the contamination. In this way, the public was compensated for dislocations caused by the sediment placement strategy. The mitigation approach could be used just as easily to offset incomplete remediation. Some areas beset with chronic, widespread contamination are unsalvageable; natural functions may be ''restored" (i.e., to a degree deemed adequate) over a very long period of time--or not at all. In such cases, the environment could be "made whole" through the establishment and preservation of an area of comparable or greater value at another location. This is a long and complex process, however. Because the development of a properly functioning ecological habitat is an imperfect science, the process is often carried out by trial and error, and it may take decades. More than one acre of replacement habitat (e.g., in 9   Several provisions of WRDA 1986, 1990, and 1992 take steps in this direction, although they do not address the issue of contaminated sediments specifically, and they are seldom used. For example, Section 145 of WRDA 1976, as amended by Section 207 of WRDA 1992, authorizes the USACE to enter into agreements with states or localities to use dredged material for beach nourishment. This section does not address the funding issue, and it applies only to beach-quality sand. Section 907 of WRDA 1986 deems "environmental quality enhancement" benefits to be at least equal to costs in the cost-benefit ratio comparison. This provision applies only to new-work dredging projects when cost-benefit ratios are used. Section 906 of WRDA 1986 provides authority to mitigate fish and wildlife losses resulting from a water resource project at 100 percent federal "first costs," when the benefits are national, or at 75 percent, when they are more localized. This provision is limited to mitigating damages caused by the project. And Section 204 of WRDA 1992 authorizes the USACE to undertake projects (usually at 75 percent federal funding) for the protection, restoration, or creation of aquatic and ecologically related habitats, when justified by the "monetary and non-monetary" benefits. This section is limited to discrete projects with specified beneficial use objectives, thus, navigation dredging projects would not normally qualify

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--> wetlands for example) is typically required to offset an acre's worth of environmental damage (NRC, 1994). Newly established habitats must be monitored for a prolonged period to ensure that the desired ecological functions have been restored. Fall-back measures must be developed in case initial efforts are unsuccessful, and appropriate legal safeguards must be established to ensure that mitigation measures cannot be undone and that newly created areas are not contaminated or disturbed in the future. SUMMARY A number of important findings emerged from the committee's analysis of the regulatory framework for the management of contaminated sediments and the many issues related to stakeholder interests. It is clear that certain aspects of current laws and regulations may impede the cost-effective management of contaminated sediments. The committee identified three areas in which improvements are both warranted and possible. First, laws and regulations tend to emphasize mechanics rather than balancing risks, costs, and benefits. None of the three laws (MPRSA, CWA, and Superfund) governing the evaluation of remedial alternatives explicitly considers either the risks posed by contaminated marine sediments or the costs and benefits (i.e., economic risks and technical viability) of the possible solutions. Similarly, permitting processes for sediment placement focus on the location of the placement site and the reason for the dredging rather than on the risk posed by the contamination. In the committee's view, more consideration needs to be given in the regulatory process to risk. Second, timely decision making and the implementation of cost-effective solutions may be impeded by too much reliance on procedures without regard for the intent of statutes. An objectives-based interpretation of regulations focusing on the underlying intent of the statute(s) may foster the implementation of the best management practices and creative solutions to difficult problems. Third, regulations governing cost allocation and cost-benefit analysis for dredging and placement projects may foster unsound allocations of scarce resources. The federal government pays for most new-work dredging and all maintenance dredging, but the costs of sediment disposal are borne by the local sponsor, a requirement that creates a strong preference for open-water disposal and a disincentive to beneficial use. Furthermore, although costs and benefits must be weighed carefully for new-work dredging, similar cost-benefit analyses are not required for either maintenance dredging or dredged material placement. There is also room for improvement in how project proponents interact with stakeholders. Failure to identify all important stakeholders early in the decision-making process and to build consensus among stakeholders can cause significant delays and even block the implementation of solutions. The development of consensus can be fostered by various consensus-building tools, including mediation,

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--> negotiated rule making, collaborative problem solving, and effective risk communication. The beneficial reuse of contaminated sediments is attractive because it provides alternatives to increasingly scarce disposal sites and makes management plans more attractive, or at least palatable, to stakeholders. Some contaminated sites have been successfully transformed into wetlands, and productive research is under way on the safe use of contaminated sediments for various purposes. However, funding for this type of research is limited. Another barrier to beneficial reuse is the USACE emphasis on the selection of lowest-cost solutions with little regard to the monetary and non-monetary advantages of beneficial reuse. REFERENCES Carpenter, S.L. and W.J.D. Kennedy. 1988. Managing Public Disputes A Practical Guide to Handling Conflicts and Reaching Agreements. San Francisco, California: Jossey-Bass. Environmental Protection Agency (EPA). 1994. EPA's Contaminated Sediments Management Strategy. Draft EPA 823-R-94-001. Washington, D.C.: EPA Office of Water. EPA and USACE. 1991. Evaluation of Dredged Material Proposed for Ocean Disposal Testing Manual. EPA-503/8/91/001. Washington, D.C. EPA Office of Water and USACE. EPA and USACE. 1994. Evaluation of Dredged Material Proposed for Discharge in Waters of the U.S. Testing Manual. Draft EPA 823-B-94-002. Washington, D.C.: EPA and USACE. Francingues, N.R., Jr., A. Brambatl, H. De Vlieger, V. Haviar, Y. Hosokawa, H. Koethe, H.P. Laboyrie, E. Paipai, E. Van den Eede, C. Wardlaw, and W. Willemsen. 1996. Handling and Treatment of Contaminated Dredged Material from Ports and Inland Waterways-CDM, vol. 1, PTC 1, Report of Working Group No. 17, Supplement to Bulletin No. 89. Brussels, Belgium: PIANC General Secretariat. Interagency Working Group on the Dredging Process. 1994. The Dredging Process in the United States: An Action Plan for Improvement. Report to the Secretary of Transportation . Washington, D.C.: Maritime Administration. Maritime Administration. 1994. A Report to Congress on the Status of the Public Ports of the United States, 1992-1993. MARAD Office of Ports and Domestic Shipping. Washington, D.C.: U.S. Department of Transportation. National Research Council (NRC). 1989. Improving Risk Communication. Washington, D.C.: National Academy Press. NRC. 1992. Restoration of Aquatic Ecosystems Science, Technology, and Public Policy. Washington, D.C.: National Academy Press. NRC. 1994. Restoring and Protecting Marine Habitat: The Role of Engineering and Technology. Washington, D.C.: National Academy Press. Singer, L.R. 1990. Settling Disputes. Boulder, Colorado: Westview Press. Stafford, E.A. J.W. Simmers. R.G. Rhett, and C.P. Brown. 1991. Interim Report: Collation and Interpretation of Data for Times Beach Confined Disposal Facility, Buffalo, New York. Long-Term Effects of Dredging Operations Program Miscellaneous Paper D-91-17. Vicksburg, Mississippi: U.S. Army Engineer Waterways Experiment Station. U.S. Army Corps of Engineers (USACE). 1991. Risk Assessment An Overview of the Process Environmental Effects of Dredging Technical Notes EEDP-06-15. Vicksburg, Mississippi: U.S. Army Engineer Waterways Experiment Station.