Contaminated Sediments in Ports and Waterways Cleanup Strategies and Technologies (1997) / Chapter Skim
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Appendix B: Regulatory Framework for the Management and Remediation of Contaminated Marine Sediments
Appendix B: Regulatory Framework for the Management and Remediation of Contaminated Marine Sediments
Pages 181-224
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From page 181... ...
that relate to beneficial uses of dredged material are discussed because beneficial uses are among the management options available for contaminated sediments -- despite their more common application in connection with clean sediments. Similarly, this appendix describes the navigation dredging cost-sharing provisions of these acts, even though the provisions do not typically differentiate between contaminated and uncontaminated dredged materials.
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From page 182... ...
, 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.
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,4 WRDA) , water quality improvement (CWA)
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; (5) state regulatory authorities (CWA Section 401 and CZMA consistency provisions)
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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.
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1995) , held that neither part of this exclusion would allow post-disposal "capping" of dioxincontaminated sediments to overcome bioassay results showing toxicity in excess of "trace contaminant" levels.
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From page 187... ...
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.
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From page 188... ...
The hazard ranking system was amended by Congress in 1986 (SARA, Section 105) to require, for the first time, consideration as a distinct exposure pathway of "the damage to natural resources which may affect the human food chain." Revisions to the hazard ranking system now require consideration of both the water column and contaminated sediments and provide, for the first time, for the placement of a site on the NPL based on environmental contamination as well as human health impacts.
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• 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.
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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.
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1991. Contaminated Sediments: Relevant Statutes and EPA Program Activities, EPA 506/6-90-003.
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CWA Section 303 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.
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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 34 Recent court cases may be of interest to ports or others looking for a legal mechanism to force cleanup of sources. Alaska Center for the Environment v.
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, this section is of indirect relevance to the problem of contaminated sediments and toxic hot spots. CWA Section 319 CWA Section 319 (nonpoint-source pollution)
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In terms of contaminated sediments, one of the major limitations of this program is that it has 40 A recent EPA background report (EPA.
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contaminating bottom sediments of the Hudson River) 47; and Long Island Sound (management study to address issues including "contaminated sediments and dredging activities")
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These issues include cost-sharing for navigation projects and incentives for the beneficial use of dredged material. WRDA 1986 WRDA 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.
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From page 198... ...
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.
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From page 199... ...
4650. This plan was to include a discussion of potential alternative placement sites, including the feasibility of altering the boundaries of the Mud Dump; measures to reduce the quantities of dredged material proposed for ocean dumping; and measures to reduce the amount of contaminants in materials proposed to be dredged from the harbor through source controls and decontamination technology.
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• Section 709 directed the EPA to "study and monitor the extent and ad verse environmental effects of dioxin contamination in the Passaic River Newark Bay navigation system," with a report back to Congress includ ing 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.
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seek to promote long- and short-term cost savings, increased efficiency, reli ability, 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 spon sors in the development and implementation of projects." "Innovative technology" is defined as "designs, materials, or methods which the Sec retary 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]
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From page 202... ...
navigation channel" when ever 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.
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From page 203... ...
. ." 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 liabil ity any person who would otherwise be liable under Federal or State law for damages, response costs, natural resource damages, restitution, equi table relief, or any other relief." WRDA 1992 WRDA 199282 contains numerous provisions dealing with the management of contaminated sediments, the beneficial uses of dredged material, and dredged material management options.
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From page 204... ...
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.
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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)
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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]
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From page 207... ...
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.
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, 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." STATE REGULATORY PROGRAMS 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.
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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.
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From page 210... ...
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.)
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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. Coastal Zone Consistency Review Section 307(c)
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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.
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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.
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. 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.
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; no permit or condition of waters required when material navigable waters is placed to construct an artificial island when otherwise regulated by federal or state law 3. Ocean dumping Section 401: State Section 103: Permit See 2.C Not applicable (but Not applicable (but Section 401: State of dredged material water quality certifica- required from USACE see footnote b)
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From page 216... ...
includes a regulated resource damage pending RCRA rule wetland restoration could be would exempt from required under the possibility of CERCLA -- unless the RCRA regulation for specific contaminants on-land dredged were authorized under material containment a federal permit facilities that have 404-regulated return flow or that impact regulated wetlands CONTAMINATED SEDIMENTS IN PORTS AND WATERWAYS (see also 4.E)
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From page 217... ...
However, pending revisions to RCRA regulations would create a dredged material exclusion for sediments that are otherwise regulated by permit under the CWA or the MPRSA. This would include confined disposal facilities with a return flow to U.S.-regulated waters, requiring CWA Section 404 permit..
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From page 218... ...
. 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 1.A)
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From page 219... ...
. 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.
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From page 220... ...
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.
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From page 221... ...
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 non-bioaccumulative," 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)
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From page 222... ...
(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]
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From page 223... ...
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.
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From page 224... ...
Although it is probably not possible for most sediment contaminants to quantitatively link discharges from individual point and nonpoint sources to site-specific buildups in downstream sediments, there is no reason why presumptive sources of problematic sediment contaminants could not be inventoried and prioritized so that regulators could use the TMDL approach to progressively reduce contamination from the most important sources. CONCLUSION The efficient and effective management of contaminated sediments, whether associated with navigation dredging or environmental cleanup, is hampered by both too much and too little legislative and regulatory attention.
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