PROPOSED REVISIONS TO OCEAN DUMPING CRITERIA FINAL ENVIRONMENTAL IMPACT STATEMENT VOLUME II I® I \ ¦ - - ,v "*< PROl4" U.S. ENVIRONMENTAL PROTECTION AGENCY Washington, D.C. 20460 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY PROPOSED REVISIONS TO OCEAN DUMPING fDITUDTA vjKl 1 ljixlA FINAL ENVIRONMENTAL IMPACT STATEMENT VOLUME II Prepared By: Oil and Special Materials Control Division Office of Water Program Operations U.S. Environmental Protection Agency Washington, D.G. 20460 Approved by: Date: ' ------- TABLE OF CONTENTS VOLUME I Summary Sheet i Preface xi Table of Contents xv List of Tables xix Chapter I- Background arid Basis for Regulation 1 Introduction 1 Statutory Basis for Regulation 2 Domestic Legislation 3 International Convention 5 Factors Governing Establishment of Criteria 7 Domestic Law Basis for Criteria 7 International Convention Basis for Criteria 9 Corps of Engineers Permits for Dredged Material 13 Basis for the Development of Existing Criteria 14 History 14 General Regulatory Requirements 19 Specific Considerations Required by the Convention 20 Characteristics of the Matter 21 Summary of Requirements for Criteria Related to the Characteristics of the Matter Proposed for Dumping 29 Characteristics of the Dumping Site and Method of Deposit 32 General Considerations and Conditions 34a Structure of the Criteria of October 15, 1973, and Basis for Specific Limitations 35 ------- Part 227.21. Materials for which no permit will be issued 36 Part 227,22. Other Prohibited Materials 38 Mercury and Cadmium 41 Ambient Background Levels 42 Initial Mixing - 45 Permissible Deviation from Normal Ambient Values 50 Organohalogens 52 Oils and Greases 53 Part 227. 3 Strictly Regulated Dumping 54 Part 227.4 Implementation Plan Requirements for Interim Rermits * 61 Part 227.5 Less Strictly Regulated Dumping and Disposal Acts 62 Part 227. 6 Disposal of Dredged Material 62 Criticism of Ocean Dumping Regulations and Criteria 67 General Criticism of Criteria 69 Criticism of Dredged Material Criteria 72 Chapter II - Description of the Proposed Criteria 75 General Basis 75 Part 227.- Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials " 76 Subpart A - General (Section 227. 1 - 227. 3) 77 Subpart B- Environmental Impact Criteria (Section 227.4 - 227. 13) 78 Section 227.4 78 Section 227. 5 78 Section 227. 6 79 Basis for Regulation 81 ------- Strictly Regulated Materials (227. 7 - 227. 12) Dredged Material (227. 13) Other Factors Considered Subpart C- Need for Ocean Dumping (Sections 227. 14-227. 16) Subparts D & E- Impacts on Aesthetic and Recreational Values and Other Uses (Sections 227. 17-227.22) Subpart F- Special Requirements for Interim Permits under Section 102 of the Act (Sections 227.23-227.26) Subpart G- Definitions (Sections 227.27-227. 32) Part 228 - Disposal Site Designation and Management Existing Site Designation Procedures New Site Designation Procedures General Permits Special and Interim Permits Emergency Permits Research Permits Dredged Material Disposed Incineration at Sea Criteria for the Selection of Sites Disposal Site Management Regulation of Disposal Site Use Limitations on Times and Rates of Disposal Disposal Site Monitoring &¦ Evaluating Disposal Impact Modification in Disposal Site Use ------- Chapter III - Alternatives to the Proposed Action 125 The Alternative of No Action 126 Alternative Levels of Unreasonable Degradation 128 Impact Category A 132a Impact Category B 134 Impact Category C 134 Impact Category D 135 Impact Category E 137 Alternative Scientific Bases for the Criteria 138 Chapter IV - Impacts of the Proposed Criteria 143 Immediate Impacts on the Marine Environment 143 Long-Range Impacts on the Marine Environment 145 Impacts on Other Parts of the Environment 149 Economic Impacts 151 Chapter V - Adverse Impacts Which Cannot be Avoided 153 Environmental Impacts 153 Economic Impacts 154 Chapter VI - Relationship Between Local Short-Term Uses of Man's Environment and The Maintenance and Enhancement of Long-Term Productivity .157 Chapter VII - Irreversible and Irretrievable Commitment of Resources 161 Chapter VIII - Summary of Changes Made as a Result of Comments Received 165 References 201 Appendix A - Marine Protection, Research and Sanctuaries Act of 1972 Appendix B - The International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter ------- Appendix C - (Existing) Ocean Dumping Regulations and Criteria October 15, 1973. Appendix D - Draft Final Revision to Ocean Dumping Regulations and Criteria Appendix E - Past and Current Ocean Dumping Practices Appendix F - Report by the IMCO Secretariat of the First Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Appendix G - Report and Transcript of the EPA Technical Workshop on Ocean Dumping Criteria. VOLUME II Appendix H - Comments and Responses on Proposed Revisions and Draft Environmental Impact Statement LIST OF TABLES Table I. 1 - Relationship Between Ocean Dumping Criteria and Considerations Required by the Act and the Convention 16 Table III. 1 - Relative Importance of Statutory Factors in Establishing Criteria at Each Impact Category Table HI. 2 - Impacts Associated With Various Impact Categories Table III. 3 - Changes in Criteria for Different Impact Categories as the Basis for Regulation Table III, 4 - Impacts of the Proposed Action 129a 130 131 136a ------- APPENDIX H COMMENTS AND RESPONSES ON PROPOSED REVISIONS AND DRAFT ENVIRONMENTAL IMPACT STATEMENT (See Chapter VIII for Summary of Changes Made as a Result of Comments Received) LIST OF COMMENTERS H-3 COMMENTS AND EPA RESPONSES H-9 ------- List of Commenters on Proposed Revisions to Ocean Dumping Regulations and Criteria 1. Miss Louise Chubb, Alexandria, VA 2. Lee E. Koppelman, Nassau-Suffolk Regional Planning Board, Hauppauge, L.1., NY 3. Kenneth S. Kamlet, National Wildlife Federation, Washington, DC 4. Louis Fuselier and Carlton Owen, Mississippi Wildlife Federation, Jackson, MS 5. Charles H. Callison, National Audubon Society, New York, NY 6. Capt. F. P. Schubert, U.S. Coast Huard, Washington, DC 7. J. H. Huguet, Ethyl Corporation, Baton Rouge, LA 8. J. II. Rook, American Cyanamid Company, Wayne, NJ 9. E. C. Fullerton, Department of Fish and Game, State of California, Sacramento, CA 10. Bernard C. Smith, State Senate, Albany, NY 11. D. W. Bennett, American Littoral Society, Sandy Hook, Highlands, NJ 12. C. A. Porter Hopkins, Senate of Maryland, Annapolis, MD 13. Robert E. Burks, Jr. and James w. Reeder, Alabama Wildlife Federation, Birmingham, AL 14. Vernon Smith and W. L. Reavley, California Natural Resources Federation, Sacramento, CA 15. William V. Skidmore, Department of Commerce, Washington, DC 16. Jennifer Lev/is, Executive Office of Environmental Affairs, Commonwealth of Massachusetts, Boston, MA n-3 ------- 17. James R. Cregan, National Newspaper Association, Washington, DC 18. A. S. Taormina, Nev; York State Department of Environ- mental Conservation# Stony Brook, MY 19. Jonathan T. Smith, Washington, DC 20. Donald J. Zinn, University of Rhode Island, Kingston, RI 21. Christopher M. Weld, National Coalition for Marine Conservation, Inc., Boston, MA 22. James H. Carpenter, University of Miami, Miami, PL 23. Donald D. Carruth, The American Eacrle Foundation, Chevy Chase, MD 24. Richard T. Barber, Duke University Marine Laboratory, Beaufort, NC 25. T. J. Sharpe, EPA, Research Triangle Park, NC 26. CDR. R. F. Eiden, U.S. Coast Guard, Washington, DC 27. Reuben Lasker, Southwest Fisheries Center, NOAA, LaJolla, CA 28. S. A. Lubetkin, Passaic Valley Seweraae Commissioners, Newark, NJ 29. Jennifer Lewis, Executive Office of Environmental Affairs, Commonwealth of Massachusetts, Boston, MA 30. Kenneth S. Kamlet, National Wildlife Federation, Washington, DC 31. Clinton B. Spotts, EPA Region VI, Dallas, TX 32. Kenneth S. Kamlet, National Wildlife Federation, Washington, DC 33. Roy E. Martin, National Fisheries Institute, Washington, DC 34. Candace Lee Street, Department of Ecology, State of Washington, Olympia, WA H-4 ------- 35. John H. Martin, Moss Landing Marine Laboratories, Moss Landing, CA 36. Anne Wickham, Friends of the Earth, Washington, DC 37. Carl B. Everett and Lloyd L. Falk, E. I. du Pont de Nemours & Company, Wilmington, DE 38. Willis E. Pequegnat, TerEco Corporation, College Station, TX 39. F. John Vernberg, Columbia, SC 40. William B. Middendorf, Department of Environmental Resources, Commonwealth of Pennsylvania, Harrisburg, PA 41. Patrick M. McCaffrey, Coordinating Council on the Restor- ation of the Kissimmee River Valley, Tallahassee, FL 42. Kenneth S. Kamlet, National Wildlife Federation, Washing- ton, DC 43. Albert C. Clark, Manufacturing Chemists Association, Washington, DC 44. Jean Anderson, League of Women Voters of the United States, Washington, DC 45. Richard E. Marland, office of Environmental Quality Control, State of Hawaii, Honolulu, HI 46. Theodore C. Loder, University of Mew Hampshire, Durham, Nil 47. Fred Rudin, Deputy Mayor, Village of Atlantic Reach, NY 48. Carmen F. Guarino, City of Philadelphia Water Department, Philadelphia, PA 49. L. P. Haxby, Shell Oil Company, Houston, TX 50. J. Frank Slowey, Texas ARM University, College Station, TX 51. Hugh B. Barton, Exxon Company, Houston, TX 52. Donald D. Carruth, The American Eagle Foundation, Chevy Chase, MD H-5 ------- 53. M. Grant Gross, Chesapeake nay Institute, The Johns Hopkins University, Baltimore, Mr) 54. Sarah Chasis, Natural Resources Defense Council, Inc., New York, NY 55. Kenneth Y. Chen, University of Southern California, Los Angeles, CA 56. Boris J. Osheroff, Public Health Service, Department of Health, Education, and Welfare, Washington, DC 57. Robert R. Stickney, Texas ARM University, College Station, TX 58. J. Philip Keillor, University of Wisconsin Sea Grant College Program, Madison, VI 59. John R. Jannarone, Consolidated Edison Company of New York, Inc., New York, NY 60. G. V. Cox, Marine Water Quality Committee, Water Pollution Control Federation, Washington, DC 61. Judith Pickett, Conservation Law Foundation of New England, Inc., Boston, MA 62. G. Fred Lee, University of Texas at Dallas, Richardson, TX 63. Walter R. Courtenay, Jr., American Society of Ichthyolo- gists and Herpetologists, Florida Atlantic University, Boca Raton, FL 64. Sidney R. Galler, U. S. Department of Commerce, Washington, DC 65. H. G. Rodman and J. E. Silver, NL Industries, Inc., llightstown, NJ 6G. J. B. Groff, Department of the Navy, Washington, DC 67. Duplicate of 56. 68. Ralph S. Domenowske, Municipality of Metropolitan Seattle, Seattle, WA Il-fi ------- 69. Joseph W. Landers, Jr., Department of Environmental Regulation, State of Florida, Tallahassee, PL 70. Ray B. Krone, Davia, CA 71. Sidney R. Galler, U. S. Department of Commerce, Washington, DC 72. Mark Chandler, EPA Region VI, Dallas, TX 73. Gen. Drake Wilson, Department of the Army, Washington, DC 74. David D. Smith, David D. Smith and Associates, San Diego, CA 75. Capt. P. P. Schubert, U. S. Coast Guard, Washington, DC 76. Stanley D. Doremus, U. S. Department of the Interior, Washington, DC 77. R. G. Whittle, Jr., Florida Department of Adminis- tration, Tallahassee, PL 78. R. E. Van Ingen, Shell Oil Company, Houston, TX 79. James C. Miller III, Council on Wage and Price Stability, Washington, DC 80. Joseph W. Landers, Jr., Florida Department of Environmental Regulation, Tallahassee, FL 81. Russell W. Peterson, Council on Environmental Quality, Washington, DC II-7 ------- 4901 Seminary Road Apt. 813 Alexandria, Virginia 22311 June 28, 1976 Mr. T. A. Wastier Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S. W. Washington, D. C. 20460 Dear Mr. Wastler: This comment relates primarily to the statement in column 2 on page 26644 of the Federal Register of June 28, 1976, EPA Proposed Revision of Regulations and Criteria on Ocean Dumping, wherein you note EPA's intent to eliminate ocean dumping of unacceptable materials as soon as possible. I want to commend the EPA on the excellence of the efforts you are making to control this dumping. It would appear to this member of the public that one of the things needed is for industry to develop more pollution free production methods. Nevertheless, your possibly more direct interest might relate to the following suggestion: X think that the dumping of unacceptable materials in the ocean should be stopped as soon as possible and that these should be stored in retrievable containers so that when we do develop abundant, less costly, and environmentally acceptable energy, the harmful materials (especially radiactive & carcino- genic materials) could be rocketed off into the sun. I prefer the sun to outer space even though I know it takes more energy to direct a rocket to the sun than- to general outer space. I oppose promiscuous clutter and believe the sun could handle such substances. A corollary might be to attempt to have the harmful sub- stances separated by type, as some will no doubt even- tually prove useful for recycling as technology advances. All this is surely far in the future but I hope is parallel to your own thinking. Thank you for your efforts. Sincerely, ¦/' . /> /; .. j (Miss) Louise Chubb ------- #1 In responding to the comments received from Miss Louise Chubb, Alexandria, Virginia, we recognize her concerns. We do believe that storage can be useful as a short-term alternative. However, storage of hazardous materials for extensive periods of time based on a hope that some future, feasible alternative method of disposal may be developed is not a positive approach to the problem. In most cases, recycling processes and better treatment methods of the wastes will be reliable enough to alleviate her concerns. ------- WNtSS Nassau^Suffolk Regional Planning Board Harold V. Gleason H. Lee Dennison bxecutive Office Building Chairman Veterans Memorial Highway Hauppauge.L.l., N.Y. 11787 Seth A. Hubbard, Esq. Area Code (516) 724-1919 Vice Chairman Vincent R. Balletta, .lr. Robert D. Bell July 27, 1976 Thomas Halsey Lee E. Koppelman Executive Director Honorary: Leonard W. Hall H. Lee Dennison Mr. T.A. Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Re: Proposed EPA Ocean Dumping Rules Dear Mr. Wastler: We have reviewed the proposed rules and would like to suggest for your consideration the following additions. 1. Section 227.15 lists the factors that are considered when evaluating the need for ocean dumping and the alternatives to ocean dumping. I believe that Section 227.15(c) should be expanded to include a cost analysis of the environmental damage associated with various waste material disposal alternatives. This will enable a clearer trade-off analysis of the various alternatives in terms of their true public, as well as private costs. 2. Section 227.18 lists the factors that are considered when evalutating the impact of proposed dumping on aesthetic, recreational and economic values. In addition to the factors which are listed, I believe that an additional item should be considered, namely, an historical account- ing of beach closure or other environmental impacts associated or linked with the activities already occurring in a proposed dump site. This would enable an evaluation of the potential impacts of a proposed dump- ing activity in light of the historical environmental/recreational/aes- thetic insults that are associated with ongoing activities. suggestions. I want to thank you for the opportunity to submit these Very truly yours, Too F Vnnnolman " ™ LEK:cb Lee E. Koppelman cc: Hon. Norman Lent. Coneressman Fvo ouh-fnro FH vor> »-*• ------- n Two comments were received from the Nassau-Suffolk Regional Planning Board, Hauppauge, Long Island. The following responses are in sequence to the comments. 1. We agree in principle with this comment. Changes have been made in Subparts C and D of the regulation which will require a more extensive and balanced analysis of the costs of alternatives to ocean dumping as well as their environmental and econonic impacts. 2. It would be extremely difficult to relate ocean dumping activities to an historical accounting of beach closures or other environmental impacts as is suggested here. As an example, public press accounts related the problems on the New York beaches during the summer of 1976 to sludge dumping, whereas the best scientific information showed that the situation was cause-related to the discharge of raw sewage from the metropolitan area and out the Hudson River and Raritan Bay. ------- National Wildlife Federation 1412 16TH ST., N.W., WASHINGTON, D.C. 20036 Phone: 202-797-6800 July 29, 1976 Mr. T.A. Wastler Chief, Marine Protection Branch (WH-5^ 8) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Re: Comments on Proposed Revised Ocean Dumping : Regulations and Criteria, 41 Fed.Reg. 26643- 26667 (June 28, 1976) j Dear Mr. Wastler: j Pursuant to the invitation to comment contained in the June 28, 1976, Federal Register, it is my pleasure to transmit the National Wildlife Federation's analysis of EPA's proposed revisions j to its ocean dumping regulations and criteria. We may very possibly communicate with you further on this subject between now and the August 27, 1976, comment deadline. Our reactions to the new regulations must be treated in separate j categories. Our comments will differ for dredged and non-dredged wastes (because EPA has chosen to treat them differently). Sometimes j they will relate to legal deficiencies; other times to undue, if net | illegal, laxity in EPA's regulatory approach. i i First, on the subject of dredged material, we find the new ! criteria deficient in a number of respects, including the following j legal defects which fall within the scope of our lawsuit (NWF v. Train, ! Civ. No. 75-1927 (D.D.C.)): j 1. Failure to implement the Convention's prohibition ; against ocean dumping "black-list" substances "as other than trace j contaminants." j a) By not making clear that the Section 227.6(a) j prohibition applies to approvals by the Corps of Engineers, as well as j by EPA. j b) By not defining "trace contaminants," thereby j making the prohibition impossible to enforce or implement. (We think an acceptable definition can be developed which would still permit most dredge spoil dumping to continue). H 13 ------- Mr. T.A. Wastler -2- July 29, 1976 2. Failure to ensure against dumping which may produce unreasonable degradation or endangerment by making it easy to find dredged material "environmentally acceptable for ocean dumping," but very difficult, if not impossible,to ever find it environmentally unacceptable for ocean dumping. 3. Failure to take adequate account of effects on marine organisms and on marine ecology. Not only do the dredged material criteria ignore many of the MPRSA's and the Convention's mandatory evaluation factors relating to biological and ecological effects, but the dredged material criteria fail to apply "those criteria" relating to the effects of dumping established for all other wastes. The criteria for non-dredged wastes consider, as they must, effects on both water quality and marine organisms. But the dredged material criteria consider only effects on water quality — despite the fact that the dredged material which settles to the bottom and becomes suspended in particle form in the water can, if it is polluted,have a direct toxic effect on filter-feeding and bottom-dwelling marine organisms. Water quality criteria — around which the elutriate test procedure and the limiting permissible concentration ("LPC") criterion are oriented, among many others — simply tell nothing about these direct toxic effects of the solid portion of ocean-dumped dredged material. If bioassays (laboratory tests of toxicity to appropriate sensitive organisms) can be carried out on and are required by the criteria for sewage sludge, which is part liquid and part solid, there would appear to be no rational basis for the criteria's failure to require comparable toxicity testing for dredged material. H. Failure to comply with the Convention's requirement of adequate dumpsite study before dumping may take place. The site designation procedures for dredged material dumpsites are also far less restrictive (and protective of the environment) than those for all other waste types. There appears to be no rational basis for this difference in approach. In short, the statutory presumption against allowing dumping not shown to be safe (or at least, "reasonable") continues to be circumvented; some of the MPRSA's and the Convention's mandatory evaluation factors (although fewer than before) still have not been properly taken into account; the Convention's prohibition against dump- ing "black-list" substances is still not being implemented; and the dredged material criteria continue to be different from and less restrictive than the criteria for all other wastes — without a rational basis justifying the differences. In other words, our fears have been realized. We were convinced that the new criteria would repeat many of the errors of the old, unless the Court stepped in to resolve the issues of law which we raised in mid-November and which remain issues today. H 14 ------- Mr, T.A, Wastler -3- July 29, 1976 We have made every possible effort to reach an acceptable compromise with EPA and the Corps. Not only have X discussed the case informally with Mr. Disheroon on numerous occasions, but as you may known, we met on July 15, to discuss with representatives of the Corps of Engineers (Jim Rogers of EPA and Fred Disheroon of Justice were also present), some of our most serious remaining problems with the dredged material portions of the new criteria. We are hopeful that the responses we will be getting from the Corps will enable us to narrow at least somewhat the issues which we will otherwise be forced to continue litigating. If agreeable to Mr. Disheroon, we would be happy to discuss any or all of these issues with you, with Mr. Train, Mr. Breidenbach, Mr. Rhett, Mr. Biglane and/or anyone else you care to designate. By the same token, if EPA regards any or all of these issues as non- negotiable, we would appreciate being so-advised immediately. With regard to the criteria for non-dredged wastes, we have five major continuing problems. 1. The failure to define "trace contaminants" (see above). The implications of this are not quite as serious as in the case of dredged material, because there are at least specific criteria which non-dredged wastes must meet in order to obtain a "special" dumping permit. Nevertheless, the lack of a basis for carrying out the Convention's black-list prohibition violates the law. 2. The use of insufficiently restrictive mercury and cadmium limits, even for special permit purposes. 3. The continued (although slightly restricted) availability of "interim" permits for wastes which do not satisfy the ocean dumping criteria. 4. The automatic and impermissible presumption that no unreasonable degradation or endangerment can result within four hours after disposal. 5. The failure to take adequate account of long-term and cumulative dumping impacts. Before closing, I would like to acknowledge that there have been some improvements made in the new criteria — at least for non- dredged wastes. Among these are improved bioassay requirements, the addition of "known or suspected carcinogens" to the black-list, the addition of disposal site designation and monitoring procedures, and the partial strengthening of restrictions on obtaining interim permits. We commend EPA for making these improvements. H 15 ------- Mr. T.A. Wastler July 29, 1976 If you have any questions about the enclosed analysis (which was prepared on July 12), please do not hesitate to let me know. KSK/jk Enclosure cc; Dr. Breidenbaeh (EPA) Mr. Rogers (EPA) Mr. Walter (EPA) Mr. Dlsherccn (Justice) Mr. Hedeman (Corps) U Xil vCX v .L jr j Sincerely Kenneth S. Kamlet Counsel H 16 ------- National Wildlife Federation » HTM %t. NW, WASHINGTON. QC. JOOIfe Phot* XT—717-4*00 ANALYSIS OF THE PROPOSED REVISED ENVIRONMENTAL PROTECTION AGENCY OCEAN DUMPING REGULATIONS AND CRITERIA. FED. REG. 266^3-67 (June 28, 1976) Defects In the Criteria Applicable to Non-Dredged Wastes I. The failure to define the tens "trace contaminant" makes It Impossible to enforce the prohibition of the Ocean Dumping Convention against dumping Section 227.6(a) constituents "as other than trace contaminants.* The United States Is obliged under both international and domestic law to prevent the ocean dumping of mercury, cadmium organohalogens (e.g., DDT, PCBs, kepone), and oil and grease in more than trac« amounts, EPA's failure to define "trace contaminants" is a serious and unwarranted shortcoming. Specific numerical limits for h these substances are prescribed (at lease for "special" permit U purposes) In Section 227.6(b). These limits are presumably designed *3 to avoid harm to the environment. There is no reason why "trace contaminant" levels cannot be defined in the same way. Reeoraraenda11on: Section 227.6 should be revised to make the criteria of subsection £b) the basis for derinlng "trace contaminants," rather than merely the basis for determining whether so-called "special* ocean dumping permits may be issued. c, The mercury and cadmium limits of Section 227.5(b) fail tc adequately protect the marine environment. Section 227.6(b) allows wastes,to be ocean-dumped under special permits.which contain levels of mercury in the liquid phase of less than 1.5 mlllgrams per kilogram (mg/kg, or ppm) and levels or cadmium in the liquid phase of less than 3.0 mg/kg. The EPA cadmium limit is 15C,000 times higher than ambient open ccean levels of cadmium, ^,300 times higher than even the highest typical oceanic levels, 300 times the level regarded by the National Academy of Sciences as constituting "a hazard" in the marine environment, and 15,000 times the NAS-established "minimal risk" level. The EPA mercury limit is 15,000 times open ocean levels, 7,500 times the highest typical ambient levels, and 15,000 times the NAS "hazard" level. While it is true that mercury and cadmium occur naturally and that, in theory, waste discharges containing these substances should be diluted rapidly, it is also true that mercury and cadmium are persistent poisons capable of being concentrated at elevated levels In the flesh of marine organisms and of being further magnified by passage through the food chain. The environment is simply not sufficiently protected by assuming Instantaneous 15,000-fold dilution of mercury and cadmium before they come into contact with marine lire. Recommendation: The liquid-phase limits for mercury and cadmium should be changed to no more than 0.05 mg/kg for cadnluo (this is still 5 times the hazard level) and 1.5 ug/kg (micrograms per kilogram) for mercury (this is still 15 times the hazard level). ------- -3- 3. Special studies to determine the health and ecosystem Impacts of wastes believed to contain Section 227.6(a)(5) carcinogens, should be mandatory rather than discretionary. Although Section 227.6 prohibits EPA dunplng approval for wastes containing "known or suspected carcinogens" as other than trace contaminants, no guidance is provided as to what specific carcinogen levels are excessive — even for special permit purposes. Section 227.6(c) merely permits, but does not compel the reviewing official to require "special studies. . . to determine [the] impact on human health and/or marine ecosystems [of any carcinogens, mutagens, or teratogens believed to be present]." This affords little protection Indeed against the adverse effects associated with such substances. Recoianendation; (a) Section 227.6(c) should be revised to require special studies on health and ecosystem impacts, where there Is reasonable cause to believe that a waste proposed fur ocean dumping contains carcinogens, mutagens, or teratogens; (b) screening procedures should be specified for determining when carcinogens are present as "other than trace contaminants " and (c) Section 227.6(»)< 5) should be revised to prohibit the dumping of "known or suspected mutagens and teratogens," as well as carcinogens. -u- u. Tr.e continued aval.ability of interim permits for wastes which do not satisfy the ocean dunping criteria Is legally Indefensible; the open-ended availability of such permits for the ocean dumping of sewage siudae — ever, beyond 1981 — is particularly unwarranted. The M.PRSA prohibits the ocean dumping of wastes which may unreasonably degrade or endanger the marine environment or human health. The Convention prohibits the dumping of certain toxic wastes (notably those described In Section 227.6(a))as other than trace contaminants. Neither the law nor the treaty allows such wastes to be dumped merely because the permit which 13 Issued is referred to as "Interim." In apparent recognition of this, Section 220.3(d) purports to place an April 23, 1978 time limit (corresponding to five year's from the MPRSA's effective date) on the continued availability of interim permits. Such a five-year compliance period is of doubtful legality, but may be Justified by considerations of practical necessity. Section 220.1(d) goes on, however, to exempt from the compliance date virtually every conceivable waste material. In the case of Industrial and other non-sewage wastes, compliance Is excused where "the dumper has attempted in good faith to comply with the date of April 23, 1978, and has a treatment raclllty under construction on a schedule adequate to permit phasing out of ocean dumping or compliance with the criteria of SubpartB by April 23, X9 8l, at the latest." Note that the dumper need not actually phase-out his dumping by April 23, 19?lt but must only present a schedule "adequate to permit" either phasing out or conforming with Subpart B. In the case of "the dumping of wastes from sewage treatment works," the cost of exemption is even cheaper. The dumper need only persuade the Regional Administrator that it "has ------- exercised [its] best efforts to comply with all requirements of a special permit." A sludge dumper need not even demonstrate a "good faith attempt" to comply with the 1978 deadline or even a 1901 deadline. All that Is required Is "best efforts" to comply with special permit requirements. One might well wonder hou EPA will define "best efforts" for a bankrupt city like New York (quite possibly, EPA could conclude that best efforts for New fork City are no efforts at all). Phasing out of sludge dumping (by whatever date) Is not even listed as an option. This approach, toward sludge dumpers especially, Is unwarranted In fact as well as law. The only ocean dumping of wastes from sewage treatment works presently In progress emanates from cities In the New York City metropolitan area and from the cities of Philadelphia, Pa. and Camden, New Jersey. Philadelphia and Camden are already on phase-out schedules for ending their dumping by the end of 1980 and the end of 1979* respectively. There Is a good chance that EPA Region II will, by the end of July, place its sludge dumpers (In New York and New Jersey) on a schedule for terminating their dumping "by 1981." (There Is certainly no technological Impediment to Imposing such a termination date). There lo absolutely no legal or practical justification for giving sludge dumpers special treatment. Recommendations; (a) Revise Section 220.3(d) to remove any special treatment for wastes from sewage treatment works and to require compliance with the 1978 Interim permit deadline for all waste types unless the applicant adequately demonstrates both -6- a good faith attempt to comply with the 1978 date and an~Implementation schedule adequate to permit compliance by April 23, 1981 at the latest; and (b) revise Section 220.3(d) to make clear (as was done In Section 227.23) that the choice between phasing out and compliance with the criteria for a special permit, Is a choice to be made by EPA rather than the applicant (I.e., EPA retains the discretion, as It must under the law, to require a dumper to phase-out even If the dumper Is willing to pre-treat Its wastes so as to satisfy the criteria). ------- -7- 5- Sections 227.6(d), 227.13(d), 22?.29(a)(read together with Sections 227.13(c), 227.27(a)(3), and 228.10(c)(1) (v )) Impermissibly presume that degradation and endangerment which occurs within four hours after disposal la per it permissible under the MPRSA and the Convention. There Is no basis Tor such a presumption under the KFRSA. The Convention does contain a narrow exception to Its prohibition against dumping Anne* I substances (nereury, cadmium, etc.), where they "are rapidly rendered harmless by physical, chemical or biological processes in the sea provided they do not: (1) make edible marine organisms unpalatable, or (11) endanger human health or that of domestic animals." Nothing In the Convention, however, Justifies equating "rapidly rendered harmless" with dilution processes which take four hours to reach "harmless" levels. (Section 227.6(e) recognizes this by accurately quoting the Convention's language; Section 227.6(d), particularly paragraph (2), and Section 227.13 (d)(2) Impermissibly go beyond the Convention's or the law's allowable limits). In addition, from a scientific standpoint, as EPA's Assistant Administrator for Research I Development has testified at congressional hearings: "{Dilution phenomena provide adequate protection only] for those materials which are known not to accumulate in marine species, which are readily biodegradable, and whose toxicity is such that following a short-tern dilution will cause no ecosystem damage." EPA's Administrator has also assured congressional leaders that it Is EPA's "firm Intent not to sacrifice any part of the marine environment for waste disposal." Ignoring waste disposal Impacts during the first four hours could represent a very substantial sacrifice. -8- Recommendatlons: (a) Delete Sections 237.6(d)(2) and 227.13(d)(2); (B) redefine "Initial mixing" In Section 227.29(a) to mean "r.ot more than one hour after dumping, unless a shorter period is called for Based on the toxicity or bloaccunulatlon potential of the waste"; and (c! change "four hcur3n to "one hour" In Section 228.10{c)(l)(v). ------- 6. The criteria Tall to take adequate account or lone-term and cumulative dumping Impacts, The MFRSA (Sections 102(a)(E) and (F) 3 and the Convention (Anne* III, Pare. (A)(5) - (A)(7) specifically require consideration of waste persistence, accumulation, blotranaformat ion, alteration and interaction, permanence of effects, and effects of dumping particular volumes and concentrations. The failure of the criteria to reflect these considerations is conspicuous. (a) Section 228.2(h), by defining "normal ambient value" In terms of concentrations expected to be present "In the absence of disposal activities at the disposal site In question," lnplies that, If the dump site Is already degraded By pollutant disposal outside the site (dumping and otherwise), that level of pollution may be regarded as "normal" and as the baseline against which to measure later changes. This approach is Inappropriate. The HPHSA seeks to avoid all unreasonable degradation or endangerment resulting from ocean dumping, whether the dumping Is a sole cause, a minor contributor, or only a trigger. (b) Although Section 227.20(a) calls for consideration of "any possible long-range effects [on other ocean uses] of even the most innocuous substances when dumped In the ocean on a continuing basis,"It does not go beyond effects on other human uses of the ocean (as opposed to purely ecological effects) and It does not extend to cumulative Impacts of dumping by more than one dumper. (c) The criteria allow permits to be Issued and reissued without any prior consideration of likely long-term or cumulative -10- dumping Impacts. This defect Is compounded by the fact that Section 227.23(b) permits EPA to allow ocean dumflng tc continue Indefinitely, as long as the dumper Is satisfying the special permit criteria — criteria which simply do not take adequate account of cumulative and long-range Impacts. (d) The provisions of Part 228 for selecting and monitoring disposal sites fall to remedy these defects. In general, these provisions Involve only an after-the-fact response to damage that has already occurred. For example, Sections 228.10 and 228.11 provide for modifications In disposal site If overall dumping impacts exceed spec!fled levels. And Section 223.2(a)(3) provides for permit modification, revocation, and/or suspension only after the cumulative or aggregate Impacts at a site fall within Impact Category 1. (Note that, although Section 228.10(b)(6) requires "consideration" of bioaccumulation of waste constituents In marine biota, bioaceumulation Is not specifically made a basis for Impact Category 1 classification.) (e) Finally, although Sections 228.3(a) and 228.6(a)(7) provide for regulating dumping rates and quantities and for "considering" cumulative effects In selecting dump sites, these provisions do not provide an adequate substitute for individualized attention to cumulative and long-term dumping impacts at the time of each ocean dumping proposal (and Before dumping is allowed to occur). ------- Recommendations: (a) "Hornal ambient value," as employed In Section 228.2(h), should be redefined In terms of concentrations expected "In the absence of human Influence on the disposal site In question"; (b) Section 221.1 should be revised to require permit applications to consider long-range, cumulative, and aggregate dumping effects at the desired disposal site (I.e., application should address other pollution sources potentially influencing the dump site and the anticipated duration of the dumping activity); (c) Subparts A and B should be revised to preclude any "unacceptable adverse long-term, cumulative, oraggregate effects on the marine ecosysten, on marine resources, or on other uses of the ocean"; and (d) Section 228.10(c)(1)(v) should be revised to change "above normal ambient values outside the disposal site," to "above normal ambient values In sediment, Mater, or biota outside the disposal site." 7. Provisions such as those of Sections 228.1(e)(6)(1), 228.10(b)(ft) and 228.11(d), are improperly designed only to avoid adverse effects "In the disposal area," as opposed to Impacts outside the disposal site which are attributable to dumping actlvltes. ReeommendatIons; "Revise Sections 228.1(e)(6)(1), 228.10(b)(ft), and 228.11(d) (and other similar provisions) to specify Impacts "at or near the disposal site." Defect a In the Criteria Applicable to Jredged Material 1. The dredged material criteria fall to subject dredged material even to an undefined prohibition against dumping Section 227.6(a) constituents as other than trace contaminants. Because Section 227.6(a) specifies only that dumping of the prohibited constituents as other than trace contaminants "will not be approved b£ EPA," It is of quesionable applicability to dredged material which Is regulated by the Corps or Engineers. This, despite the fact that Section 227.1(b) imkes Section 227.6(a) applicable to dredged material. This Is not a typographical error or an Inadvertent oversight. NWF called this Inconsistency to the Corps' attention and the Corps expressly declined to rectify It. Nothing In the Convention or the MPRSA excuses dredged material from the prohibition against dumping Section 227.6(a) constituents as other than trace contaminants. The proposed approach Is illegal* Recommendation: Revise Section 227.6(a) to read: "Willnot be approved by EPA or tjhe Corps of Engineers." ------- -13- 2a. Sections 227.13(b) and 227.13(c) treat as "acceptable" for ocean dumping, dredged materials which satisfy any of three qualitative criteria or one Quantitative criterion, but nothing In the revised ocean dumping criteria makes dredged materials which do not satisfy these criteria, "unacceptable'' for ocean dumplnK. This approach violates the law in at least two respects. Contrary to the MFRSA's prohibition against dumping not shown to be safe, the criteria authorize as acceptable all dumping not shown to be harmful. In addition, the lopsided approach of the dredged material criteria is far less protective of the environment than, and other- wise not comparable to, the approach taken for non-dredged wastes. This violates the requirement of Section 103(b) that the criteria to be applied by the Corps in evaluating dredged material are to be "those criteria" established by EPA for non-dredged wastes. r O This is contrary to the burden of proof allocation of Sections 102(a) and 103(a), to the comparability requirement of Section 103(b), and to the trace contaminants prohibition of the Convention. 2b. Section 227.13(d) treates as acceptable for ocean dumping, dredged material containing §227.6(a) constituents as other than trace contaminants, where the constituents are shown through bioassay tests to be non-toxic to marine life and non-bioaccumulatlve in the marine environment, but nothing in the revised ocean dumping criteria makes dredged materials not shown to Be non-toiclc and non-bloaceumulative, unacceptable for ocean dumping. 2c. Sectlor- £27.27(a)(3) impermissibility acfir.es the "limiting permissible corcentration" ilfferently for iredged materials than for non-dredReg xgates. For non-dredged waste purposes, Section 227.27(a) defines the "LPC" in terms of a "toxicity threshold" based on bloassays of appropriate sensitive marine organisms. Section 227.29 then prescribes that "the limiting permissible concentration shall not be exceeded at any point in the marine environment after Initial mixing." And Section 227.8 (which Is not applicable to dredged material) states that "no wastes will be deemed acceptable for ocean dumping unless such wastes cafl be dumped so as not toexceed the limiting permissible concentration as defined In §227.27." Although Subpart 0 (which Includes Section 227.29) Is said to apply to dredged material. Section 227.1(b) does not Include Subpart G among the provisions which must be complied with by applicants to dump dredged material in order to be deemed to have met the EPA criteria. Moreover, for dredged material purposes, Section 227.27(a)(3) defines the t»PC, not in terms of toxicity to marine organisms, but in terms of "applicable water quality criteria." Not only does this approach violate non-comparability requirements, but it violates the requirement of Section 103(B) that dredged material be evaluated on the Basis of "criteria. . . relating to the effects of the dumping." Water quality .teria consider effects only on water quality, not effects on marine organisms or marine ecosystems. Moreover, since "water quality ------- criteria" exist only for inland waters and waters of the territorial sea (i.e., ocean waters out to only 3 miles), the requirement of compliance with applicable water quality criteria is meaningless for the 871 of dredged material ocean dumping permit applications that involve dumping beyond the territorial sea. Recommendation: (a) Add the following new subsection (e) to Section 227.13: "Dredged material will be considered environ- mentally unacceptable for ocean dumping if (1) none of the Section 227.13(b) conditions is determined to exist, and (2) if elutriate concentrations, after allowance Is made for dilution in accordance with $227.29, exceed the limiting permissible concentration as defined in 5227.27(a)(1) In addition, dredged material will be considered environmentally unacceptable for ocean dumping when the 1227.6(a) constituents are present as other than trace contaminants and tioassay procedures do not demonstrate that these constituents are present only as chemical compounds or forms non-toxic to marine life and non-bioaccumulatlve in the marine environment.1* Sb) Revise Section 227.(b) to require that dredged material dumper3 must comply with all applicable provisions of ttie criteria (including Subpart 0). (c) Delete Section 227.27(a)(3). (d) Delete Section 227.13(d)(2). -16- 3. The evaluative procedures of Section 227.13 are not adequate to avoid unreasonable environmental degradation and endangerment as a result of dredged material ocean dumping. (a) The three qualitative procedures of Subsection (b) are not adequate to afford the necessary degree of environmental protection. Paragraph (1), for example, which excludes from quantitative evaluative procedures large-particle-size dredged material "characteristic of and generally found in areas of high current, or wave energy," does not adequately exclude polluted sediment. This is so, among other reasons, because large particle sediments (although they may be less prone to physically adsorb contaminants than fine sediments) may still have layers of sewage or industrial wastes In, on, and around them, which will Be dredged up and dumped along with them. This would be less likely in areas of high current or wave energy, but Paragraph (1! does not limit use of this criterion solely to such areas. Rather, it speaks only of sediments "characteristic of and generally found in" areas of high current or wave energy. These fudge words should be eliminated. (b) Even if the Subsection (b) procedures are adequate for distinguishing polluted from unpolluted sediments, there is no Justification for treating unpolluted dredged material as automatically environmentally acceptable for ocean dumping." Even unpolluted dredged material can have major, if localized, adverse environmental effects, if too much is dumped in the wrong place, at the wrong time. In addition to causing suffocation and smothering of marine animals with which it comes in contact, dredged material can reduce photo- synthesis by Impairing light transmission, and can alter bottom-dwelling ------- communities by modifying the substrate on or In which they live. Section 228,1 (e)(3), relating to site selection, cannot take the place of Individualized pre-dumping evaluation, (c) The elutriate procedures and evaluation criteria of Subsections (c! and (d) fall even to adequately protect water quality, much less marine biota or marine ecology. This Is so, because the elutriate test, even If It accurately reflects "the release of contaminants from the sediment'' to the water column, measures the release only of those "major constituents" deemed critical by the District Engineer. Important contaminants can easily be overlooked by this procedure. Moreover, as noted above, nothing in the criteria makes dredged materials not meeting the LPC, "unacceptable" for ocean dumping, and the LPC as defined has no meaning for disposal sltea beyond the territorial sea. An even more serious deficiency of the elutriate approach is that, at best, It Is capable of doing no more than predicting effects on water quality (see, admission of this in Section 227.13(c)). Aa noted in Section 227.13(a), 'expected effecta such as toxicity, stimulation, inhibition, or bloaccumulatlon may best be estimated by appropriate bloaasays." Yet, bioassays are required by the criteria only "when the specific constituents Hated In § 227.6(a) are present as other than trace contaminants." Where "elutriate concentrations are found to exceed limiting permissible concentrations," the District Engineer Is authorized but not required to specify bioassays. Even when bioassays are performed, the criteria specify no set of circumstances under which dumping of dredged material might be found environmentally unacceptable — regardless of the results of the bioassays. - tS- P.ecommendatlons: (a) Section 227.13 (b)(1) should be revised to encompass only small-sized sediments "present In dredging sites of high current or wave energy." (b) Section 227.13(b) should be revised as follows: "Dredged material may be excluded from the evaluative procedures. . . (1) If adequate terms and conditions can be and are Imposed on the dumping of dredged material to provide reasonable assurance that the material proposed for dumping will not cause damage to the environment outside or significant damage to the environment Inside the disposal site, (2) the material proposed for dumping la substantially the same aa the substrate at the proposed disposal site, (3) the material proposed for dumping is dredged from a seawater environment, (*0 the site from which the material proposed for dumping Is to be taken Is sufficiently removed from sources of pollution to provide reasonable assurance that such material has not been contaminated by such pollution, and (5) any of the following is determined to exist: (1) Dredged material is composed predominately of sang, gravel, etc. . , [see existing 5227.13(b)(1)]; or (II) Dredged material Is for beach nourishment, etc. . . [see existing 1227.13(b)(2)]." (c> Section 221.1(c) should be revised to require the chemical description of the material to Include all of the 1227.6(a) constituents and all of the "special care" materials listed in Section 227.31 or the October 15, 1973 Ocean Dumping Criteria (antimony compounds, should be added to this list). Section 227.13(c) should be revised to define "major constituents" as those required to be analyzed under Section 221.1(c). ------- -19- (d) Sections 227.13(c) and 227.13(d) should be revised to specify that dredged material Mil-" he considered environmentally unacceptable If elutriate concentrations exceed the LPC or If$227.6(a) constituents are present as other than trace contaminants and are not shown to be non-toxic and non-bloaccumulatlve. (e) The LPC for dredged material purposes should be defined the same way as for non-dredged material purposes. I.e., in accordance with Sections 227.27(a)(1) and 227.27 (a)(2). Section 227.27(a)(3) should be deleted. X to cn -20- 1. Procedures and requirements for designating dredge spoil dump sites are Inadequate and legally insufficient. The MPRSA authorizes the EPA Administrator (Section 102(c)) to "designate recommended sites or times for dumping and, when'he finds it necessary to protect critical areas. . ., after consultation with the Secretary, [to] also designate sites or times within which certain materials may not be dumped." The Secretary of the Army is, however, required (Section 103(b)), "to the extent feasible, [to] utilize the recommended sites designated by the Administrator. . . ."Article IV(2) of the Convention makes "prior studies of the characteristics of the dumping site," a prerequisite to the issuance of ocean dumping permits. (a) The ocean dumping criteria leave unclear EPA's role in the designation of dredge spoil dump sites. On the one hand Section 225.2(a) provides for EPA review of dredged material permits at the public notice stage, with information to be provided as to whether the proposed site has been designated by EPA and, if not, why the use of a designated site Is not feasible. On the other hand Section 228.M(e) states that "site selection [of dredged material dump sites] will be made based on historic uses of the site, and on historic knowledge of the impact or disposal In areas similar In physical, chemical and biological characteristics." It does not indicate who does the selecting. Moreover, Section 228.12, whlcn lists dump sites "approved for dumping the Indicated materials on ar, interim basis pending completion of baseline or trend assessment surveys and designation for continuing use and termination of use," ------- does not Include any reference to dredged material dump sites. This Implies either that no dredged material dump sites are approved for Interim use, or that EPA plans to let the Corps of Engineers decide which dump sites It wants to use. A further Indication of an Intent by EPA to limit Its roleln dredge spoil dump site designation Is the discrepancy between F.PA's "Statement of Policy" on preparing environmental Impact statements, 39 Fed. Reg. 16186 (Hay 7, 197*0, and the site study procedures of Part 228. Section 1(d)(2) of the Statement of Policy states that EPA "shall" prepare environmental Impact statements In connection with "designation of sites for dumping under section 102(a) [of the MPRSA]." EPA acknowledges this obligation for non-dredge sites In Section 228.6(b), which requires site evaluation and designation studies to be "used In the preparation of an environmental Impact statement for each site where sucn statement Is required by the National Environmental Policy Act or EPA policy." Section 228.Me), however, exempts dredged material site selection from this requirement, and simply.provides (Par. (2)) that "a Joint environmental Impact assessment for all [dredge spoil] sites within a particular area may be prepared. ..." It Is not clear whether this provision applies to all dredge spoil disposal sites, or only to new sites selected after the effective date of Part 228. (b) The ocean dumping criteria Impermissibly leave baseline and trend assessment requirements for dredged material dump sites "to be developed on a case-by-case basis from the results of research, Including that now In progress by the Corps of Engineers" (Section 228.^ (e)(1)). ~ This approach violates the comparability requirement of the MPRSA and the "prior study" requirement of the Convention. It -22- also reverses the statutory burden of proof. Ir.3-.eio selecting only sites shown to be suitable, unsuitable sites may te selected until research results dictate otherwise. (c) The criteria for dredged material would not prevent dredged material dump sites from being used Indefinitely based solely on historical usage. Section 228.12, applicable to only non-dredge dump sites, allows Interim sites (selected based on historical usage) to remain In use without detailed study, "for a period not to exceed three years." There Is no comparable control on the use of dredged material sties. Indeed, Section 228.Me) requires dredged material sites to be selected "based on historic uses of the site," along with historic knowledge of dumping Impacts in similar areas. It Is not even clear whether the general site selection "criteria" (as opposed to study requirements) apply to existing dredged material disposal sties. I.e., Is contloued use of existing dredge spoil sites, site "selection"? Moreover, since Section 228.5(c) provides for termination of site use only during or after site evaluation studies, and only for sites presently approved on an Interim basis, dredge spoil sites need never necessarily be terminated. First, It Is unclear whether existing dredge spoil sites have been "approved on an Interim basis." Second, nothing In the criteria requires "site evaluation studies" for dredge spoil sites within any set period of time. ------- -23- (d) The criteria do not require dredge spoil sites (as they do other sites) to be designated by promulgation in Part 228 or to be designated for a specified period of tine and for specified quantities of materials. These designation requirements apply only to non- dredged Haste sites, for clumping under special and Interim permits (Section 228.11(b) J, Section 228.8, which also applies only to non-dredged material sites, further requires disposal sites to be managed so as not to exceed limits specified In the site designation. And Section 228.11(a), which requires modifications In disposal site use to be promulgated In Part 228, likewise does not apply to dredged material sites. This disparity In treatment is not only unwarranted and unjustified under the comparability provision, but is irrational given the fact that all sites, whether for dredged material or otherwise, are required to be designated by EPA. (e) The statutory requirement (reiterated in Section 228.5(e)) that EPA must, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf, stands little chance of application to dredged material unless EPA takes 3-> active role In the designation of dredge spoil sites. (f) The requirement of periodic evaluation and annual reporting of disposal site impacts, applicable to non-dredged wastes (Section 228.10(a)), does not apply to dredged material. Recommendations: Part 228 should be revised to Impose identical site designation requirements on all ocean dump sites, with the possible exception that groups of dump sites in the same area for unpolluted dredged material might be covered In a single environ- mental Impact statement. -2t- Mlseellaneous Comments and Recommendations 1. Section 228.7 should be revised to make regulation of disposal site use mandatory lr, all cases, and not solely "where necessary." 2. Section 220.3(f) should be revised to authorise incineration of wastes at sea to take place without exception only under research or Interim permits, until specific ocean incineration criteria are promulgated. No special exception should be retained for the benefit of the Shell Chemical Company. 3. Section 227.7(c), which prohibits the dumping of certain wastes containing living organisms, should be made applicable to dredged material. Section 227.9, requiring control of quantities dumped to prevent damage to the environment, should be made applicable to dredsed material. 5. Section 227.10, requiring wastes which may pose serious obstacles to fishing or navigation or a hazard to shoreline or beaches to be dumped only at sites and under conditions which will ensure no such Interference or danger, should be made applicable to dredged material. 6. The exemption in Section 227.8 from LPC requirements for wastes for which "specific criteria are established in Sections 227.11 or 227,12," should be revised to include only Sections 227.11(b) and 227.12, so that containerized wastes expected to rupture c.uickly remain subject to LPC requirements. 7. Section 227.29 (Initial mixing), by setting forth four alternative methods of estimating degrees of mixing, three of which involve the use of complex mathematical models, significantly reduces the likelihood that conservative (environmentally protective) dilution factors will be used. 8. Sections 228.2(c) and 228.2(d) should be revised to require disposal site evaluation and designation studies to consider all pertinent Information, and not merely all pertinent information "available." ------- X to CO -25- 9. The Impact Categories of Section 228.10, the modification procedures of Section 228.11, and the controls to avoid inter- ference with reproductive and migratory cycles of Section 228.1(e)(6)(1), place excessive emphasis on impacts at the disposal site itself, as though dumping Impacts could be expected to be confined to designated dump sites. 10. The Impact Category I criteria of Section 228.10(c)(1) rail to give adequate attention to the problem of bloaccuaulation and foodchaln contamination in their own right, as distinct from impacts on taste or odor or direct toxic effects. 11. Since freshwater sediment may release contaminants more readily at a salt water disposal site than saltwater sediment, the elutriate test procedures of Section 227.13(c) should be revised to require agitation of dredged sediment in disposal site, as well as dredge site, water. 12. Disposal site monitoring should be required of all ocean- dumpers, not, as Section 228.9 specifies, solely where a monitoring program Is "deemed necessary" by EFA or the Corps. 13- The Criteria should be revised to add a provision similar to that of Section 227.8 of the October 1973 Criteria, setting forth procedures for future amendments of the criteria. If EPA regards 30 days as too short a time in which to respond to petitioners, perhaps the time could be lengthened to 60, or even 90, days. Total deletion of this useful provision Is neither necessary nor Justified. 1*. Section 228.11 should be revised to allow modification In disposal site use where the ocean dumping criteria have been erroneously applied, and not merely because of changed circumstances or Category I Impacts. 15. Section 228.10(b)(3), which lists "absence from the disposal site of pollution sensitive biota characteristic or the general area," as an efrect to be considered in evaluating disposal Impact should be revised to include "statistically significant reductions," as well as total absence. 16. Section 227.18(a), which lists the "nature and extent or present recreational and commercial uses of areas which might be affected by the proposed dumping," as a consideration in assessing dumping Impact, should be revised to read "present and potential recreational and commercial uses." For further information, contact: Kenneth S. Xamlet, Counsel National Wildlife Federation 111? Sixteenth Street, N.W. Washington, D.C. 20036 (202) 797-6870 ------- #3 Response to comments received from the National Wildlife Federation (NWF), Washington, D. C. Extensive comments on the regulations and criteria from the NWF were received in three separate documents {Comments No. 3, 32, 42). Many of the same comments were repeated in each of the documents received. Various parts of these comments were discussed in detail with representatives of NWF; in addition, the NWF participated in the October 19-20 technical workshop on the criteria. Because of the copious dialogue that has ensued as a result of these comments and the extensive revisions made in the criteria partly in respone to NWF comments, EPA does not believe it is pertinent to provide extensive responses to all individual comments, particularly when responses to these com- ments are incorporated into the Final EIS and into the redrafted sections of the Criteria. The responses given here are referenced to the numbered comments given in each of the three separate documents provided by NWF. Generally Applicable Comments 3-1, 32-1, 32-2 . The consensus at the technical workshop was that it was not necessary to explicitly define the term "trace contaminants" as long as the basis for regulation was clearly stated and enforceable criteria were set. This has been done in the redraft- ing of section 227. 6. ------- * 3 2 3-2 . The redrafting of section 227. 6 adequately responds to this criticism by making bioassays, measuring direct impacts on the marine environment, the standard test procedure. 3-3 . Since the nature of the special studies must be determined on a case-by-case basis, it is not possible to set a mandatory specific requirement applicable on a nationwide basis. The types of studies required are, therefore, left to the permit- issuing authority. 3-4 . This comment is responded to in the preamble to the regulations. 3-5, 32-3 . This comment has been addressed in the Final EIS. In addition, it should be noted that (a) no responsible scientist has presented evidence to suggest that the four-hour initial mixing period is not reasonable, and (b) the criteria include a provision to use other initial mixing approaches when there is scientific evidence to support a different approach. 3-6, 32-4 . Section 228 sets criteria for the selection and management of ocean dumping sites. These criteria are directed toward determining and regulating long-term and cumulative impacts. H 31 ------- #3 3 Comments Applicable to Dredged Material 3-1, 42-11. B. , 42-III. C . Dredged material is now subject to the same test procedures and criteria as other materials to be dumped. 3-2, 42-III. A . All of Subpart B deals with criteria for determining environmental acceptability of materials for dumping in the marine environment; this applies to all materials, including dredged material. It is obvious that any material not meeting the specified criteria is unacceptable for ocean disposal. Dredged material is treated precisely like other materials in this respect, including the criteria for trace contaminants and the LPC. 3-3 .In the redrafting of sections 227. 6 and 227.13, dredged material is covered by the same criteria as are applied to other materials. Screening procedures based on the source of the material are applied to all wastes prior to testing; e. g., sewage sludge, industrial wastes, and inert insoluble natural materials are screened in accordance with their sources to determine how extensively they need to be tested and what tests shall be applied. 1*1 nr> ------- 4 3-4, 42-111. D . Dredged material disposal sites are subject to designation and management by EPA in accordance with the same criteria used for other sites. Miscellaneous Comments and Recommendations 3-1 , Where only small amounts of innocuous materials are disposed of at a site, extensive manage- ment and monitoring requirements for sites intensively used would be unnecessary and not cost-effective. 3-2 . When intensive research studies have been done on an incineration at sea operation under research or interim permits and there is sufficient data to support a site designation for that activity, there is no reason not to issue a special permit in such a case. 3-3 . Any material dredged from a natural waterway will contain living organisms unless the area is highly polluted to the extent nothing can live there. This section is not intended to apply to such cases. 3-4 . This section has been made applicable to dredged material. 3-5 . This section has been made applicable to dredged material. 3-6 . The criteria specifically state in section 227. 11(a) that wastes containerized only for transport are subject to LPC requirements. H 33 ------- #3 5 3-7 .If accurate data and predictive models are available, it is possible to base regulation on actual effects rather than applying arbitrary protective factors. 3-8 . It is not possible to use information that is not available. 3-9 . All of the five criteria for determining an Impact Category I situation deal with impacts outside the dump- site as well as inside (Section 228. 10(c)(1). 3-10 . Section 228.10(b)(6) lists this as one of the factors to be considered. 3-11 . The revised criteria allow for the use of water from the disposal site in all test procedures, where this is appropriate. 3-12 .In some cases, where the material disposed of is relatively innocuous and in small quantity, monitoring may be of less importance than in other cases, with limited resources available to monitor or to supervise the monitoring efforts of dumpers, it is necessary to have discretionary authority to use the available resources in the most cost-effective way. 3-13 . The provision for amending the criteria is no longer necessary. EPA would certainly consider any advances in knowledge in making future revisions to the criteria. H 34 ------- #3 6 3-14 . This could be done, if necessary, by modify- ing or revoking permits under the provisions of section 223. 2. 3-15 . This is only one of the criteria applied in evaluating disposal impact. "Statistically significant reductions" are included for some species, but it would be far too restrictive to apply this to all considerations. 3-16 . This change has been made. H 35 ------- P. 0. BOX 1814 • PHONE 353-6922 JACKSON, MISSISSIPPI 39205 Aug. 3, 1976 T. A. Wastler, Chief Marine Protection Branch (WH-548) Environmental Protection Agency 401 M. Street, S. W. Washington, D. C. 20460 Dear Mr. Wastler, After reviewing the Federal Register, Part III, Ocean Dumping, the Mississippi Wildlife Federation has the following comments: (1) These standards are a necessary step toward protecting our marine resources. (2) The regulations are excessively open and vague in that they fail to strictly define "trace contaminants," such that proper controls can be maintained over substances that are dumped. (3) Little thought is given to marine life which would be adversely affected by dumping. Assuming that immediate effects are acceptable and also implying that spoil material does not adversely affect marine life is absurd. (4) Controls on dumping permits are not strong enough to truly "control," nor should sewage dumping be continued. There are many other areas where we would take exception, but we feel that these are some of the more important falacies. Thanks for the chance to comment. We hope that EPA will closely scrutinize the weak areas. Sincerely.yours, - ? w 1 i J Louis Fuselier, President Carlton Owen, Executive Director Protecting Our Environment 1 37 ------- H Comments received from the Mississippi Wildlife Federation, Jackson, Mississippi. The consensus of a technical workshop held in Washington, D. C. in October 1976 concerning trace contaminants, among other issues, was that a definition for trace contaminants is not necessary, as long as the basis for regulation is stated and acceptable levels are set. See Appendix G. The bioassays and the elutriate test serve as screening proce- dures for anticipating environmental impact of all dumping, includ- ing dumping of dredged materials. H 30 ------- NATIONAL AUDUBON SOCIETY 950 THIRD AVENUE, NEW YORK, N.Y. 10022 (212) 832-3200 Cable: NATAUDUBON August 4, 1976 Mr. T. A. Wastler Chief, Marine Protection Br£nch (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: The National Audubon Society, one of America's largest citizen conservation organizations endorses and subscribes to comments and recommendations that have been submitted or will be sub- mitted by the National Wildlife Federation on EPA's "Proposed Revised Ocean Dumping Regulations and Criteria," as published in the Federal Register of June 28, 197 6. We have studied with care the analysis of the proposed regula- tions, as prepared by Mr. Kenneth S. Kamlet, Counsel to the National Wildlife Federation. We believe the Federation's analysis is sound and its recommendations practical and environ- mentally necessary. Qincerely, Rarles H. Callison Executive Vice President CHC:rl cc: Mr. Kenneth S. Kamlet Dr. Elvis J. Stahr Ms. Cynthia E. Wilson .H 39 AMERICANS COMMITTED TO CONSERVATION ------- #5 Comments received from National Audoken Society, New York, New York. See response to National Wildlife Federation #3, H 40 ------- DEPARTMENT OF TRANSPORTATION UNITED STATES COAST GUARD phone, 202-755-7938 MAILING ADDRESS; U.S. COASTGUARD (G-WEP-5/73) WASHINGTON. O-C. 20590 5922/2.c 10 AUG 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Oil and Special Materials Control Division Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Mr. Wastler: The concerned offices within the Coast Guard have reviewed EPA's proposed revision of the Ocean Dumping Regulations and Criteria dated 28 June 1976. The following comments apply; 220.1(c)(2); The word "evidenced" is misspelled. 223.2(b); Recommend change to read . . . "in accordance with paragraphs (b) through (h) of 222.3." 224.2(b): The proper reference in Section 220.1 is paragraph (c)(4) instead of (c)(5). 228.12: The Coast Guard withdraws its request that the disposal sites be reoriented to coincide with the LORAN-C time delay line grid. One of the reasons for the original proposal was that it would simplify the design of electronic surveillance equipment. Uncertainties regarding the ability to readjust site boundaries, should future modification to the LORAN-C system occur, make the simplified electronic equipment unac- ceptable. The Coast Guard's electronic Ocean Dumping Surveillance System (0DSS) will, therefore, have the capability to define the dump sites regardless of the LORAN-C grid orientation. We therefore recommend that the disposal sites retain their present location. 229.3(a)(4): Recommend change to read . . . "The dumper shall, no later than ten days prior to the proposed disposal date, notify the . . 229.3(a)(8): Recommend that the emergency exemption clause be added making the paragraph read: "Except in emergency situations, as determined by the U. S. Army Corps of Engineers and/or the U. S. Coast Guard, the Captain-of-the-Port . . ." rt 41 ------- Subj: EPA's Proposed Revision of the Ocean Dumping Regulations and Criteria The Coast Guard has no further comments to offer and appreciates the opportunity to review these proposed regulations. Sincerely, tT P. SOHUBFZiT Captain. U.S. Coast Guard Chief, Harir.f. /irannental Protection Division By direction of the Commandant H 42 ------- DEPARTMENT OF TRANSPORTATION UNITED STATES COAST GUARD MAILING ADDRESS. U.S. COAST GUARD (G-WEP-5/7 3) WASHINGTON. D.C. 20590 phone: 202-755-7938 5922/2,c 26 AUG 19/13 . Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Oil and Special Materials Control Division Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Mr. Wastler; The Coast Guard has previously commented on EPA's proposed revision of the Ocean Dumping Regulations and Criteria. Since our comments of 10 August 1976, another discrepancy in the proposed revision has come to light. Section 228.12 lists an EPA Region I industrial waste site as being located at 42°26,00"N, 70°35'00"W. The Coast and Geodetic Survey chart for the area depicts a dump site in this general area with its center marked by a Coast Guard maintained buoy. The center of the one-mile radius site depicted on the chart is 42°25'42"N, 70°35"00"W. Conversations with members of your staff indicate that the discrepancy may have resulted from rounding off of the geographical coordinates to the nearest minute. It is suggested that the coordinates of the site as depicted on current charts be used. The Coast Guard has no further comments to offer. Sincerely F. P. SCHUSEH2 Captain, U.S. Coast Guard Chief, Jfctrir.? v-jron;- -nt.al on;- 'nt.al Protect ioi< ivj.sic-ji ly direction of tha Cox»a;sdant 43 ------- #6 Comments from the U.S. Coast Guard Headquarters, Washington, D. C. were submitted in two separate items of correspondence dated August 10 and August 26, 1976. Responses are given as follows: Aug. 10, 1976 The first three comments relate to editorial changes and those cor- rections have been made in the redraft. 228.12: The list of dump sites has been changed back to the original non-Loran C orientation. 229. 3(a)(4) and (a)(8); A recommended change has been made in the regulation. Aug. 26, 1976 228.12: The content of the Coast and Geodetic Survey chart is not under the control of EPA. It should be noted that the data on which such charts are based is frequently not representative of current situations. The approved EPA dump sites are those designated in the Federal Register under this Section. H 44 ------- ETHYL CORPORATION Research and Development Department August 12, 1976 PLCA5CADDRESS SCPLT to: P. O. OO* 3M» OATQN ROUGE, UA.7082I CERTIFIED HAIL - RETURN RECEIPT REQUEST Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materi a 1 ; Control Division (WH-548) Environmental Protection Agency 401 M Street, S. W. Washington, D. C. 20460 Dear Sirs: The following comment is respectfully submitted regarding: Ocean Dumping, Proposed Revision of Regulations and Criteria, Federal Register June 28, 1976 (40 CFR Parts 220 through 229). Paragraph 220.3(d) Interim Permits This paragraph states that prior to April 23, 1978, interim permits may be issued. It is not clear as to whether or not interim permits may extend beyond April 23, 1978, if issued prior to that date. In the particular case of the Ethyl Corporation, currently disposing of material under permit in the Gulf of Mexico, we advised Region VI of the Environmental Protection Agency at the March, 26, 1976, public hearing held on our current permit (730D009D) that alternates to ocean dumping were being actively investigated but that it was not practicable to expect that such alternate process could be developed and in operation prior to March 26, 1979• Our material cannot be safely stored. It would appear to be desirable to include in these proposed regulations a statement that would allow for a reasonable extension of the termination date if the Regional Administrator judged that the disposer was actively making a good faith effort to install an alternate disposal system. Yours truly, +0-/-— J. H. Huguet Industrial Conservation Coordinator JHH/jg H 45 ------- #7 In response to the comment received from the Ethyl Corporation, Baton Rouge, Louisiana, paragraph 220. 3(d) has been rewritten to clarify that interim permits for existing dumpers are extendable beyond the April 2 3, 1978 deadline so long as the dumper is able to show he meets the requirements as now stated. Additional information on the subject of interim permits is in the preamble to the regulations. H 4G ------- AMERICAN CYANAMID COMPANY WAYNE, NEW JERSEY OT4TO AREA CODE Z01 ait-1214 CERTIFIED MAIL August 13, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil & Special Materials Control Division (WH5W) Environmental Protection Agency 1+01 M Street S.W. Washington, D.C. 20li60 Dear Sirs: American Cyanamid Company submits the following comments on the proposed revision of regulations arid criteria for ocean dumping appearing in the Federal Register. Vol 111, No 125, June 28, 1976. Section 220.3(d) would place a cutoff date of April 22, 1978 for issuing new interim permits to current dischargers holding such permits. The implementation of these provisions will be a hardship on those facilities not having yet fully developed and operating land based disposal technology. There are numerous examples of legislative and regulatory deadlines that are arbitrarily set without regard to practical and real considerations and must, therefore, be set aside. We urge that any cutoff dates set for ocean disposal should be directly related to the availability of environmentally safe land based disposal techniques. Section 220.3(d) as proposed would prohibit the issuance of an interim permit from an expanded or modified existing industrial facility after the effective date of these regulations and makes no provision for the issuance of a special or other type of permit such as is provided in Section 220.3(d)(1) for disposal of waste from sewage treatment works. Such a restriction is arbitrary and discriminatory against expanding or modified industrial facilities. We object to this arbitrary and discriminatory regulation and strongly urge that it be changed to provide comparable consideration afforded sewage treatment plants. The language in the second paragraph of Section 220.3(d)(2) is not clear as to what is specifically intended. I presume that the intent is that no interim permit will be issued after April 22, 1978 to a new industrial facility or to an expanded industrial facility, the construction of which shall have commenced after the effective date of these regulations. This language may also be interpreted as prohibiting the issuance of an interim permit to a new or expanded facility, the construction of which commenced prior to but is not completed until after the effective date of these regulations. If this second interpretation is the intent then we submit that this is further evidence of an arbitrary and discriminatory action against industrial faci- lities and urge that it be changed to clearly state the intent. EPA regulations H 47 ------- Mr. T. A, Wastler - 2 - August 13, 1976 in other areas clearly state that they are applicable only to facilities such as new sources the construction of which commences after the effective date of such regulations. See Sections 60.2(k) and Uoi.11(e) Title ^0 CFR, It is the intent of the Act (PL92-532) to regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare or amenities or the marine environment, ecological systems or economic potentialities. Regulations authorized under the Act must not close out the use of ocean dumping as a viable means of disposing of wastes by not adequately considering all means of disposal and the total impact on the environment. The proposed regulations are severely and unnecessarily restrictive and could exclude ocean dumping of materials which would have greater adverse environmental impact if land treatment and disposal are required because ocean disposal is prohibited. Section 221.1, application for permits, paragraph (k) requires the applicant for an ocean dumping permit to assess the anticipated environ- mental impact of the dumping on various effects, among these, is the effect on scientific study of the ocean. Such a requirement appears to be very impractical and should be removed. Assessing the environmental impact on scientific study of the ocean is an impractical request and unless the specific scientific studies are defined this requirement could lead to administrative abuses in the form of requirements to study obscure and unrealistic impacts. Further,impact assessments made in this area are likely to be debatable even among experts in this area. Section 227.T would establish limits for specific wastes or waste constituents. Specifically subdivision (a) would allow the dumping of immiscible or slightly soluble liquids in seawater only when they are present in concentrations below their solubility in seawater.. This subsection does not indicate the degree of dilution to be permitted for slightly soluble substances. Because of the high dilution factors that take place in the disposal process and without some indication of permitted dilutions this provision could result in arbitrarily narrow interpretation by administrators that may insist on very low dilution ratios even if no adverse environmental effects could be demonstrated from higher dilution ratios. This is vague as written and must be modified to clearly indicate the intent. Section 227.15(b) requires the evaluation of raw materials and manufacturing or other processes resulting in the waste and whether or not these materials or processes are essential to the provision of the applicant's goods or services when determining the need for ocean dumping. The inclusion of choice of raw materials and process as a consideration in the decision for the need to ocean dump is an invasion of the manu- facturers' business decision rights and duties. These regulations are concerned with the regulation of materials disposed of at sea and not with the raw materials or processes used in producing the products manufactured. U 4ft ------- - 3 - This requirement should "be dropped. There are adequate safeguards in the criteria for dumping and in the application review process to protect ocean waters from environmental damage from waste disposal. These provisions are an an example of over regulation. We urge your careful consideration of these comments. Very truly yours J. H. Rook Regulatory J. H. Rook, Manager Regulatory Affairs Section Environmental Protection Department JHR:tp H 49 ------- #8 The following is in response to comments from the American Cyanamid Company, Wayne, New Jersey. Section 220. 3(d) - See previous response to Ethyl Corporation, #7 Section 221. 1 - The Act specifically states that one of the factors to be considered in evaluating permit applications is the anticipated impact of the dumping on other uses of the oceans, including scientific study. It is appropriate that the applicant should supply the informa- tion required by the statute. Section 227. 7 - The criteria clearly specify that the emissibles are slightly soluble materials and are permitted only when their concentra- tions in the waste fall below their solubility limits in seawater. These values are readily available from standard chemical tables and we do not believe this provision needs any further clarification. Section 227.15 - There are many factors to be considered in determining the need for dumping. While it is true that EPA staff would not be in a position to go into an individual plant and specify certain process changes in an operating plan, it is also true that in many cases plant operations can be tightened up so as to reduce the total amount of waste material. There have been cases in which a change of raw materials has brought about environmental and economic benefits to the company involved. This pro- vision is parallel in many respects to the provision in the Federal Water Pollution Act which requires the use of best practical treatment and best available technology by certain dates. We feel that the retention of this provision provides a parallelism with other water pollution control legislation. In addition, the purpose of the regulation is to deal with the waste materials being dumped. One way to deal with this is to make sure every effort is made to eliminate these materials at the source, if possible. H 50 ------- STATE Of CALIFORNIA—RESOURCES AGENCY ¦ EDMUND G, BROWN JR., Go»»rnoi a DEPARTMENT OF FISH AND GAME 1416 NINTH STREET y.ACRAMSNTO, CALIFORNIA 938)4 916) 445-3531 August 16, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Dear Mr. Wastler: Your proposed revisions of regulations and criteria for ocean dumping, as published in Vol. 41 No. 125 (Monday, June 28, 1976) of the Federal Register have been reviewed. Overall, we believe that the proposed regulations and criteria offer significant protection to living marine resources, and we support their implementation. Nevertheless, we also believe the degree of protection afforded to marine life could be improved through incorporation of the following comments and recommendations into the proposed regulations and criteria: 1. Complexity of Regulations: As noted la your introduction, the regu- lations at first glance appear to be long and complicated. We believe that a short, simple summary of the regulations and criteria would go a long way towards increasing the understanding and cooper- ation of the groups and persons affected by them. 2. Elutriate Test: While the concept of an elutriate test seems valid, we question the validity of the 0.45 micron filtration of the elutriate which is presently specified. This filtration removes fine particulate material to which pollutants such as heavy metals and pesticides adhere. These particulates are of special concern because they have remained suspended in the water column after the settling and centrifugation of the sample. These particulates are therefore likely to remain available to filter feeding marine organisms for some time following dredging and disposal operations, and should not be excluded from analysis in the elutriate test by filtration. We recommend that filtration be eliminated from the elutriate teat. 3. Trace Contaminate Definition (Section 227.6): The failure to define "trace contaminants" is a shortcoming of the proposed regulations. The United States is obliged under law to prevent the ocean dumping H 51 ------- Mr, X. A. Wastler -2- August 16j 1976 of mercury, cadmium, oil and grease, and organohalogeus in more than trace amounts. Specific numerical limits are prescribed for these substances for "special permits" in Section 227.6(b). Section 227.6 should be revised to make the criteria of subsection (b) the basis for defining "trace contaminants" rather than merely the basis for determining whether "special" ocean dumping permits may be issued. 4. The mercury and cadmium limits of Section 227.6(b) fail to adequately protect the marine environment. The proposed cadmium limit is 27,000 times higher than the ambient ocean levels of cadmium and 300 times the level regarded by the National Academy of Sciences (HAS) as constituting "a hazard" in the marine environment. The mercury limit is 15,000 times the open ocean level and the recommended flAS "hazard" level. While we realize that mercury and cadmiuta occur naturally and that, in theory, waste dis- charges which contain these contaminants should be diluted rapidly, it is also true that these elements are persistent poisons capable of being concentrated and magnified in the food chain. Therefore, we recommend that the liquid-phase limits for mercury and cadmium be changed to 1.5 ug/1 (ug/kg) and .05 mg/1 (mg/kg) respectively, 5. Monitoring Deep Water Disposal Sites (Section 228): Deep ocean dis- posal sites are more difficult to monitor than shallow water sites. However, we believe that in many cases deep ocean sites are preferable to shallow water sites because of the apparent lower value of the marine communities at the deep sites. We therefore recommend against the selection of a shallow water disposal site, on the basis of ease of monitoring, when a deep ocean site is a reasonable alternative. 6. Limits for specific wastes (Section 227.7): We recommend that Section 227.7(d) require that the pH of the receiving waters not change by more than 0.2 pH unit as a result of ocean dumping of acidic or alkaline wastes. The presently allowed 10% change is undesirably large in view of the high resistance of ocean waters to pH changes and the nearly constant pH values to which marine organisms are acclimated. In addition, we recommend that the presently allowed 25% depression in dissolved oxygen concentration be strengthened to require no more than a 10% depression in dissolved oxygen concentration as a result of ocean dumping. As low levels of dissolved oxygen can act synergistically to increase the toxicity of other pollutants which may be present, decreases in dissolved oxygen concentration are very undesirable during ocean dumping operations. This concludes our comments and recommendations. Please don't hesitate to contact us should you desire additional information or elaboration. Sincerely, Director cc: National Wildlife Federation ------- #9 The following responses to comments from the State of California Department of Fish and Game, Sacramento, Calif, , are submitted in corresponding numerical order. 1. These regulations cover a very complex regulatory process established by the Act, The Final EIS and the preamble to the regulations both summarize the regulations as far as possible. A greater degree of summarization would not be informative. 2. The revised criteria use the elutriate test after filtration only as an indicator of soluble components. The effect of particulates is determined by a bioassay test, as is the effect of the solid phase. 3. The trace contaminants section has been completely revised based on these and other comments. The rationale for the lack of a defini- tion at this time is presented in the preamble and in the discussion on this section in the Final EIS. 4. In the redraft of section 227. 6, numerical limits are related to the applicable marine water quality criteria which are based on ex- tensive bioassay work and those in the suspended particulate and solid phases are based on the direct measurement of impact by bioassay techniques, all of which would provide a direct and adequate measure of the impact of these materials on the marine environment. 5. The Act requires that disposal sites off the Continental Shelf be used where feasible. There is some disagreement among marine scientists on the probable long-range impacts at such sites. EPA does not believe disposal should be permitted under conditions where the impacts cannot be adequately monitored to meet the requirements of the Act. rl 53 ------- #9 2 6. Changes in the pH of the receiving water is not a satisfactory indicator. Total impact involved in the neutralization of acidic or alkaline wastes would be reflected in a change in acidity and/or alkalinity of the receiving waters, not the pH. It would be extremely difficult to predict a change in pH stoichiometric ally from the com- position, acidity or alkalinity of a waste. The 10 percent allowable change in total acidity or alkalinity should not be interpreted as an equivalent allowance in pH change. EPA would be glad to consider any facts presented to support a different level than 10 percent in this case, or 25 percent for dissolved oxygen. These comments, however, merely present an opinion not supported by factual information. Therefore, there is no basis for changing the existing values. rt 54 ------- BERNARD C.SMITH IW DISTRICT CHAIRMAN COMMITTEE ON CONSERVATION AND RECREATION THE SENATE STATE OF NEW YORK ALBANY 1222-4 August 23, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (Vfh-548) Environmental Protection Agency 401 M Street, s.w. Washington, D.C. 20460 Dear Mr. wastler: I have reviewed the Environmental Protection Agency's proposed revision of regulations and criteria relative to ocean dumping (40 CFR Parts 220 Through 229) as published in the Federal Register on June 28, 1976. Enclosed herewith please find my comments on these proposed revisions. I respectfully submit these observations for your consideration in recognition of the value of meaningful dialogue between the various levels of govern- ment, industries, citizens and elected officials who share similar concerns about important societal issues such as those raised by the need for proper control of materials to be disposed of in our oceans. As Chairman of the New York State Senate Standing Committee on Conservation, Recreation and the Environment, Chairman of our Senate Select Committee on Interstate Cooperation and one of New York's representatives to the Atlantic States Marine Fisheries Commission, you may be assured of my continuing interest in and efforts on behalf of an environmentally and economically balanced approach to management of our marine coastal resources. Sincerely, BERNARD C. SMITH BCS:see Enclosures H 55 ------- Comments submitted by the Honorable Bernard C. Smith, Chairman, New York State Senate Standing Committee on Conservation, Recreation, and the Environment, Chairman NYS Senate Select Committee on Interstate Cooperation, to the United States Environmental Protection Agency on the EPA's proposed revision of their regulations and ctiteria governing ocean dumping. While a great deal of thought and consideration has been given by EPA to a variety of pertinent issues concerning ocean dumping, (most notably, the factors to be considered in determining a specific need for ocean dumping, the impact of dumping on uses of the ocean, and the requirement accompanying interim permits that permittees prepare a plan aimed toward an elimination of their ocean dumping or full compliance with acceptable ocean waste disposal standards) I believe that our interest in an improved public policy in this area would be served best by placing EPA's proposed revisions in the proper context of past experience and recent developments and by issuing, where necessary, sharp criticisms with constructive intent. As I indicated earlier this year in my statement to the United States EPA (Region II) hearing on its draft "Environmental Impact Statement on the Ocean Dumping of Sewage Sludge in .the New York Bight" the EPA has reversed its previous position which called for our New York municipalities to move their dump sites further out to sea during the latter half of this year and to begin the phase out of their sewage sludge ocean dumping altogether. At that time I underscored the need for and attainability of much more affirmative action in this direction than EPA seems willing to take. How many more beaches will have to be closed to our long Island residents, friends and visitors because of unidentifiable putrescibles and other suspected health hazards before EPS will take the firm stand on this issue that those of us concerned with sound environmental management programs have been advocating for years? Move the current sewage sludge dump site to an alternative location further offshore; the need is now, the cost is justifiable, the risks demand it. H 56 ------- -2- Already we have seen in the proposed revisions the harbinger of future policy vacillation. Hopefully, our Regional Administrator for EPA shall show judicious restraint in the exercise of his executive prerogative to grant compliance date exceptions based on his determination that an applicant has given "his best efforts" or "attempted in good faith" to meet the treatment requirements and ocean dumping phase out schedules established pursuant to the revised regulations. The Camp, Dresser and McKee Technical Investigation of Alternatives for New York-New Jersey Metropolitan Area Sewage Sludge Disposal Management Program prepared for the Interstate Sanitation Commission recommends sewage sludge disposal by pyrolysis at six regional treatment facilities. However, the report suggests that construction of these facilities may not be completed by EPA's April 23, 1981. deadline for ocean dumping phaseout. While EPA. has recently contracted for an engineering feasibility study of pyrolysis plants, I hope that the Agency will see fit to seek vastly augmented funding levels for actual construction and commercial operation of this most viable disposal alternative and require its use at currently exempt sewage treatment facilities such as new ones or expanded or modified facilities operated by municipalities which are now permitted to dump wastes in our oceans. There are two other issues specifically raised by the proposed regulations which I would like to address at this time. First is the issue of states' rights relative to notice of applications and hearing procedures, sections 222.3 and 222.10, respectively. I believe that our states' interests are immediate and direct concerning applications for the various sewage sludge disposal permits and that the federal government owes it to the states to provide timely notification of any pending determinations and failing such notification, at least in the case of standing requests, any subsequeht administrative proceeding should be invalidated. Similarly, a state's right to request an adjudicatory hearing 57 ------- -3- should be preserved regardless of whether the state's authorized representative participated in the initial public hearing on the permit application. A state may not feel compelled to participate in the initial public hearing but, upon review of the Presiding Officer's recommendations, costly court action could result without a somewhat expanded mechanism for appeal to an adjudicatory hearing. I am prepared to seek legislation for New York State which would involve our local governments and regional planning bodies in a parallel scheme for inclusion in the federal notice and hearing procedures, I believe a second specific issue raised by the proposed regulations deserves closer attention. Certainly, acceptable levels of dispersal concentrations should be maintained during the period of initial mixing, as defined by Section 227.29, but equally certain is our unfortunate experience which documents that long after the fact of ocean dumping, sewage sludge migration has plagued our Island's valuable tourist industry and beach-going communities. Sensitive criteria should be established for implementation of an expanded, ongoing program for monitoring disposal sites with specific roles assigned to permittees, various governmental agencies and other interested parties. This program should be supplemented by contingency plans for emergency situations. In closing, I commend these observations to your attention fully cognizant of the monumental tasks and responsibilities facing the Environmental Protection Agency. I am confident of our mutual commitment to accept and meet the challenge of preservation posed by the new horizon of resource development and utilization. Thank, you for your consideration. H 58 ------- #10 The following response is offered in reply to comments received from the Honorable Bernard C. Smith, Chairman of the New York State Senate Standing Committee on Conservation, Recreation, and the Environment. These comments attribute the closing of the Long Island and New Jersey beaches to sludge dumping in the New York Bight. The best scientific evidence indicates that this is certainly not the case. Appendix F of this document provides a report on the fish kills off the New Jersey beaches. Another report, prepared by NOAA, on the New York Bight situation as part of the EPA EIS on Sludge Dumping in the New York Bight states that even if the sludge dumping at the present site were stopped, there would be no noticeable change in conditions in the Bight itself. The problem on the Long Island and New Jersey beaches during the summer of 1976 was the result of insufficient and inadequate sewage treatment in the New Jersey and New York Metropolitan areas. Initial mixing as defined in Section 227.29, has no bearing on the potential for material to migrate from a dump site to other areas. Rather, this is a matter of the location of the dump site and far field diffusing characteristics of the ocean waters near the site. Again, we point out the lack of evidence to prove the migration of sewage sludge from the dump site to the Long Island beaches; in fact, the evidence is all to the contrary. H 59 ------- AMERICAN LITTORAL SOCIETY SANDY HOOK. • HIGHLANDS, NEW JERSEY 07732 • 201-291-0055 August 23, 1976 Mr. T.A. Wastler Chief, Marine Protection Branch Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: Attached are the comments of the American Littoral Society on EPA1s "Proposed Revised Ocean Dumping Regulations and Criteria." Our remarks are influenced, naturally, by the disastrous events occurring in New Jersey waters this summer, a massive oxygen deficiency which we blame in major part on the casual dumping of some 11 million tons of sludge and spoils in the New York Bight. It is clear that the Bight's two major dump sites should be moved offshore immediately. Even the draft EIS on Ocean Dumping of Sewage Sludge in the New York Bight (February 1976) states that low dissolved oxygens can and should be monitored around the dump site and recommends that the alternate northern dump site be readied for sludge disposal if needed. Our attached comments stress those points: select an al- ternate site and move the material whenever dissolved oxygen drops below 3 ppm. We also join in endorsing the comments of the National Wild- life Federation. Surf clams and lobsters have suffered tremend- ous losses in New Jersey waters this summer. Loss of another year class could depress these fisheries for a decade. Sincerely, D.W. Bennett Executive Director H 61 ------- AMERICAN LITTORAL SOCIETY V "Jk Sludi, O.d C/ ¦ ¦X 'JKK (J /l:-,0c Jj------- 2. in seasonal periods of low oxygen than in periods of normal oxygen levels. We .ilieve dumping should cease in a specific area and be shifted to an alternate area when the bottom waters reach a dissolved oxygen content of 3 ppm. 227.18 Impact of Proposed Dumping Factors Considered. This section is so written that in an area now partly totally destroyed by dumping, the "destroyed" area becomes the norm against which future decisions are made. The illogic of this could easily lead one to select a polluted harbor as a potential dump site because not much more could go wrong by the addition of more waste. One of the factors we feel should be added to the list is the chronic effect of the loading of accumulated organic material on the environment. Specific limits should be placed on the building of oxidizable carbon in the immediate and adjacent benthic regions. 228.4 Procedures for Designation of Sites. We believe a section should be added mandating EPA to name alternate sites in areas where the initial choices lie in highly stressed waters such as the Region II sludge site. Furthermore, EPA should make it clear, that, upon short notice, it can change the dump site from the initial to the alternate site either on a temporary or permanent basis. 228.6 Specific Criteria for Site Selection. Addition of {12} The capability of the water column at the immediate site and the adjacent surrounding to absorb the disposed material without the depression of dissolved oxygen content below 3 ppm irrespective of season. 228.9 Disposal Site Monitoring Monitoring of sites in critical areas such as the New York Bight should * 63 ------- 3. be mandatory, not discretionary? should be paid for by those who dump there and should be conducted by independent non-federal agencies reporting directly to EPA. Data from such monitoring should be readily available to the public. The monitoring program should be so constructed so that considerably in- creased monitoring activity can be carried on during critical periods. Accomodation should be made for seasonal periodicity and specific events. 228.13 Guidelines for Ocean Disposal. (3) Nature of bottom. Measurements of carbon and its ease of bio- degradability should be made, e.g. ratios such as total carbohydrates to total organic carbon. David K. Bulloch President American Littoral Society H 64 ------- #11 Response to comments received from the American Littoral Society, Highlands, New Jersey. These comments attribute the problems along the Long Island and New Jersey shores during the summer of 1976 to sludge dumping in the New York Bight. The best available scientific evidence (see Appendix F, for example) clearly shows that the major cause of the problems was the discharge of untreated or poorly treated sewage, land runoff through rivers, and the dumping of garbage and trash into rivers and the ocean. These sources of waste are not subject to regulation under the Ocean Dumping Act. 227. 4 - EPA's intent in managing ocean disposal sites is clearly stated in Section 228. Those sites which do not meet the require- ments of the criteria for approval for continuing use will be phased out as rapidly as possible. 227. 7 - Various areas of the ocean bottom waters vary significantly in the amount of dissolved oxygen present, therefore, we believe a significant numerical limit can not be placed on the amount of dissolved oxygen which may be present. The regulation as stated allows calcula- tions based on standard biochemical degradation tests as an estimate of how much depression in dissolved oxygen would occur with the dis- charge in certain wastes. It would be impossible to develop a regulation which was tied to the amount of oxygen present at a dump site since this does indeed vary seasonally, and there is no way to predict for a specific period of dumping exactly what the dissolved oxygen would be at such a site. H 65 ------- 0 11 227.18 - We disagree completely with this comment. Section 227.18 deals with recreational and esthetic values and economic values. Obviously, if an area has been destroyed to the extent that it can no longer be used, this would be one of the factors taken into considera- tion in making the determination under'this section, but no where in this section does it deal with the concept of regarding conditions at the dump site as being a norm. In fact, in 227.18(b) it states that the existing water quality and nature and extent of disposal activities in the areas which might be affected by the proposed dumping is a significant factor to be taken into account. 228. 4 - All of the provisions suggested are implicit in the authority of EPA to modify and revoke permits. Further, specific language changes are not needed to achieve this. 228. 6 - This comment is adequately answered above in the discussion on dissolved oxygen. 228. .9 - The discretionary authority as incorporated in the regulation permits EPA to do what is necessary in each case. A blanket require- ment such as suggested here would lead to large expenditure of funds without achieving useful results. 228.13 - There may be many other factors, in addition to those listed in the the criteria, which should be considered in a particular case. We do not believe these guidelines should present all possible constitu- ents to be subject to analysis in particular cases. These are to provide general guidance and for the planning of baseline surveys. H 66 ------- Senate of Maryland ANNAPOLIS, MARYLAND 2I<40<4 C. A. Porter Hopkins STATE SENATOR 9TH LEGISLATIVE DISTRICT BALTIMORE. CARROLL ft HARFORD Annapolis Office* SENATE OFFICE BUILDING ROOM 404 PHONEi 267*3781 2 3 August 1976 Home Address* palls road GLYNDON. MARYLAND 21071 Mr. T. A. Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: In my capacity as a member of the Maryland General Assembly and a Maryland Member of the Atlantic States Marine Fisheries Commission, I recently had the opportunity to re- view the above-captioned Regulations and Criteria that have been proposed by the Environmental Protection Agency. As you are aware, these Regulations and Criteria were published in the Federal Register, Volume 41, Number 125, Monday, June 28, 1976. It is my desire to note at the outset of this letter that the driving force behind my review of the lengthy, comprehensive and complicated Regulations and Criteria was not only my compelling interest in natural resources but also some recent unfortunate events that have come to my attention. The events of which I speak are (i) the sludge and sewage that recently covered 100 miles of beach along the South Shore of Long Island- and (ii) the recent EPA denial of Camden, New Jersey's request to dump raw sewage forty miles east of Oce^n City. Because of the sludge along its shoreline, Long Island's multi-million dollar tourist and recreation industry faced the prospect of financial troubles with most ocean beaches closed on July 4, 1976. Also threatened was the shellfish industry in New York. Because of the sludge, Governor Hugh L. Carey declared the Long Island counties of Nassau and Suffolk disas- ter areas and asked President Ford for federal funds to help clean up 100 miles of sludge and sewage-covered beach along the RE: Proposed Revision of Regulations and Criteria for Ocean Dumping H 67 ------- Mr. T. A. Wastier -2- 23 August 1976 South Shore. While the source of the sludge is still unknown, it seems a fairly conservative statement to say that ocean dump- ing played at least some part. I commend the EPA for denying the dumping permit requested by Camden, New Jersey. The denial says to all of us in the State of Maryland that EPA Region III, which held the hearing, recog- nizes the threats to Ocean City and Maryland that the granting of such a permit would have been. The denial goes a long way in telling the citizens of the State of Maryland that the EPA is interested in Maryland enough to do what is possible to prevent an occurrence in Maryland similar to the one in Long Island. While I am pleased with the reprieve given Maryland by the EPA, I am equally concerned about the motives and lack of responsibil- ity behind Camden, New Jersey's permit request. Philadelphia also dumps off the coast of Maryland. Philadelphia's sludge, however, is partially treated. Camden's sewage wastes, on the other hand, are not even subjected to treatments designed to kill bacteria and viruses. The sludge contains human wastes, carcino- genic poly-chlorinated biphenyls as well as toxic chemicals and metals. I am shocked that the officials of Camden, New Jersey would even consider making a request to dump such untreated sewage so close to the popular and .thriving coastal towns of Maryland and Delaware. In general, my impression of the proposed Regulations and Criteria are that they should provide a substantial improvement in the ocean dumping permit process once they are adopted. The proposed Regulations and Criteria go a long way in prescribing and clarifying the procedures that will be followed in the permit process and the criteria to be applied in evaluating applications for a permit. The proposed Regulations and Criteria will be a definite improvement in that they attempt to comprehensively address the regulations and demarcation of ocean dumping sites, and also provide that the subject sites will be monitored to determine the environmental impact on these sites over a period of time. My specific comments on the proposed Regulations and Criteria are as follows: (1) Section 222.3. This Section is ex- tremely important because it provides for notice of applications and prescribes what the contents of said notices will be. As the EPA becomes more and more familiar with ocean dumping and its environmental impact, this Section should be changed from time to time to be kept constantly up to date. I say this because ocean dumping is something that affects all of us and all of us should take H 60 ------- Mr. T. A. Wastier -3- 23 August 1976 an interest in the permit process. The more comprehensive and informative the notices are, the more responsive the input from the public and governmental agencies will be to the prob- lem at hand. (2) Section 222.11. The first sentence of Section 222.11(a) provides as follows; Any interested person may at any time prior to the commencement of the hear- ing submit to the Presiding Officer a request to be admitted as a party. (emphasis supplied) As you are aware, the problem of standing has become an extremely complex and burden- some issue in environmental litigation and administrative procedure. For this reason, I feel that it would be beneficial to de- fine "interested person" in Section 220.2 of the proposed Rules. (3) Section 226.1(a). This Section pro- vide s~thaFlihe—Regional Administrator may assess a civil penalty of not more than $50,000 for each violation of the Act. While$50,000 is obviously a very sub- stantial figure, I am certain that that amount is a very small sum to some of the parties engaged in ocean dumping. I would suggest that a provision be added to the Civil Penalties Section of the proposed Rules that would provide for a penalty of the greater of $50,000, or the amount that would be required to reverse the environmental impact of an illegal dumping, if the dumping is a will- ful and knowing violation of the Act. (4) Section 227.14 - 227.16. These Sections provide for the determination of the need for ocean dumping. In my mind, these Sections are extremely im- portant and should be constantly modi- fied to take advantage of the most re- cent and advanced scientific develop- ments in waste disposal. These Sections and Section 221.l(j), which prescribes the inclusion in applications for permits of a statement of the need for proposed H 69 ------- Mr. T. A. Wastler -4- 23 August 1976 dumping and alternative means avail- able other than ocean dumping, should be enforced with great enthusiasm and zeal by the EPA. When an alternative means of dumping is available that would not have the environmental impact of ocean dumping, the permit for ocean dumping should be denied. (5) Section 228.10. This Section pro- vides for the evaluation of disposal impact. In light of other statements in the proposed Rules that "the ability to accurately assess the environmental effects of ocean disposal is dependent upon the generation of accurate environ- mental data," it is my feeling that this Section will become the heart of the Act and must be constantly exercised. Thank you for your time in considering my comments in this letter. I would like to be advised of any amendments or modifi- cations of the proposed Regulations and Criteria. I also urge their early adoption and enforcement. Very truly yours CAP:bw H 70 ------- m The following is in response to comments received from Senator C. A. Porter Hopkins, of the Maryland State Senate, Annapolis, Maryland. These comments attribute the problems along the Long Island and New Jersey shores during the summer of 1976 to sludge dump- ing in the New York Bight. The best available scientific evidence (see Appendix F, for example) clearly shows that this is not the case, but that the major cause of the problems was the discharge of untreated or poorly treated sewage, land runoff through rivers, and the dumping of garbage and trash into rivers and the ocean. These sources of waste are not subject to regulation under the Ocean Dumping Act. 1. 222. 3 - The regulations may be amended in the future as circumstances warrant. 2. 222. 11 - This suggestion has been accepted. 3. 226.1(a) - The$50, 000 limit for a penalty is a statutory pro- vision of the Ocean Dumping Act. 4. 227.14 - 227. 16 - The suggestions made in this comment are reflective of the policy generally used by EPA in determining whether to issue or deny ocean dumping permits. They may be modified as circumstances warrant. 5* 228. 10 - This Section is indeed a key part of the regulation. H *7'1 * 4 x ------- 3733 Dunbarton Drive Birmingham, Alabama 35223 August 21, 1976 §Ir. T.A. itfastler, Chief Marine Protection Branch (WH-51+8) Environmental Protection Agency UOl M Street, S.tf. Washington, D.C. 201^60 Dear Mr. Wastler: Mr. James W, Reader, President of the Alabama Wildlife Federation, asked me to comment on the proposed regulations for dumping wastes in the ocean. I particularly want to request your close consideration of the comments being sent you by the National Wildlife Federation, I have seen s draft of their comments. They are well thought out and very much in the beat interests of maintaining the quality of the ocean eco- system. The whole matter of rivers and oceans as receptacles for dumping wastes is daily becoming more serious. The oceans are expected to pro- vide much of the world's food, and yet the ocean catch has leveled off despite the use of more and more effort and sophisticated methods of "harvesting" the oceans. Surely, this is reason enough to adopt ex- treme measures for preventing further contamination. Progress is being made, but probably too slowly, toward requiring closed circuits for manufacturing operations. With adequate efforts on the part of industry, wastes can be reduced almost to zero. The costs must be borne, whatever they are, because the alternative is progress- ively more degradation with disastrous consequences to the biosystem and humanity. Manufacturers who discharge toxic metals like lead, cadmium, mer- cury, and chromium have access to effective new systems with ion-exchange resins, which can purify effluent streams at low cost. Those that pro- duce or discard toxic halogenated hydrocarbons must probably inciner- ate, According to recent data, Toxaphene is harmful to catfish at a concentration of 37 parts per trillion. Municipal wastes may be leas harmful immediately if they are rea- sonably disposed. However, ocean dumping should be phased out as soon as possible. Land disposal of municipal wastes is excellent for rela- tively small cities. Even Chicago is putting some of its sludge on abandoned strip mines in Southern Illinois. Perhaps New York could send their sludge to the mines that furnish their coal. It may not cost as much as ocean dumping if they use the coal haulers for the re- turn trip. Two possibilities may be worth considering to lessen the hazard of ocean dumping in the time before you can actually terminate it. One is to choose those regions of ocean that are known to be excep- tionally low in pelagic fish. Another is to use long discharge hoses to release the materials at great depths. It would seem better to make 8ll discharges over the abyssal depths rather than over any con- tinental shelf. H 73 ------- lour efforts to terminate ocean dumping and work toward zero discharge of hazardous wastes will be applauded throughout the world. SPA is the moat potent force for environmental quality in the U.S., and we want to support you in working out reasonable solutions. Sincerely yours, Robert E. Surks, Jr. H 74 ------- #13 This response is offered to comments from the Alabama Wildlife Federation, Birmingham, Alabama. The comments from the National Wildlife Federation (#3) have received most careful consideration and these responses are presented in conjunction with those comments. Recycling of wastes is an important consideration in the EPA evaluation of possible alternatives to ocean dumping of any waste. Several points in the criteria specifically require that such a consideration be made. Land disposal is also regarded as an alter- native that should be carefully considered. However, the method and location of such disposal must be determined on a case-by-case basis. The criteria of Section 228 explicitly state the factors to be con- sidered in selecting ocean dumping sites and the method of disposal. H 75 ------- CALIFORNIA NATURAL RESOURCES FEDERATION Affiliated with the National Wildlife Federation President Vice Prwidcnl SecrcUry.Trttsurer VERNON J, SMITH MR. BUZZ FEUSHANS RUDOLPH J. H. SCHAFlR August 2k, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch, (WH-5^8) Environmental Protection Agency *»01 M Street, S. W. Washington, D. C20^60 Oea r Mr. Was tier: This letter is in response to the Proposed Revision of Regu- lations and Criteria for OCEAN DUMPING which appeared in the June 28, 1976 Federal Register. California Natural Resources Federation, the California affil- iate of the National Wildlife Federation endorses the suggestions on ocean dumping submitted to EPA by the National Wildlife fede ra t i on. As a layman volunteer conservation education organization, we suggest the regulations be made available in a shortened and simplified version so ordinary citizens might comprehend and understand the regulations and criteria. Effective enforcement of the regulations requires understanding and cooperation of the persons and groups effected by them, and an effort should be made to bring about this understanding. |n reference to Section 228 in the selection of dumping sites, we believe shallow water sites are often more biologically pro- ductive than are deep water sites, and for that reason we urge against the selection of shallow water sites when the basis of selection Is for the ease of monitoring. We prefer the selection of deep water sites generally because of possible effects upon biological produc t i vi ty on the shallow water sites due to dumping of foreign materials. The trace contaminate definition (Section 227.6) fails to define ''trace con tajiji nan ts"--a serious shortcoming which would make it ^possible to enforce the prohibition against ocean dumping of tax Ic "b1ack-1 1st" substances. Regarding Section 227.7, we believe that the pH change allowable, 10 percent, to be too great inasmuch as marine organisms are characteristically acclimated to narrow limits of pH values. Our suggestion is that the receiving waters not change by more 2775 Cottage Way Suite No. 39 Sacramento, CA 9582S Phi (916)483-1125 H 77 ------- Mr. T. A. Was 11e r Washington, D.C. August 2k, 1976 Page Two than 0.2 pH unit as a result of dumping either acidic or alkaline wastes. Further, it is suggested that the pre- sently allowed 25 percent depression in dissolved oxygen concentration as a result of ocean dumping be made more restrictive. A maximum depression of 12 percent in dis- solved oxygen would more nearly protect marine organisms. In general, describing the evaluation of dumping impacts of dredged material in terms of effects on water quality rather than upon the possible effects of organisms could result in destruction of important bottom-dwelling bio- logical communities, which in turn would have impacts up- on other communities of organisms. It is suggested that the welfare of specific biological forms be considered as a part of the criteria. Related to this, treating dredge spoil in a different manner than ocean disposal sites for other materials could cause a harmful environment for cer tain ocean organisms. California Natural Resources Federation is aware that the major ocean dumping activity off the California coast at this time is primarily dredge spoil. We suggest that the public be frequently consulted on this matter and that al ternate sites be constantly under study. S i nee rely, Vernon Smi th President WLR:klf cc : National Wildlife Federation ------- This suggested letter concerning ocean dumping regulations was written by Bill Reavley for Vern Smith's signature. It is due In the EPA office In Washington on August 27, 1976. Materials for reference for this letter on file in this office Include: (1) Memo to State Affiliates in Coastal States from Dr. Thomas L. Kimball, dated July 12, 1976. (2) Letter to William Reavley from Mr. Kenneth S. Kamlet, dated August 13, 1976, and (3) Letter to Mr. T. A. Was t1er, Environmental Protection Agency, Washington, D.C. from Mr. E.C. Fullerton, California Department of Fish and Game, dated August 16, 1976. In addition, Reavley met with Mr. Robert B. Haussler, Associate Water Quality Biologist for the California Department of Fish and Game to discuss ocean dumping regulations as they refer to California. * I H 7S ------- #14 These responses are offered to comments received from the California Natural Resources Federation, Sacramento, California. The regulations are summarized and discussed in the preamble and in the Final EIS. Further summarization would not be informative to those affected by them. Section 228 Sections 228. 5 and 228. 6 specify criteria for the selection of sites. Many factors are considered in site selection, including the feasibility of using sites off the Continental Shelf. The evaluation of dumping impacts for dredged material sites by EPA is based on the same criteria as for other sites. Section 227. 6 This Section has been redrafted in response to many comments, including those presented at a technical workshop on the criteria (Appendix F). Section 227. 7(d) The allowable ten percent change referred to in this section is for a change in acidity or alkalinity, not in pH. We believe this amount of change is perfectly compatible with protecting the environment from localized changes in pH. H 80 ------- / V \ GENERAL COUNSEL OF THE UNITED STATES DEPARTMENT OF COMMERCE Washngton. D.C. 20230 AUG 2 5 1976 Honorable Alvin L. Altu Assistant Administrator for Planning and Management Environmental Protection Agency Washington, D. C. 20460 Dear Mr. Aim: This is in further response to your request for the views of the Department of Commerce concerning EPA's proposed revi- sion of Ocean Dumping Regulations and Criteria issued pursuant to Title I of the Marine Protection, Research and Sanctuaries Act of 1972. We are forwarding for your consideration the enclosed appendix of technical comments which we have just received from the National Marine Fisheries Service's Environmental Assessment Division. These comments are principally concerned with the level of trace contaminants for cadmium and cadmium compounds that is proposed in Section 227.6 (b) (2). The recommendation is made, on the basis of an examination of recent studies on the toxic level of cadmium concentrations in fish, that this proposed level should be decreased from .6 mg/kg to .2 mg/kg. References are to the regulations published in the June 28, 1976 Federal Register. (41 FR 26644 - 26667) We appreciate your attention to the enclosed material. 1 Assistant General Counsel for Legislation to till y» JrY-tTC Enclosure i H 81 ------- Ai'P!~:i)ix or tkcii:;:ical comments Since submitting our previous cowmntst wo luive bocoiao aware of two wore; studies con- ducted on cadmium uptake by fish larvae. Reference; to these have been added to further justify our recommendation to lower the al .lovable cadmium concentration in the w aten. In Section 2 2 0.1, Paragraph (e) (4) /p. 26G49, colunn 1_/ should have the statement "... safeguard human life so that the emergency coemption could never be invoked for safeguarding any other forms; of life. In Section 222.3, Paragraph (i) /p. 26651, column 3/ should be revised to exclude paragraph (y) from the exemption since the Pish and Wildlife Coordination Act requires, in Section 602(a), that any federal department or agency proposing to issue a permit that, among o titer things, will modify a body of water "first shall con suit" (emphasis added) with the Federal and State fish and wildlife agencies. Such prior consultation would not have been accomplished if those fish and wildlife agencies had not, at least, received a copy of the public notice. Also, this ts reinforced by Sect. 105 (e) of the Marine Protection, Research and Sanctuaries Act of 1972. t In Section 224.2, Paragraph (b) /pp. 26654-5, columns 3^1/ should have the following sentences added: "Such description shall explain how human life at sea was in danger and how the emergency dumping reduced that danger. If the material dumped included containers, the vessel owner or operator shall immediately request the U.S. Coast Guard to publish in the Local notice to Mariners, the dumping location, the type of containers and whether the contents are toxic and/or explosive." The first sentence is recommended to help ensure that the emergency exemption will only be utilised in emergencies where human life at sea is in imminent danger. The second is recommended so that fisher- men may be able to avoid any area where such containers have been dumped. In Section 227 . 6 , Paragraph (h) (2) 26657, column 2_/ should be revised to stipulate that: "Cadmium and its compounds are present in any solid or liquid phase of a material in concentrations less than 0.2 mg/kg." H 82 ------- - 2 - Some recent studies by the National Murine Water Quality Laboratory have indicated that cadmium concentrations well below 0.6 mg/1 are accutcly toxic to three of four crustacean species tested, have a delayed lethal effect on a bivalve mollusk, rind cause the larvae of a fjnfish to be lesn capable of coping with mivi ronmental stresses in temperature and oxygen. Eislcr (19 71) showed that, in waters of 20°C and 20 o/oo salinity, a 0.32 mg/1 cadmium concentration was fatal to 505. of sand shrimp and hermit crabs in 96 hour!). This same study showed that a 0.4 2 rng/] cadmium concentration was fatal to 50° of the grass; shrimp. Shustcr ------- - 3 - In Section 239.1, Parayraiih (a) (2) / p. 26666, column 2/ the r.tate- raen t "... in wntcr no loss than one hundred fathoms (six hundred . Icot) deep ..." should have the following added, "and no le;;r; than three hundred f a chow;; (eighteen hundred feet) from (1) 27° 30" to 31 0C' Worth Latitude off St. Augustine and Cape Carnaveral, FL; (2) 02°20' to O'l^OO' West Longitude off Dry Tortugas, FL; and (3) 07t>15' to 89°S0' West Longitude off the Mississippi River Delta, LA to I'cnsacola, FL." This recommended revision would help ensure that burials at sea are made "permanently", an intent enumerated in the proposed General Permit. Studies by Roe (1969) and Anderson and Lindner (1071) indicated that these three areas support major concentrations, consisting of commercial quantities, of royal red shrimp. kecent shrimp catch statistics (Anon., 1975) show that some of these areas are already being frequently trawled out to the 300 fathom contour by the shrimp fishery. Therefore, items deposited on the bottom in these zones would likely be subsequently caught in a shrimp trawl. We also note the apparent absence of provision for remote sensing from aircraft or satellite as an additional tool in enforcing the regulations. By 19*78, the K'imbus C satellite will be mailing daily orbits, and will be equipped with an ocean coastal zone color scanner. The 800 meter resolution of this sensor should permit detection and monitoring of waste disposal. H 84 ------- LITERATURE CITED Anderson, W. W. and P.. J . Lindner. 1971. Contributions to the biology of the royal red shrimp, Ilymenopcnacus robusInn, Smith. Fishery Bulletin 69 (2) :313-336. U.S. Dept. of Comm. NOnA, NMFS. Anon. 1975. Gulf const r.hrimp ddsta, Aiinucil summary 1974. 1JOAA/NMFS Current Fisheries Statistics No. 6725. 3 3p. Dethlefsen, V. , 11. von Westernhagen and I!. Rosenthal. 1975a. Cadmium uptake by marine fish larvae. Helgolander wiss. Heercsunters. 27:396-407 . Dethlefsen, V., H. von Westernhagen and II. Rosenthal. 1975b. Accumu- lation of cadmium by embryos of herring, flounder and garpike under different salinity regimes. International Council for the Exploration of the Sea. CM 19 7 5/K;9 Fisheries Improvement Committee, 15p. (Mimeog. preprint, subject to revision) Eislcr, R. 1971. Cadmium poisoning in Fundulus heterocli.tus (Pisces: Cyprincdontidae) and other marine organisms. 0. Fish. Res. Bd. Can. 28:1225-1234. KidOaugh, D.P., W.R. Davis, and P..L. Yoakum. jl 9 7 5 . The response of larval fish, Lc iostoinus xan thurus , to environmental stress following sublethal cadmium exposure. Contrib. Mar. Sci. 19: 13-19. Roe, R.B. 1969. Distribution of royal-red shrimp, Hyinenopenaeus robustus, on three potential commercial grounds off the south- eastern United States. Fishery Industrial Research. 5(4): 161- 174 . Shuster, C. N., Jr. and B.H. Pringle. 1969. Trace metal accumulation by the American eastern oyster, Crassos trea virginica. Proc. Nat. Shellfish Assoc. 59:91-103. H 85 ------- #15 The following responses are given to comments received from the U. S. Department of Commerce, Washington, D. C. 220, 1(c)(4) - The safeguarding of human life is implicit in the Act, as well as in the regulation. We do not believe a change in language is needed. 222. 3 - Changes made in this Section are discussed in the preamble. EPA believes the public notice provisions meet the requirements of the Fish and Wildlife Coordination Act. 224. 2(b) - This suggested changed has been made in the regulations. In dealing with the recommended change in the cadmium value in the solid phase, the redraft of Section 227. 6 responds to this comment. In addition. Appendix F contains additional information relative to this. 227. 27(b) - The LPC is required to be run on three species of marine organisms. The criteria specify that the species should be ones that are recognized as sensitive and they should be ones that can be held in the laboratory for sufficient time to perform the test. Crustaceans are included in this as appropriate. The period of time involved in a bioassay may vary according to the type of bioassay. The criteria are based on a 96-hour bioassay to determine an acute toxic affect and an application factor of . 01 is applied in unknown situations. When enough H 8G ------- #15 2 is known about a waste to allow the use of a different application factor, then this can be used. Section 229.1(a) (2) - An appropriate change has been made in the regulation to incorporate this suggestion. Concerning the final comment, the monitoring program may utilize any appropriate method of collecting data, including remote sensing. H 87 ------- COASTAL ZONE 400 Street ty^aiiacAaieM 02202 MANAGEMENT August 25, 1976 Mr. T.A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: The Coastal Zone Management Program would like to comment on E.P.A.'s Proposed Revision of Regulations and Criteria on Ocean Dumping, issued June 28, 1976. First, we support the comments made to jou by the National Wildlife Federation (copy attached). Secondly, in Part 222, Section 222,3.(d), we request that a section be inserted requiring that notices of general, special, interim, research, and emergency permits be sent to all state coastal zone management programs within 500 miles of the proposed dumping site. This coordination is consistent with the requirements of the Coastal Zone'Management Act of 1972, which states that all Federal permits affecting a states' coastal zone be approved by the approved state C.Z.M. program. While many states do not as yet have approved C.Z.M. programs, a number are nearing completion of the planning stage, and anticipate having approved programs within a year. Early coordination would benefit both the states and E.P.A. Thirdly, with regard to Part 227, Section 227.6.(b), we would like to see numerical limits placed on other heavy metals besides cadmium and mercury. In addition, we feel the limit proposed in (b)(4), namely "a visible surface sheen in an undisturbed water sample" is vague at best and should be replaced by a numerical limit. Lastly, in Section 227.13.(c), it is our understanding that the elutriate test uses water from the spoil disposal site, not from the dredging site as stated in the regulations. The statement in the regulations may be ------- an inadvertent error, but if it is not, we would like some explanation of how the use of water from the dredge site will produce a prediction of water quality effects from the material released at the disposal site, which seems to be the intent of the regulation. Sincerely, Jennifer Lewis Director Coastal Review Center JL:sar H 90 ------- #16 Response to comments received from the State of Massachusetts, Coastal Zone Management, Boston, Mass. Section 222.3(d): This suggestion has been incorporated and is dis- cussed in the preamble. Section 227. 6(b): The purpose of Section 227. 6 is to incorporate the requirements of Annex I of the Ocean Dumping Convention regarding the specified constituents. Numerical levels on other heavy metals are not necessary because the actual toxicity of a waste containing these would be determined by the bioassays and the basic criterion for inter- preting the results would be the LPC as required in Sections 227. 7 and 227. 8. The sheen test has been accepted as a standard regulatory criterion for many years. Section 227.13(c): For the elutriate test, it is at the discretion of the Regional or District Engineer to determine which water, from the dredging site or the disposal site, is to used. This is done because the object of testing is to determine under what conditions the most of the toxic materials are released; in some cases this may be with water from the dredge site, in some cases from the disposal site, depending on the type of dredging that is being done. H 91 ------- Offi tcers President WILLIAM E. BRANEN Standard Preil P. O, Box 437 Burlington, Wt 53105 Vice President GEORGE A. JOPUN HI Commonwealth-Journal 102 N. Mop!* St. Somenef, K¥ 42501 Treasurer HAROLD HUDSON Herald 401 S, Amherst Perryten, TX 79070 Executive Vice President THEODORE A. SERRItl Washington, D, C. 20045 Corporate Secretory & General Counsel WILLIAM MULLEN Washington, D. C. 20045 Directors ¦NDEU E. LONG 'bennett Co. Boo»t*r Ei Marlin, SD 57551 CLARENCE W. BOWERS Stiller County News P. O, Box 1® Z«ti«nap!e, PA 16063 JAMES W. GIU, JR. N«wt 123 S. Cormalito Si. Hem.t, CA 92343 WILLIAM C. ROGERS Foreit Blade Swctiniboro, GA 30401 ROBERT 6. BAILEY Herald P.O. Box 312 Buhl, ID 83316 IANNING MACFARLAND, JR. Doily Low Bulletin 415 N. Stat* Street Chicago. II 60610 GEORGE J. MEASER Bee Publication! Inc. Willicumville, NY 14221 WALLACE G. VERNON Adverttier Bdon, MO <5026 JOHN F. MCMASTER Public Spirit ^ Ayer, MA 01432 iCE HELBERG tricar P. O. Box 310 Beli»*ue, WA 9800? GEORGE SPEERS New England Pre»» Aiioriatlon .360 Huntington Avenue Bo.ton, MA 02115 National flewspaper Association SERVING 6SOO PUBLISHERS AND EDITORS IN SO STATES August 25, 1976 491 National Press Bldg. 14th and F Streets, N.W. Washington, D. C. 20045 Code 202 . 783-1651 Mr. T. A. Was tier Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D. C, 20460 Dear Mr. Was tier; The following comments are in response to proposed rules dealing with "Ocean Dumping, 40 CFR Parts 220 through 229" which were published at 41 Fed. Reg. 26644 on June 28, 1976. The National Newspaper Association (NNA) is a national trade association which represents the interests of more than 8,500 newspapers throughout the United States. Our members are located in each of the fifty states, the District of Columbia, Guam, and the Virgin Islands. We commend EPA for its revision of emergency permit provisions contained in the regulations to be modified and require more adequate public notice and opportunity for hearing prior to the issuance of such permits. We support the context of Section 222,3, as amended, in its entirety. However, we offer the following clarifying amendment, which we feel will strengthen the objective sought by EPA for full public participation in this proceeding. Section 222.3(b)(1) and (ii), as proposed, calls for publication of every complete application for special, interim, and research permits ins (i) a daily newspaper of general circulation in the State in closest proximity to the proposed dumping site; and (ii) a daily newspaper of general circulation in the city in which is located the office of the Administrator giving notice of the permit application. Firstly, we do believe that the medium for publication should be expanded to include publication in weekly newspapers, as well as daily ones. Often times, in smaller or rural communities, the only newspaper available to the township is a weekly one; in others, a daily newspaper is the only one published. To simplify this, we would suggest that the regula- tions simply call for publication in a newspaper of general circulation. According to the 1976 Editor and Publisher Yearbook, thers are approxi- mately 1,436 daily newspapers serving the United States. In comparison, there are approximately 7,486 weekly newspapers in the United States with a total readership of 140,704,520 (National Directory of "Weekly Newspapers, National Newspaper Association). H 93 PUBLISHERS OF NEWSPAPER PUBLISHERS' AUXILIARY ------- -2- Only newspapers that are qualified to publish public notices under applicable state law should be considered for public notices required by federal law or regulation. This simplifies administration for the federal government, avoiding the need to determine what type of publication should be used. There should be a requirement for publication of such notices once a week for three consecutive weeks, rather than the proposed single insertion. A three- week publication requirement will assure maximum visibility of each permit, as well as minimize the possibility of an interested party missing the notice the day it appears due to absence from the city on business or vacation. If the original notice causes some controversy or discussion, the second and third notices will have greater readership. In summary, we propose the following language for clarification of the proposed Section 222.3(b)(i) and (ii): "The notice of every complete application for special, interim, and research permits shall be given bys (1) publication once a week for three consecutive weeks in a newspaper of general circulation in the State in closest proximity to the proposed dumping site; and (ii) publication once a week for three consecutive weeks in a newspaper of general circulation in the city in which is located the office of the Administrator or the Regional Administrator, as the case may be, giving notice of the permit application. (iii) For purposes of this subsection, a newspaper is one qualified to publish public notices under applicable state laws." Part 223.2(b) and (2)(c) should also be modified to read as being contingent upon this above section, as well as other pertinent related sections of the regulations. Our brochure, "Because the People Must Know", is enclosed for your review. If NNA can be of additional assistance in this proceeding, please feel free to call on us. Thank you for your consideration. "James R. Cregan Staff Attorney vrk/enclosure H 94 ------- PUBLIC NOTICES "BECAUSE THE PEOPLE MUST KNOW Prepared by National Newspaper Association 491 National Press Building, Washington, D.C. 20045 (202)783-1651 The National Newspa/wr Association represents 6,000 community newspapers in every sta:e and works closely with state, regional ami other national newspafwr organizations. S'SA actively supports legislation directed at keeping the public well informed, its members sincerely believe that public notices in newspapers serve an increasingly valuable role in today's fast- moving society. j/THF. PREMISE NNA's urging of increased use of public notices is based on two concepts. The first is the rather simple but basic idea that the people in a democratic society have a right to know what their government is doing. As a corroilary to this public right, the government has an obligation to undertake reasonable efforts to inform the people. The second concept is just as basic and just as simple: democracy needs an informed public. That is the way to make government accountable and to encourage intelligent decision-making by the people. As Thomas Jefferson said: "I know of no safe despository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with the wholesome discretion, the remedy is not to lake it from them but to inform their discretion," ITS ACCEPTANCE This concept has been endorsed time and again by the Congress, the Executive, and the Judiciary. Just recently, lor example, Congress enacted legislation and the Department of Health, Education, and Welfare adopted implementing regulations to require the states to publish a summary of their proposed annual social services plans.The plans must be published at least three times in local newspapers throughout the state. Simple instructions for obtaining more detailed information are included in each of the notices. Similarly, the State and Local Fiscal Assistance Act of 1972 (General Revenue Sharing) requires each reeipie- * government to publish two annual reports on the planned and the actuai use of revenue sharing funds. From Agriculture to the Zoological National Park, .-.n ever increasing number of government agencies and departments are actively working at informing the public through public notices. THE MEDIUM The medium adopted must effectively reach the general public. It should convey the precise- information at the optimum time and do so inexpensively. In short, the ideal medium presents what you want, in the form you want it, to those you want, when you want, and docs it all at minimal expense. Many agencies had relied on the Federal Register. But the total circulation of the Register is 46,706 H sr. copies sent to 41,055 addresses. And a large percentage of those are in the District of Columbia, leaving precious few copies for a nation of more than 200 million people. The medium which does meet all these requirements is the local newspaper and notices in newspapers. ITS READERSHIP There is no question that public notices in newspapers are read. A 1971 study (see Appendix) conducted by the Newspaper Advertising Bureau showed that approximately 77% of Americans IS and older read a newspaper every day. Moreover, this readership figure is fairly constant. A 1970 study showed a 78% readership; 1967-76%; 1963-78%; 1961-79% Critics charge, however, that public notices are placed in the back of newspapers along with the classified ads. Many newspapers admit their guilt to this charge — eagerly. The classified section happens to be one of the besi read sections of the newspaper. According to the study referred to above, 76% of the daily readers open the classified ad pages. Approximately four out of ten readers (39%) read at least one classified ad (See Appendix). A classified ad study conducted by the Newspaper Advertising Bureau in 1969 turned up comparable results. That study indicated that a full 61% [iilfiarailKi ------- of all readers had looked ai a classified ad within the past week. By contrast, a study (see Appendix) conducted under the auspices of the S. I, Newhouse School of Public Communications, Syracuse University, in 1975 reached the following results: Education, the arts, general human interests, and public amusements (society entertainment) would have a readership of Ie-=s than 30<7o, Government, science, and invention, economics, politics, disaster, military, and public moral problems would have a projected readership of between 30 and 47%, Public health and welfare, weather, crime, and labor stories would have a readership of over 40%. "Burying" public notices in classified sections makes for highly publicized and widely known funerals. Some studies have zeroed in specifically on readership of public notices. For example, the Journalism Research Center at the University of Oklahoma conducted a study on the readership and reader interest for the Anadarko Daily News. (See Appendix). Legal records were read nearly every day by 27¥o of the readers. It should be noted that readership figures for the "legals" were higher than the figures for such presumably popular items as baseball standings, television schedules and Bugs Bunny. Similarly a readership study (sec Appendix) conducted by the Herald and News, Klamath Fall"., Oregon, pointed up the high readership of public notices. Indeed, while falling behind Ann Landers,the weather, and editorials, public notices are read more often than Evans & Novak, Jack Anderson, youth baseball, and Peanuts. ANDTHEN SOME The comparatively high readership figures discussed above understate the total effectiveness of public notices. If the notice relates to a matter of general interest or controversy, it will undoubtedly find its way into many conversations. An average readership of 25-30% quickly translates into lOOyo communication. This word of mouth com- munication points out another advantage of newspaper public notices: Permanence. Individuals, hearing about a matter can readily obtain the actual notice. In addition, a printed notice can be read at one's leisure and re-read and studied if desired. Of course, a newspaper item can be easily clipped and saved for future reference. This latter is not just a theoretical possibility. The Newspaper Advertising Bureau study referred to above found that 45% of the men and 67% of the women who had participated in the survey had clipped at least one editorial item from their newspaper in the preceding three months. PUBLIC NOTICES PROVIDE — HIGH VISIBILITY Through Headings... Newspaper publishers are continually working at improving the effectiveness of public notices. Creative or bold face headings such as the following draw the reader's attention: PUBLIC NOTICES in Your Newspaper Today Through Indexes... Some papers regularly feature a front page item listing the day's public notices. From a front page of the Klamath Falls (Ore.) Herald and News: Revenue Stniring Notice Published Two public notices relating to Klamath County's role in revenue sharing appear unlay on Page 15. Other notices include a sheriffs sale, notices to bidders and other in'crcMetJ person*. And the Hillsboro (Ore.) Argus: Public Notices Public nonces in today's Argus call ailcmion in: Meeting of McKay Water Control District Hoard nc*t Monday night at 8 in the district office; Public hearing Nov. 12 at 1:30 p.m. before Washington County Planning Commission on proposed revisions to the county's Comprehensive Plan; Public hearing nesi Tuesday at 8 p.m. before Hillsboro City Council on off street parking for smgle-lamily residcntialand duple* lots; Through Related Stories ... Often a public notice provides the impetus for an accompanying news story or editorial as well as similar items in competing publications. Through Creative Layouts... In the area of layout and design, public notices are receiving the attention they merit. In many cases, governments are using maps like those on the facing page. PUBLIC NOTICES Your Right to Know and be Informed of the functions of your government are embodied In public notices. In that self-government charges all citizens to tie Informed; this newspaper urges every citizen to read and study these notices. We strongly advise those citizens, seeking further In- formation, to exercise their right of access to pubtc records and public meetings. H 9G ------- PUBLIC NOTICES to m PRESTON SUNNYSIDE N*t CD imcom co 'PI # PROPOSED A PROJECT CRYSTAL SPRINGS PliBl.lt" NOTICK AH interested persons arc hereby advised thai the State Highway Hoard of Directors and the Siase Highway Engineer of ihc State Highway Department, Carson City, Nevada Have appro* cd the design for an improvement of a portion of State Route 38, federal-aid secondary route 6"\1 in Lincoln County, Nevada, commencing at the end of the existing pasemem near the 'I own of Hiko. Nevada, and proceeding to a point miles north of the 1 own of Hiko. The improvement will consist of the construction of a 32-foot wide paved roadbed and installation of drainage structures, fencing and other roadside appurtenances which are standard or required for this tvpe of improvement. An informational hearing on the proposed project was held l\*ccmher 4, '973. Opportunity for a design public hearing was afforded between January 10 and January 17. 1^74. and no request was received as of January 28, 1974. Information on the proposed piojcct is available at the District 4 office in ha>t Nevada; Distrki I office in Las Vecas. Nevada; and at Highway Department 1 leadquar ters in Carson City, Nevada. ### The Office of Kcvenuc Sharing ha« used lor rm of its im n dcMgn The city of Claremont, California expanded on the information pnmded in the form hy adding four numb red paragraphs under the heading "Revenue Sharing i \penuitures Lxplanations.*' Uic result: a lorm both eye catching and informative. COST Public notices while certainly inexpensive in the sense of dollars paid arc also a good buy in the sense of value received. The Office of Revenue Sharing for example has gathered information nation-wide on the cost of publishing its Planned Use Reports. 16,767 governments of all sizes reported total publication costs of $467,093. Average cost per form:$28. Those governments received more than $3 billion in revenue sharing funds. Thus, publication costs for informing ihc people of the local government's planned use of revenue sharing funds were less than two one-hundredths of one percent of ihc funds distributed. A true bargain considering the number of potential and actual readers. AMODEL NNA's suggested public notice provision encompasses three points. First, the notice should be published at least once a week for a minimum of three consecutive weeks. This way, the notices can be carried in either a daily or a weekly newspaper. Publishing the notice over a three week period greatly increases its visibility. If the original notice causes some controversy or discussion, the second and third notices will have greater readership. In addition, people who were on vacation or just happened to miss one issue of the notice will have ample opportunity to read it in subsequent issues. Second, the notice should be placed in a newspaper of general circulation published in the affected county. People generally expect to see proposals concerning their community in the local newspaper. A notice published in a newspaper in the county has a greater chance of being seen and read. Of course, if there is no newspaper published in the county, then it should be published in a newspaper having general circulation within the county. EXAMPLE OF MAP USED FOR PUBLIC NOTICE VOTING PRECINCTS FOR ANNEXATION ELECTION EAST ORCHARD ROAD Ht&HiANn # flfMINTARY SCHOOL NORTH BCNJAMtft FRANK IlEMC SCH0OI wu* \ UN \ NTftqy I > PEA6QQY SCHOOL EAST/ARAPAHOE road 7. # MARK TWAIH CttMIUTABY M SCHOOL DRY CREEK HOAO ARAPAHOE 1 SENIOR HIGH SCHOOL 8 EAST \ CARL SANDBURG ClCMCHTAftv SCHOOL COUNTY LINE ROAD LEWIS AMES f Cf Ml N TAR * SCHOOL o o DO r- «e o ¦*.' r- rr K i ------- county. Third, only newspapers that are qualified to publish public notices under the applicable state law should be considered for public notices required by federal law or regulation. This simplifies administration for the federal government, avoiding the need to determine what type of publication should be used. NNA suggests that the following language be considered to meet public notice needs: "The notice shall be published once a week for three consecutive weeks in one or more newspapers of general circulation published in the county. If no newspaper is published in the county, the notice shall be published in one or more newspapers having general circulation within that county. For the purposes of this section, a newspaper is one qualified to publish public notices under applicable state law." APPENDIX Studies on Newspaper Readership A Million Miles of Newspapers, a Study of Newspaper Reading, Reach and Frequency. Newspaper Advertising Bureau, 485 Lexingtr.. Avenue, New York, New York, 10017; 1971. Sftidy conducted by Audits and Surveys, Inc. 1720 people were interviewed and 1,100 inter- viewed a week later. Each person who had read a daily newspaper on the preceding day was shown 12 pages of that paper. The reader was asked whether he had opened the paper to a particular page and whether he had read various items that were pointed out to him. Other questions were also asked. Classified Ad Study. Newspaper Advertising Bureau, 485 Lexington Avenue, New York, New York, 10017. 1969. This study consisted of 333 telephone interviews conducted with male heads of households who EXAMPLE OF REVENUE SHARING FORM PLANNED USE REPORT GENERAL REVENUE SHARING Gefrrat Rr»e»ut Shat.ng lo local and Male go»fnwf»m ft* 10 ouhiiVi * »wom o* lit plan* lo« ihe wfct ol 'una* to mlo»m u» citxen* to encoungr Wf" psrhcotMn .a *g few in® mont, ougm ia ts« »p«ni Wiifti-* in* purposes I'jitd *ou< plan COtNDltyHIS CATECOR>C5rng i t C«aCU*«« QffiCtt ¦ngghjaaflgy T* *l«ors 11*itftm wki«< Mmpo*«»aa fmMmnm•**•» waamor onv*n*m4*m warn* ff™ WTfglTBRSTHSSS^ FTgln RhtHbm o.„* SUfia i I'll.I . rill.I.. Flglfl 0reh*rd¥«w«,Cle*n<*ter Record 6-19-7U had read a specified central city daily newspaper on the preceding day. Interviewing was evenly distributed among Portland, Oregon; Richmond, Virginia; and Indianapolis, Indiana. The Newspaper and The Community, II.: More Findings From The Standardized Community Newspaper Survey, Richard A. Lindeborg, Assistant Professor of Mass Communications, Baker University; Lee Becker. Assistant Professor of Public Communications, Syracuse University; Newspaper Research Program, Communications Research Center, S.I. Newhouse School of Public Communications, Syracuse University, September, 1975. Study is based on 15 surveys conducted 90 between 1970 and 1974. One-third of the papers covered were weeklies, two-thirds were dailies. An Analysis of Readership and Reader Interest for the Anadarko Daily News. Gerald Grotta, Ernest Larkin, Barbara DePlos, Journalism Research Center, H.H. Herbert School of Journalism, 860 Van Vleet Oval, University of Oklahoma, Norman, Oklahoma, 73069. Study is based on interviews of 106 newspaper subscribers selected at random from subscription lists. Readership Survey. Herald and News, Klamath Falls, Oregon. The newspaper carriers distributed 1,000 questionnaires at random along their routes. 514 were returned. 11/75 ------- #17 Response to comments from the National Newspaper Association, Washington, D. C. Section 222. 3 - The regulations do not preclude publication in weekly newspapers. However, in order to provide timely action on permit applications, it is not regarded as desirable to require publi- cation on a weekly consecutive basis. H 99 ------- CA-15 (11/72) New York Bldg. HO • State ¦ SUNY Department of - stony Brook, MEMORANDUM Environmental Conservation New York 11794 TO: FROM: SUBJECT; DATE: Mr, T. A. Wastler A. S. Taormina, Director of Marine & Coastal Resources' Comments Regarding Ocean Dumping; Proposed Revision of Regulations and Criteria by EPA. August 25, 1976 After a review of the above mentioned document, the following comments are submitted5 I. General Comments a. The appropriate agency should develop area specific criteria for bioassay tests. b. The entire category of persistent inert synthetic materials be reviewed for the purpose of substituting more environmentally compatible materials in their place. c. Total acidity and total alkalinity tests should be replaced by pH tests. d. Total concentrations of potential pollutants be tested instead of testing only elutriate concentrations. IX. Specific Comments a. Pg. 26646, Column 2, Paragraph 5 discusses the use of bioassay organisms. I strongly urge that members of the family Cyprinodontidaa (killifishes) not be utilised as bioassay organisms due to their hardiness. The appropriate agency should develop area specific criteria for bioassay tests. These criteria should particularly consider detritus eating organisms, larval stages of certain species, and all life stages of recreationally and commercially important species, b. Pg. 26657, Section 227.5d states that "persistent inert synthetic or natural materials which may float or remain in suspension in the ocean in such a manner that they may interfere materially with fishing, navigation, or other legitimate uses of the ocean" may not be dumped. Plastics and other synthetic material, which may be injested by marine organisms, e.g., fish, squid, etc., or cause injury to birds feeding in the ocean, should be given consideration. Many plastic products, fe.g. "six-pack" holders, styrofoam cups, tampon inserters, etc., have substitutes which are more environmentally acceptable. It is suggested that this entire category of plastics and other synthetic materials be reviewed for the purpose of substituting more environmentally compatible materials in their place. ------- Mr, T. A. Wastler - 2 - August 25, 1976 c. Pg. 26657, Section 227,7d states that "the average total alkalinity or total acidity,...may be changed...by no more than 10%." It is suggested that total acidity and total alkalinity tests should be replaced by pH tests. It is much easier to determine pE and this is what affects the organisms. d. Pg. 26658, Section 227.13C states that in order to predict the effect on water quality....an elutriate test may be used." Total concentrations, not just elutriate concentrations, of potential pollutants should be measured. If a pollutant is present, it will, in time change to a form that may affect organisms. I strongly urge that total concentrations be utilized as the primary test for potential'pollutants. e. Pg. 26665, Section 228.13d discusses the measurements of various substances including chlorinated hydrocarbons. It should be noted that the maximum potential adverse effect to the marine biota from substances, such as chlorinated hydro- carbons, is not due to acute toxicity, but rather to the chronic effects of long term exposure and bioaccumulation. AST/bd c: J. Foehrenbach G. Colvin D. Fallon T. Hullar H 102 ------- #18 Response to comments received form the New York State Department of Environmental Conservation, Stony Brook, N.Y I. a. The organisms to be used in bioassays are specified on a regional basis. b. This suggestion has merit; however, such a review is beyond the scope of these regulations. c. The pH test does not provide the same amount or type of informa- tion as determinations of acidity and alkalinity. d. Tests on all phases of wastes are now required. II. a. EPA laboratories specify appropriate sensitive marine organisms used in the bioassay for various regions around the United States. Killifishes would not be specified for use in cases where other more sensitive organisms are available. b. 227. 5(d) - Such a review is beyond the scope of these regulations. c. 227. 7(d) - See response above (I. c) d. 227. 13(c) - The impact of the dreged material in both the solid and liquid phases, as well as in the suspended particulate phase, is determined through a combination of chemical testing of the elutriate and bioassays run on the suspended particulate and the solid phases. These tests will determine the direct impact of dredged material, since many of the constituents present in either the suspended particulate or the solid phase may not become biologically available. This is a far better procedure to use than chemical analyses for all of the constituents. e. Section 228.13(d) refers to those materials that should be measured during baseline or trend assessment surveys, and does not address their potential effects on the environment. H 103 ------- Mr. T. A. Wastlor Chief, Marine Protection Branch Oil md Special Materials Control Division ('#1-548) Environmental Protection Agency 401 M Street SW Washington D. C. 20460 Dear Mr. Wastlors My name is Jonathan Smith, and I work for Mr. William Ked email of the United States Amy Corps of Engineers. X am presently also a student at the National Law Center, George Washington University, working in an L.L.M..program in environmental 1nw. I am writing my masters* thesis on the development of regulatory criteria for the control cf the ocean dumping of dredged materials. In that regard, I have the following questions or comments pertinent to the proposed revision of ocean dumping regulation? and criteria published, by the Environmental Protection Agency in the Federal Register of June 23, 1976, 41 Fed Reg 26644 et sea. If possible, I would greatly appreciate a response by you or your staff, either in writing or through an opportunity to discuss the comments orally. I realize that this request is slightly unusual and that you and your staff are quite busy, but even a short response to each question, again either written or through conversation, would gceatly aid me in the writing of my thesis. If this is not possible, the following may be considered normally as comments to the proposed revision of regulations and criteria. Thank you very much for your time and consideration. I hope to hear from you in the future. onathan T. Smith P.S.s My address is Mr. Jonathan T. Smith 3903 Benton Street WW Washington D.C. 20007 Phone numberi 337-5125 h105 ------- QUESTIONS Ai^D CCMM2aT3 1. Why is the deflation of the lLuiting permissible concentration for dredged mr.tcrio.ls based on water quality criteria while the limiting permissible concentration for non-dradged :nat.erials Is: based on toxicity thresholds? Z227.2'7(ni/ 2. Why does not the section on bioassays indicate what standard will be applied in determining whether of not to alio-;-,' the discharge of_dredged materials or to condition the permit? £227.13(dJ/ 3. Why does it indicate that the District Engineer may include baseline or trend assessments in a monitoring program £228,97 wlier. that section is_apparently not applicable to the Corps of Engineers? £22C .1 and 223.4(e}/ 4. if site selection for ocean dispoal of dredged materials _ is based on historic uses and historic Knowledge £228.4(ej/ then why should the Corps also perform studies for evaluation and potential selection according to 223#5 and '"' ..^220.6, except as specified? 5. What are the applicable water quality criteria referred to in 227.27? 6. Decause the limiting permissible concentrations for dredged materials is defined in terms of applicable water quality criteria, how does this relate to the prohibition of persists for dumping which would violate _ applicable water quality standards? £227.27 and 227.1(dj/ 7. How will 227.5(c) be applied? Kow could materials be insufficiently described to permit application of Subpart 3? Would this include a laclc of pertinent scientific information? 8. Will 227.9 also be made expressly applicable to the ocean disposal of dredged materials? 9. Are the potentially bioavailable fractions of pollutants from dredged materials_only in interstitial water or loosely bound form? £227.13(aJ/ What research supports this conclusions? (Please cite specific references) Can not biological action release tightly bound pollutants? 10. Why should not the District Engineer be required to specify bioassays if the limiting permissible concentration is exceeded after dilution? £227.1 3 <*27 How can it be predicted if bioassays are likely to be helpful unless they are actually performed? What standards are to be applied? See question 2. 11. Sec 227.17(a) and (b) only lists the considerations in determining the effect of esthetic, recrationa, and economic considerations* How is this different from the factors listed in 227.10? Upon what substantive standard will the decision be made? i i nc ------- 12 Does the defintion cf appropriate sensitive marine organism £221*27(b)? apply only to bioassays used to determine the limiting permissible concentrations or to all bioassays performed under the criteria? 13. The justification for different environmental criteria /Fart 227/ for dredged and nori-dredgod material Fas the different biological-chemical properties of the materials. What scientific justification is there for different site selection procedures and site management procedures for dredged and non-dredged materials? /Part 228/ 14.. Why is not 223.10, which provides for periodic evaluation of disposal impact, also applicable to dredged material? 15. Asides from the elutriate test and bioassay procedures, have ant other testing procedures been considered to measure the relative health of marine ecosystems? For instance, do you have any Imowledge of the Shannon- Wiener Diversity Index or the Whittalcer Percent Similarity Index? 16. Why does your draft environmental impact statement on the new proposed regulations and criteria for ocean dumping apparently contain no references to Corps Dredged Materials Research Program? What DHRF references h' . have beeri used specifically in writing the new criteria and how? 17. Why is 227.0(a) applicable to the dumping of dredged materials if 227,6(b) is not? 18. Why may non-dredged materials not be dumped^if it would result after mixing in the exceeding of the limiting permissible concentration if dredged materials may be so dumped? £227.3 and 227.13(dJ/ 19. "y treating 227.5(a) constituents just as other materials requiring special treatment, aren't you treating Annex I and Annex II materials identically, this nullifying the trace contaminants provision? Is this scientifically vii#? rt 107 ------- #19 Response to comments from Jonathan T. Smith, Washington, D. C. are submitted in numerical order of questions received. 1. 227. 27(a) - The limiting permissible concentration is defined for all materials, including dredged materials. 2. 227.13(d) - Bioassays on dredged material are required under the criteria. The same requirements which limit permissible concentrations are placed on dredged material as on other materials. The specific stand- ards to be applied will be presented in an implementation manual now being developed by EPA and the Corps of Engineers. 3. 228. 9 - This Section is applicable to dredged material disposal. 4. 228. 4(e) - Site designation for dredged material sites requires the use of the same criteria as for other sites. 5. 227. 27 - The applicable water quality criteria are defined in Section 227.31. 6. 227. 27 - The LPC for the liquid phases of sewage and industrial waste as well as for dredged material are defined in terms of the applicable water quality criteria. The criteria specify that permits may not be issued for wastes which do violate the applicable water quality standards. 7. 227. 5(c) - If information sufficient to apply the criteria is not pro- vided, the permit will be denied. 8. 227. 9 - This section is applicable to dredged material. ¦H 100 ------- #19 9. In Section 227. 13 the benthic bioassay procedure provides information on the biological availability of pollutants tied up not only in the interstitial water, but also in the sediments themselves. Biological action can indeed release tightly bound pollutants and the benthic bioassay procedure specified will show if such a situation exists. 10. 227.13(d) - See response to question 2. 11. Section 227.17(a) lists considerations to be used as a basis for deter- mination. Section 227.18 gives a detailed list of the factors to be considered in making that consideration. These are essentially non-quantifiable. No specific criteria can be made--it has to be done on a case-by-case basis. 12. 227. 27(b) - The definition of appropriate sensitive marine organisms applies to all bioassays performed under the criteria. 13. Dredged material site selection is subject to the same criteria as the site selection for other materials. 14. Section 228.10 is applicable to all dump sites designated by EPA. 15. A number of test procedures have been examined and evaluated. Besides bioassays, only the elutriate test and bulk analysis can be used in direct application to dredged material before dumping. Bulk analysis, as discussed in Appendix F, tells very little and the criteria as redrafted rely on both the elutriate and the bioassay procedures. The Shannon-Wiener Diversity Index or the Whittaker Percent Similarity Index are both indices, H IS'J ------- #19 3 either of which could be applied only over a long period of time based on environmental studies of the site itself. Both of these indices, as well as other indexes of diversity, can and probably will be used in baseline survey site designation procedures and in the follow-up monitoring program. 16. The new criteria have been developed in close consultation with the Corps of Engineers, including Dredged Materials Research Program (DMRP) staff. Thus, the results of the DMRP have been used in develop- ing the new criteria. Much of the information used has not yet been published. 17. All of Section 227. 6 is applicable to dredged material as redrafted. 18. The LPC is required for the disposal of dredged material as for other materials. 19. 227. 6(a) - These constituents are being treated in conformance with the provisions of the International Ocean Dumping Convention, This is a legal requirement and the best available scientific information is used in each case. A lio ------- UNIVERSITY OF RHODE ISLAND KINGSTON, R. I. 02881 Department of Zoology • Biological Sciences Building • 401-792-2372 17 August 1976 Mr. T.A. Hastier Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M St., S.W. Washington, D.C. 20460 Dear Mr. Wastier, I ant writing to you as a citizen long and actively interested in maintaining a quality environment in this country, as a professional marine ecologist, and as a member of several orginizations broadly based on natural resources conservation as, The New England Natural Resources Center, The Center for Energy Policy, Inc., The Association for the Preservation of Cape Cod, etc. My concern 1s with the Environmental Protection Agency's "Proposed Revised Ocean Dumping Regulations and Criteria." In my view, while the proposed revisions are certainly an improvement, there are still numerous deficiencies remaining in the regulations which need to be corrected—and I base these primarily on the discrepancies between EPA's regulatory approach and what the law—passed by Congress in the Fall of 1972 and amended in the Spring of 1974—requires. As I understand it, the ocean dumping law was amended to incorporate by reference the "standards and criteria" of the International Ocean Dumping Convention or Treaty, which was originally signed in London shortly after the inltal passage of the U.S. ocean dumping law. The ocean dumping treaty became fully binding under international law on August 30, 1975. Apparently, the treaty's most significant addition to the array of legal requirements applicable to ocean dumping in the United States, was a provision prohibiting the ocean dumping of a group of "Annex I" or "black-list" substances as other than "trace contaminants." The most Important of these black-list materials are mercury and its compounds, cadmium and Its compounds, organohalogens, and oil and grease. Although I cannot see.that the treaty defines the term "trace contaminants," its legislative history suggests that what was meant were concentrations so small as to be well below toxic or bioaccumulative levels in the environment. To be brief, and with the hope of making my comments clearer, I have listed the items that appear to need attention in the form of statements or questions. H 111 ------- -2- 1) Failure to provide a definition of "trace contaminants," without which it is impossible to implement the legal prohibition against ocean dumping toxic "black-list" substances as "other than trace contaminants." I cannot suggest a scientifically defensible definition of "trace" amounts for Mercury, Cadmium, organohalogens, and oil or grease, but surely such methodology is available in the United States oceanographic community. 2) The failure to recognize that some ocean-dumped wastes can cause significant harm even within four hours following a dump. 3) The failure to take adequate account of long-term, cumulative, and synergistic ocean dumping and marine pollution impacts. 4) The failure to recognize that even unpolluted dredged materials can have a significant impact on the marine environment if too much is dumped in a biologically sensitive area. 5) The excessive emphasis of the dredged material criteria on water quality effects, to the exclusion of impacts on benthic organisms. 6) The need for a chemical or biological screening procedure for anticipating the environmental impacts of polluted dredged material ocean dumping. 7) The failure to apply the same disposal site selection and monitoring requirements for polluted dredge spoils as for non- dredged wastes. 8) The limitations of "mixing zones," "dilution factors," and "dispersion models," for the ocean dumping of persistent, toxic, and bioaccumulative wastes need to be identified. 9) How adequate are the "guidelines" (§228.13) for doing ocean disposal site baseline and "trend assessment" surveys? 10) Does "Impact Category I" (1228.10) really ensure that significant environmental impact, including food-chain contamination, will not occur as a result of ocean dumping? With the hope that these comments will be helpful in further improvement in the ocean dumping regulations and criteria, in making this legislation more meaningful and enforceable, and in setting an international example of reasonable environmental marine resource improvement (which may reflect positively on future "Law of the Sea" legislation), I am Si " " Donald J. Zirtn Professor Emeritus of Zoology DJZ/rem rt 112 ------- #20 Response to comments rec'd from Dr. Donald J. Zinn, University of Rhode Island, Kingston, Rhode Island. 1. A definition of trace contaminants is not necessary as long as the basis for regulation is stated and acceptable levels are set. See Appendix G. 2. No evidence is presented to support this statement. 3. The site designation and evaluation procedures do take these effects into account. 4. The bioassays and the elutriate test serve as screening procedures for anticipating environmental impact of dredged material dumping. There is no failure to recognize that even unpolluted dredged material can have a significant impact on the marine environment. There are several conditions in the criteria which reflect this--227. 9 and 227.10 among them apply to any inert waste--also the requirements of monitoring and the baseline surveys for site designations recognized if this could have an impact. 5. Dredged material criteria are based upon both water quality effects and a benthic bioassay procedure, which is included to determine the effects on benthic organisms. 6. This is now included in the criteria. 7. The same disposal site selection monitoring requirements are required for dredged spoils as for other materials. H 113 ------- National Coalition for Marine Conservation, Incorporated Christopher M. Wel.o, Secretary tBTM FLOOR 100 FEDERAL. STREET BOSTON. MASSACHUSETTS 02110 617-338-2909 August 26, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Sir: We have reviewed the "Proposed Revised Ocean Dumping Regulations and Criteria" as published in the Federal Register for Monday, June 28, 1976 and would like to make the following comments: 1. Part 228 should require that disposal sites should also be monitored in order to determine the degree to which wastes disposed upon the site are being contained at the site. We understand that recent findings indicate that pollutants have been transported great distances from disposal sites re- sulting in interference with other uses of the ocean and ad- verse environmental impact over a vastly greater area than the area specified in the original designation. Therefore, we suggest that the criteria set forth in Section 228.10 for the evaluation of disposal impact should be made more specific as to the period and distance that monitoring surveys shall be conducted. We further suggest that the results of such surveys should be made available to other users in affected or threat- ened areas. 2. If the term "organohalogens" does not cover all bio- accumulative substances, Section 227.6 should be expanded to include all bio-accumulative substances. 3. We have been apprised of and concur in the comments of the National Wildlife Federation. In particular, we find the regulations ambiguous in the absence of a clear definition "Let us face in time the fact that the ocean can be destroyed" ft ~ ^ *TMOR HCYERoaHL 111* ------- Mr. T. A. Wastler August 26, 1976 Page Two of the term "trace contaminants", and in our opinion the regula- tions pertaining to the dumping of dredge spoil are entirely too permissive. Sincerely yours Christopher M. Weld Secretary CMW:cj b AIR MAIL SPECIAL DELIVERY H 116 ------- #21 Response to comment received from the National Coalition for Marine Conservation, Inc. , Boston, Massachusetts. 1. The criteria of Section 228.10 call for action when effects outside the dump site are observed. If such effects occur close to the dump site, then it would be logical to extend the distance of the survey to a greater distance. We do not believe that the regulation should contain arbitrary criteria concerning distances of monitoring surveys. Results of any surveys would be made available to the public. 2. Section 227. 6 deals with materials specified in the Convention as being prohibited as other than trace contaminants. We would be glad to include other materials in this category when sufficient scientific documentation is provided to support this. None is presented here. 3. See responses to National Wildlife Federation comments, #3. H ------- UNIVERSITY OF MIAMI" Dorothy H and lewis Rosenstiel SCHOOL OF MARINE AND ATMOSPHERIC SCIENCE August 24, 1976 4600 R;CKENBACKER CAUSEWAY MIAMI. FLORIDA 33149 ¦'305! 350-72)1 Cable: UOFMIAMI Mr. T.A. Wastler, Chief Marine Protection Branch (WH-548) United States Environmental Protection Agency Washington, D.C. 20460 Dear Al: I have read the draft Environmental Impact Statement on the Proposed Revisions to the Ocean Dumping Criteria, It is my opinion that the revisions are substantial and quite desirable. The general philosophy on policies is much greater and the procedures for carrying out the policies seem straightforward. I am curious about the EPA "Analytical Methods Manual for the Ocean Disposal Permit Program." I wonder if you could provide me with a copy. I would like to compare the recommended procedures with those most widely used in oceanography. I cannot find any feature of the proposed revisions that I feel should be changed. However, there is an undercurrent of implication that the ocean disposal operations will be "Experiments with Marine Ecosystems when in fact I think the monitoring programs are really "performance verification." I assume that Water Quality Criteria will be used in evaluating permit request and permits granted only for those operations that will not change environmental quality to an extent that the Water Quality Criteria would be violated, except in the mixing zone where trans- ient higher concentrations would not be damaging. I feel that this aspect should be emphasized to avoid having the "pathological eco-freak organizations" criticize this attempt at thoughtful use of the marine environment for the benefit of all U.S. citizens. I have frequently seen monitoring require- ments misinterpreted as indicating expectation of serious damage rather than "performance verification." " r» James H. Carpenter, Chairman Division of Chemical Oceanography JHC:mpj An Equal Opportunity Employer A private, independent, international university H HO ------- SUITE 300 • 1729 H STREET. N.W WASHINGTON, D.C 20006 • A/C 202-298 6105 New Address: 3306 Wirmett Road, Chevy Chase, Maryland 20015 Telephone: A/C 301 652-8910 THE AMERICAN EAGLE FOUNDATION DONALD D. CARRUTH PRESIDENT WILLIAM C. ALLEN VICE PRESIDENT August 25, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S. W. Washington, D. C. 20460 Dear Mr. Wastler: The following comments of The American Eagle Aundation, a national environmental organization, are submitted to your office with reference to the Proposed Rule- making by the Environmental Protection Agency (EPA), relating to: "Ocean Dumping: Proposed Revision of Regulations and Criteria (40 CFR Parts 220 Through 229)", and as further set forth in page 26644 to, and including, page 26667 of the Mon- day, June 28, 1976 issue of the Federal Register, Vol. 41. 125. Regardless of the wording of the Proposed Rule, or any valid interpretation of the existing language of the proposal, EPA has failed to offer practical and valid alternatives to ocean dumping in order to correct the inherent weakness of EPA's Ocean Dumping Program—- that is, the destruction, or the rendering inert, of a great portion of the materials scheduled to be dumped, before such materials are allowed to be dumped in the marine environment (ocean). This requirement goes beyond section 227.15 (a) of the proposal: "Degree of treatment feasible for the waste to be dumped, and wheather or not the waste material has been or will be treated to this degree before dumping". The Proposal is based on the "dumping" of material(s) in the ocean in the same basic form it was in at the time the material was made available from its prime location. The proposal would, if adapted in its present form, effectively bring to a grinding halt the development by American Government and industry of a fleet of American-owned, double-hulled, double-bottomed, highly automated, self-monitoring, controlled high-temperature chemical incineration tankships. These tankships would be capable of a combustion efficiency of a minimum of 99.9% of thousands of tons of hazardous and toxic chemicals, and those types of chemicals capable of causing cancer — which are subject to incineration aboard ship, far at sea — with no measurable stress by the incinerated residue on the marine environment. The vessels shall be capable of maintaining incineration temperatures up to and including 1,650°C (3,002°F). The reasons given by EPA in the Proposal are insufficient for justifying exclusion, at this time, of consideration of ocean incineration (by vessel at sea) for des- troying incinerable organic chemicals or chemical wastes. H 12 1 X ------- P. 2 A case in point: The primary justification for existance of the United States Environ- mental Protection Agency is its Congressionall.y mandated responsibility for protecting and enhancing the quality of the environment of the human and natural resources of the United States. Laws other than just the Marine Protection,Research, and Sanctuaries Act of 1972, as amended, and those acts cited in the proposal, relate to this inherent responsibility of EPA (Ref. Compilation of Federal Laws relating to Conservation and Development of Our Nation's Fish and Wildlife Resources, Environmental Quality, and Oceanography, dated January 1975). The alternatives to ocean dumping proposed in section 227,15 (c) such as land fill, well injection, incineration (presumably on land), spread of material over open ground, and storage should not be concluded to be feasible alternatives to ocean incineration since there is no demonstrated destruction efficiency factor stipulated for these al- ternatives where "disposal" of hazard and toxic chemical wastes are concerned. The U. S. Geological Survey has expressed its concern regarding deep well injection thusly: "In its predilection for grossly oversimplifying a problem, and seeming to resolve all variants by a single massive attack, the United States appears to verge on accepting deep injection of wastes as a certain cure for all the ills of water pollution. Uncritical accept- ance would be ill advised. It is fostered by a technical and com- mercial literature which, to a distressing degree, describes capa- bilities of injection in terms so highly generalized as to be all but meaningless in relation to a specific waste in a particular en- vironment. In part the assessments are projected from misleading or false premises. An instructive example of a misleading premise is quoted below from a commercial source; the same premise appears also in current technical literature." "Injection underground would of course put wastes out of sight but, in a responsible society, cannot be allowed to put them out of mind. Injection does not constitute permanent disposal. Rather it detains in storage and commits to such storage - for all time in the case of the most intractable wastes - underground space of which little is attainable in some areas, and which definitely is exhaustible in most areas. These precepts have been stated or implied repeatedly in diverse contexts, by numerous writers." "The Environmental Protection Agency (EPA) has generally followed the policy announced on October 15, 1970 (by their predecessor, Federal Water Quality Agency, FWQA). That policy opposed "the disposal or storage of wastes by subsurface injection without H 122 ------- p. 3 strict'Controls and a clear demonstration that such wastes will not interfere with present or potential use of subsurface water supplies, contaminate interconnected surface waters, or otherwise damage the environment.: The policy also stated that "where subsurface in- jection of wastes is practiced, it will be recognized as a temporary means of ultimate disposal to be discontinued when alternatives enabling greater environmental protection become available." It should be noted that neither EPA nor industry is capable of reproducing in their laboratories, the scope of tremendous pressures exerted by Nature on the earth's "fragile crust". Of the many millions of tons of hazardous and toxic chemical wastes dumped into land injection wells each year in the United States, there are no data which have been made available to this Foundation to show that such groundwater and surface water does not eventually contribute sub- stantially to the degrading of the marine environment. The American Eagle Foundation made arrangements in 1973/1974 for the motor vessel "Vulcanus" - - a specially equipped incinerator tankship developed by industry in Europe - - to come to the United States from Rotterdam in late 1974 and demonstrate the feasibility of destroying 99.9 percent of the ship- loaded cargo of hazardous and toxic chemical wastes passing through the high- temperature incinerators. These wastes were chlorinated hydrocarbons; their lifespan, we are told, can be measured from the Ice Age to the present time. These chemical wastes are of the type that have been dumped in a raw and un- treated state into the Gulf of Mexico for more than 25 years, and into in- jection wells on land. In EPA's July 1975 report: "Disposal of Organochlorine Wastes By Incineration At Sea" (EPA-430/9-75-014), the results of determination of combustion ef- ficiency of stack gas composition ranged from 99.92 to 99.98% based on carbon analyses, for the first shipload voyage of the "Vulcanus", while burning Shell's wastes. Combustion efficiencies for the second shipload burned ranged from 99.987 to 99.998% - - these ranges of destruction efficiencies being much higher than the 99.9% specified in EPA's permits to incinerate. Marine monitoring surveys indicated there were no measurable increases in concentrations of trace metals and organochlorides in the water and marine life. With EPA having issued many dumping permits during the past several years to chemical and petrochemical companies to dump millions of gallons of their chemi- cal wastes into deep wells on land and also in the Atlantic Ocean and the Gulf of Mexico, common sense would dictate that any vessel that could destroy most of these types of wastes at even a 99.9% level would be better than dumping it as now. In the March 1976 issue of CHEMECOLOGY (of the Manufacturing Chemists Association) is noted: "Maritime Administration Offers Help To Develop Incinerator Ship Program "Impressed with the performance of a European incinerator ship, the Maritime Administration believes that the United States should de- velop its own capability to destroy toxic chemical wastes at sea. H 123 ------- •p. 4 ¦"Predicting that as many as four ocean-going incinerators eventually may be needed nationwide, the agency says it is in a position to help by converting some ships in the reserve fleet into disposal vessels. "In an environmental impact statement on the subject, the agency notes the growing volumes of hazardous residues and says that traditional disposal methods such as ocean dumping and landfilling are becoming increasingly intolerable from an environmental standpoint. "Of the 10 million tons of nonradioactive hazardous wastes generated annually in this country, the agency points out that 40 percent is inorganic and 60 percent is organic. Some 90 percent occurs in liquid or semiliquid form." In the Sixth Annual Report of The Council on Environmental Quality, dated December 1975, Chapter 1: "Carcinogens in the Environment", notes that chemicals introduced into our environment by our consumption pattern and way of life, can cause cancer; and that much of the cancer is probably associated with carcinogenic agents pro- duced by man. It also notes that cancer killed a reported 358,400 United States citizens in 1974. The technique of destroying hazardous and toxic chemical wastes by high-tempera- ture controlled incinerator tankships far at sea - - and away from masses of people - - is probably the safest method available to industry and government for the destruction of chemical wastes that contribute to the causing of cancer. America should give no less consideration to overcoming the detrimental effects caused by a ravaging deadly disease which attacks America's human resources than it does to the destructive effects of a hurrican or other natural disaster. The same effort of dedication by the government should apply to resolving both types of problems. Since the marine environment also suffers from pollution caused by land disposal (rather than destruction), there is no valid reason why EPA should abdicate its legal responsibility to the American people for controlling that pollution which it can help control, rather than continuing to withhold the valid technique of incinerator tankship destruction at the 99.9% level while the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, discusses this subject for the future. Sincerely Donald D. Carruth President DDC:cjt ------- #23 Response to comments received from the American Eagle Foundation, Chevy Chase, Maryland. The Regulations and Criteria do recognize incineration at sea as a potential alternative means of waste disposal, but point out that this is still essentially a developing technology and can not be regarded as an acceptable alternative at the present time. In the meantime, the disposal of any waste by incineration at sea will be conducted under a research or interim permit unless there is sufficient information on the specific site arid the particular operation to justify issuance of a special permit. Obviously, incineration at sea may certainly be a more environmentally acceptable alternative than many forms of land disposal, and a decision of whether or not to issue a permit will be based on an overall balancing of all the factors involved. These considerations are laid out in Sections 220. 3 and 227. 6. ------- Buhc tSnitjersitp iflarint laboratory BEAUrORT, NORTH CAROLINA 28316 August 27, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Mr. Wastler: I would like to comment on the proposed revision of regulations and criteria of ocean dumping as outlined in the Federal Register, Monday, 28 June 1976, part three. I feel a personal commitment to the Marine Protection, Research and Sanctuaries Act of 1972. I carried out research in 1968 and 1969 that was reported at the original hearings on this bill and I testified on the bill which led to passage of this Act. The virtually unanimous passage of this Act by both Houses of Congress signaled a new commitment on the part of the legislative bodies of the United States to the protection of our ocean resources. The Act has been successful in coping with the acute and highly dangerous forms of ocean dumping. As far as I know, there has not been a disposal of nerve gas or high-level radioactivity since the Act was passed. On the other hand, the Act has had little or no actual impact on the chronic dumping of materials that are not highly toxic in themselves but end up having a large environmental impact because of the great volume dumped in the ocean. I refer to the disposal of sewage sludge. The proposed regulation discussed the problem of trace contaminants in sewage sludge on page 26645 in the upper section of the third column. A defini- tion and quantification of the amounts of mercury and cadmium that will be permitted are laid out. I recognize the need to deal with the problem of sewage sludge disposal at sea, but EPA and the Congress should recognize that there is no such thing as "clean" sewage sludge. I refer specifically to page 227 of the EPA volume entitled "Water Quality Criteria 1972" (EPA-R3-73-033-March 1973). The first and primary recommendation relative to this subject is as follows: "Untreated or treated municipal sewage discharges should be recognized as a major source of toxic substances. Recommendations for these constituents will limit the amount of sewage that can be dispersed into estuaries {or the ocean)." Sewage sludge, while basically a harmless or beneficial compound (it is a good organic soil builder) is, in fact, a conveyor of highly toxic metals and synthetic organic chemicals. It is these metals and synthetic organic chemicals that must be monitored and that will determine whether or not sludge can be safely disposed at sea. *4 127 ------- Mr. T. A. Wastler -2- August 27, 1976 In this context, I should like to enter as evidence a graph of metal con- centrations in the sediments on a transect taken from a marine outfall. In theory this pipe discharges only secondary treated effluent; in practice, of course, it carries a small portion of wash-over sludge. This sewage treatment plant serves only residential areas of the Wrightsville Beach, North Carolina community. There are no industrial inputs or small companies on this line. Note in the figure that there a clear buildup of mercury in the first 40 meters below the pipe with enhanced concentrations of cadmium and chromium. These data show that a very low level discharge of sludge into a marine environ- ment will lead to buildup of undesirable concentrations of heavy metals in sediment. The material discharged from this source will, in all likelihood, meet the criteria in subsection B, paragraph 227.6 of the draft environmental impact statement. The material would be acceptable under the "trace contaminant" section and yet there was a buildup of metals in the sediments. The sewage sludge is a so,. .«» of toxic trace metals and when discharged in the ocean this material will accumulate. These observations lead me to suggest that there is no "safe" sludge material to be discharged or no "safe" way to discharge sludge. On the other hand, the concentrations that we see building up, while in excess of EPA levels, are not acute threats to the surrounding ecosystem. I believe it is necessary for Congress and the public to recognize that when a permit to dump sludge is permitted we are, in effect, drawing a circle around a portion of the ocean and saying "This portion will be degraded because social needs demand that it occur." let us not kid ourselves that we are "maintaining" this area of the ocean in an undegraded condition. It is simply not so. I recognize the societal needs that are at work in this issue. It was easy to ban the dumping of nerve gas and high level radioactivity. It is very diffi- cult to change the sewage disposal pattern for a metropolitan area involving millions of people. I believe we must be frank with the public and emphasize that, unless alternative sewage treatment processes are developed, they will continue to pay environmental costs in terms of a degraded continental shelf ecosystem. £ inrorolv Richard T. Barber Director Cooperative Oceanographic Program RTB:sjs H 120 ------- Wrightsville Beach Sewage Treatment Plant 2-| Mercury o- 4- Cadmium o- 40- Chromium £ 20- 0.400- C 0- Copper 2 io- ron 5- o o- 80- Lead 40- o- 20- Manganese 10- o- 800- 400- Zinc 20 40 60 80 100 120 Distance Below the Outfall (meters} 140 160 H 129 ------- #24 Response to comments received from Duke University Marine Laboratory, Beaufort, N. Carolina. Relating to 227. 6, the graph presented as evidence is a result of a continous outfall discharge. The buildup in the sediments is quite clear and points out the need for regulation of outfall of dis- charges as well as of materials dumped. The criteria for 227. 6 has been redrafted to make use of benthic bioassay procedures. When used in conjunction with the requirement of 228 on measured impacts at a site this should be adequate to take care of the concerns mentioned here. rt 130 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Review of the Proposed Revisions to """TJECT; Ocean Dumping Criteria - Draft tement. DATE: August 31, 1976 FROM: Kenneth Biglane, Director Oil & Special Materials Control Division Environmental Protection Agency 401 M Street, S.W. (HW-548) Washington, D.C. 20460 We have reviewed the subject draft impact statement and have the following comments to offer: The paragraph concerning Incineration at Sea is essen- tially correct (P, 104-105); however, it needs a few qualifications. The Shell organochlorine incineration in the Gulf of Mexico appeared to be environmentally acceptable under the rigidly controlled and monitored conditions applied to that disposal. These conditions are described in EPA Draft EIS entitled "Designation of a Site in the Gulf of Mexico for Incineration of Chemical Wastes" (April, 1976), and EPA-4309-75-014 "Disposal of Organochloride Wastes by Incineration at Sea". Future ocean incineration of other substances must be done under similarly controlled and monitored conditions. EPA Fom, 1320-6 (R»v. 4-72) ------- #25 Response to comments received from EPA, Environmental Impact Statement Review Section. The Regulations and Criteria do recognize incineration at sea as a potential alternative means of waste disposal, but point out that this is still essentially a developing technology and can not be regarded as an acceptable alternative at the present time. In the meantime, the disposal of any waste by incineration at sea will be conducted under a research or interim permit unless there is sufficient information on the specific site and the particular operation to justify issuance of a special permit. Obviously, incineration at sea may certainly be a more environ- mentally acceptable alternative than many forms of land disposal, and a decision of whether or not to issue a permit will be based on an overall balancing of all the factors involved. These considerations are laid out in Sections 220. 3 and 227. 6. a 132 ------- DEPARTMENT OF TRANSPORTATION MAILING ADDRESS; UNITED STATES COAST GUARD &WEP~7/73) PhonE: 202-426-3301 .5922/9.a 3 SEP 1976 «Director, Oil and Special Materials Control Division Office of Water Program Operations Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Sir: The concerned staff and operating elements of the Coast Guard have reviewed the Draft Environmental Impact Statement for Proposed Revisions to Ocean Dumping Criteria. The Coast Guard wishes to make the following comment: Consideration should have been given to auxiliary measurements of sediment particle size, suspensions, elutriate pH and the effects of aeration on the elutriate in cases where a sediment sample has failed the elutriate test. While with the Naval Oceanographic Office, Dr. Thejias P. O'Connor showed in NAVOCEANO Technical Note 6110-5-75, "Investigation of the Elutriate Test," that effects of the above conditions can give test results which are an artifact of the testing procedure and not representative of natural processes. The opportunity to comment on your draft statement is appreciated. Sincerely, R. 7. EIDEN Commander. U. S. Coc-st Guard Assistant r <:• , "=,rine Environmental Prctfictic.-! vision By direction o? • r,u Commandant H 133 ------- #26 Response to comments received from U, S. Coast Guard Head- quarters, Washington, D.C. The battery of test procedures for dredged material which include elutriate test, suspended particulate"bioassay, and solid phase bioassay give an overall picture of the impact that dredged material may have on the marine environment. Using tests on all phases of a waste should give a reasonably complete spectrum of the types of impacts that might occur due to any phase. H 134 ------- U.S. DEPARTMENT OF COMMERCE National Ocaanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE Southwest Fisheries Center P.O.Box 271, La Jolla, California 92038 September 1, 1976 T. William Musser Ocean Disposal Program Environmental Protection Agency 401 M St., S.W. Washington, D.C. 20460 Dear Bill: I leave for the Joint Oceanographic Assembly in Edinburgh on Monday and will not return until after your deadline of September 24. Therefore, 1 am returning the draft EIS for you to distribute to another reviewer. Reuben Lasker, Chief Coastal Fisheries Resources Division Enclosure ^ 1 H 135 ------- #27 Comments received from U.S. Department of Commerce, NOAA, Southwest Fisheries Center, La Jolla, California. No response necessary. H 130 ------- CARMINE T. PCRRAPATO CHAIRMAN THOMAS J. e!F£U_t ^VICC CHAIRMAN ROBERT J. DAVENPORT BEN W. GORDON JOSEPH M. KEEGAN CHARLES A. LAGOS COMMllltONKflft PASSAIC VALLEY SEWERAGE COMMISSIONERS BOO WILSON AVENUE NEWARK. N.J 07105 (20t) 344-1800 SEYMOUR A. L.UBKTKIN CHItr (HGINKtK CHARLES C. CAREU.A CMlif COUN11L MRB. CHARLES T. SCHAEOEL CLIRK.T*eA«U»CR September 8, 1976 Mr. T.A. Wastler, Chief Marine Protection Branch, Oil and Special Materials Control Division (WH-548) Enviromental Protection Agency 401 M Street Washington, D.C. 20460 Gentlemen: We understand that the comment period on the complex proposed rules on "Ocean Dumping" has been extended. The PVSC hereby submits the following comments for your consideration. We felt that the past philosophy that had grown up concerning ocean dumping was in error. Although there is no question that the protection of our enviroment is of paramount importance, the idea of setting rules for each section of our enviroment with the thought that, if the rules are too strict in that segment, then other segments would be utilized, has the effect of "painting ourselves into a corner" when all segments, independently, become more and more restrictive. Since all waste must go somewhere and the only known alternatives are via land, air or water we cannot arbitrarily say "no" to each. Therefore we are very happy to see a realization of the problem reflected in parts such as 227.2 (b) (3), 227.15 (c) and (d), and 227.16 (a) and we request these parts remain in the regulations. When we grudgingly admit of this problem and the "no" is replaced with restrictive "yes , but" and the "but" consists of many expensive tests, examinations etc we have done nothing except to waste our time, money and resources, which could be utilized more fruitfully in other more productive endeavors. I do not mean by this that research should not be done, but I do believe that it should be done through a research program under the auspices and financed by the Federal Government. It 8 137 ------- could thus be done much more efficiently than is presently being required of each permittee which has neither the resources, nor competence to do any of these things meaningfully. Thus we recommend that many of the sections concerning testing, monitoring, and assessment of the site be eliminated as a requirement of the permit and the work,site specific, be done by the Federal Authorities and if necessary allocate the costs among the various permittees requesting the use of a site in accordance with their intended use. Environmentalist will be satisfied, since the work would be done, and the results would be accepted with greater credibility than if done by a prospective permittee. The actual doing of the work would be done in a more efficient manner rather than repetitious partial attempts by numerous permittees at the same area, since the permittee may be forced to economize to the detriment of individual studies. Another very important part is, when determining the concentration of an item that may be dumped, it may be more important in knowing a leaching rate of this material into the surrounding water than the actual concentration of this item in the dumped material. Thus, for example, a cadmium plated rod would have less adverse effect than a very soluble form of cadmium even though a chemical analysis of the rod showed a much higher percentage of cadmium. In sludge this phenomena should be considered and the allowable concentration of many materials could be increased considerably when we realize that the solid phase is absorbed or leached into the sea enviroment very slowly for the precipitated residue lying on the ocean bottem. We also must decide (and we havn1t) whether we prefer the alternate of spreading the dumping over a large area so that there is no significant measurement of sediment on the bottom but we may be affecting a larger water column during dumping (such as the Philadelphia method) or whether we will allow an accumulation which alters a relatively small area by suffocation but where the overall effect of the sea column may be over a smaller area (such as the New York Bight area). With all of the above in mind we make the following specific comments. Part 220.3 (d) (2) . We feel the phrase ".... or from the expansion or modification of an existing facility,...." should be deleted. To our knowledge all present permittees are being required to phase out ocean dumping by December 31, 1981. During this work, M 138 ------- _3- in almost all cases, there is an "expansion or modification of an existing facility" in order to upgrade its treatment. We are afraid that a strict interpretation of the restriction, including the above phrase,would prevent the issuance of an interim permit after April 23, 1978 and could subject the issuance of such a permit to possible criticism. Part 221.1 (b) The phrase "... including information on the transporting vessel's communication and navigation equipment " may cause problems. Much of the dumping is done by barges which require tugs to take them to the dump area and return. Although the barges themselves are limited and generally are specific for the dump work the tugs are general tugs used on much other work throughout the harbor with many, many different tugs used. To send in a list of the equipment on all tugs could be voluminous, time consuming and a duplication of information already in the hands of the Coast Guard. In addition it would be quite easy to miss a tug that might be used; We believe this information is superfluous and not necessary and can be obtained by the Coast Guard in other ways. In addition by making this a condition of a permit, claims for cost of this material will be made by the hauler against the permittee. Part 221.1 ------- ocean dumping is the best ecological alternate despite the fact that the order is to cease by December 31, 1981. Part 222.12 (a) We believe this should be changed to "Within 10 days following receipt of notice by the appealing party of the determination of the....... As presently worded, a determinatio could be made and notification not made until it was too late to appeal. Part 223.1 (a) (5) We think "tons" is a poor criteria. Measurements are usually volumetric (gallons, cubic yards etc.) and the conversion to "tons" may be arbitrary with different formulae (depending on presumed specific gravity) used by different authorities. Part 223.1 (a) (9) This monitoring requirement should be deleted as a specific item. If the Administrator deems this necessary, in a specific case, he may require it in item (10). In many areas there are a large number of permittees dumping at a single site and the monitoring should be the responsibility of USEPA. If necessary substitute a paragraph which states that the "cost of monitoring the site, done by USEPA, shall be borne proportion ately by the permittees....". Thus the monitoring would be done to the satisfaction of the public, at a cheaper rate than if each permittee must individually monitor. Other wise some permittee, who dispose of small amounts, may be required to expend a large amount of money to monitor far beyond its ability to pay or relative responsibility for its moral obligation. Part 227.2 (b) (1) We feel that the phrase " or in a form so that its leaching rate into the surrounding water is acceptable" should be added after except as trace contaminants." We feel this is necessary because many times a chemical analysis will indicate amounts above "trace " amounts but it is in a form that will not leach or will leach very slowly so as not to adversly affect the surrounding waters, thus, under those circumstances, it should not be prohibited. Part 227.3 (a) Same comment as Part 227.2 (b) (1) H 140 ------- -5- Par t 227 , 6 Same comment as Part 227.2 (b) (1) Part 227,6 (b) (1) and (2) In all the the liquid phase solid phase. We are reversed. I of o.6 mg/kg in done studies on and the amount o (solid phase). hurt no one. We more reasonable ecology at all. analysis we had done on sludge we have found relatively low with most of the metal in the think the criteria - liquid and solid phases n addition we feel the criteria for Cadmium the solid phase is ridiculously low. We have some domestic sludges (no industrial waste) f cadmium ranges from 6.0 to 8.0 mg/kg Obviously, strictly domestic sludge would suggest the solid phase criteria be set at a 8.0 mg/kg for Cadmium. This will not hurt the Part 227.6 (b) (4) This is not a very good criteria for oils and greases. More than volume ratio, the shape of the container and amount of surface area would affect whether a sheen was visable. Also the undisturbed water will exaggerate the effect. I would say in an undisturbed water sample at a ratio of one part waste material to 1000 parts of water with a ratio of volume to surface area of approximately 10. Part 227.7 (e) Care must be taken to define the location of the oxygen deficiency. In almost any case, the oxygen deficiency close to the bottom will be depressed much below the 25% level even with preferably acceptable material. This is not necessarily in of itself bad, since it will tend to keep fish away from this desposition area. The criteria of where to measure the oxygen level to determine the 25* level should state a depth such as "midway between surface and bottom." Part 227.17 Add (c) (1) Impact of alternates disposal on air or land. to ocean disposal Part 227.29 (b) (4) We feel the column of water in the mixing zone shall be 80% of the actual depth of the water at the dump site. Although a significant amount of sludge will never reach the bottom, there is a large lateral drift which disperses the material making a significantly larger volume available for dispersion than is considered when using only the 20 meters depth allowed. As to the amount that reaches the bottom this is a function fo the type of sludge. A rt 141 ------- digested activated sludge is light and will not settle rapidly but will disperse over a larger area while a primary sludge or a heat treated sludge will settle faster so that a significantly larger portion will reach the bottom and in these cases a greater depth should be allowable. In both cases more than the 20 meters should be allowed. The PVSC thanks you for any consideration its comments receive. Very truly yours. .AGE COMMISSIONERS PASSAIC vall: S.A. Lubetkin Chief Engineer SAL/ps rt 142 ------- #28 Response to comments received from the Passaic Valley Sewage Commissioners, Newark, New Jersey. The responses follow the order of comments as submitted. General - The tests required to be performed on wastes are not research; they are routine procedures needed to determine the acceptability of materials for dumping. Baseline surveys are the responsibility of EPA, not the permittees, and the monitoring program includes the cooperative efforts of many entities other than the permittees. Part 220. 3(d)(2) - The language of this section has been changed to cover only the dumping of an increased amount of material from such expansion or modification. 221. 1(b) - There is no intent to have the applicant list every piece of com- munication and navigation equipment aboard each vessel used for dumping. It is necessary, however, that EPA be assured that such vessels be ade- quately supplied with communications and navigational gear in order to locate the dumpsite and respond to Coast Guard monitoring vessels or aircraft. 221. 1(e) - An exact dumping schedule is not required in the application; it is necessary, however, for EPA to know for what length of time a permit is being requested and how often dumping will occur within that time period. 221. l(j) and (k) - It is unnecessary for an applicant to re-submit on each application any information which has not changed and is a matter of record. These requirements are, therefore, not burdensome for a continuing dumper. Evaluation of environmental impact and availability of alternatives are key factors in any permit action, and each applicant must bear his share of the effort required. rt 143 ------- COASTAL ZONE MANAGEMENT Executive Snvtrcnmenta/ 400 <~^am6ree^e Street Hoa6m., isMateacAmetti 02202 September 3, 1976 Mr. T.A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Addendum to Comments on E.P.A,'s Ocean Dumping Proposed Revision of Regulations and Criteria 1.- The introductory summary of proposed changes says: "permits for the disposal of dredged materials in the territorial seas, i.e. the waters outside the baseline but not more than three miles from shore will be issued, if at all, under the Ocean Dumping Act rather than under Section 404". How does this judgement affect permitting procedures and Corps of Engineers involvement in dredge disposal activities? How does this judgement affect coordination with state permitting authorities? 2.- Section 225.3-225.4 provides that should the Corps decide that disposal is required at a specific site due to the unavailability of economically feasible alternatives it may request a waiver from the E.P.A. which must be granted unless the Administrator of the E.P.A. can determine "that the proposed dumping will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas". However, no criteria are established by which to judge 'unacceptability'. This Office has some concerns as to the strength of any case the E.P.A. might be able to bring before the courts to support such a determination, given the wording of this regulation. 3.- Section 227.13 states: "Changes in the concentration of dissolved chemical constituents affiliated with sediments may best be estimated by use of an elutriate test. To the extent permitted by the state-of-the-art, expected effects such as toxicity, stimulation., inhibition, or bioaccumulation may best be estimated by appropriate bioassays ... Consideration should also be given to the possible presence in the sediments of (specific contaminants)". H 145 ------- However, it is not clear in the proposed regulations whether elutriate tests are actually required when such procedures would be of value in determining if the material is acceptable for ocean dumping, and, if resulting in levels exceeding permissible limits, whether bioassays are required or merely optional. Nor does this section make clear whether bulk assays are required In analyzing dredged materials, or under what circumstances, if any, bioassays would be required based upon sediment concentrations of contaminants. It has been shown in some instances that dredged material may indeed pose a problem to biota, as evidenced in shellfish tests, even though elutriate tests showed water quality at an acceptable level. Section 227.13(d) "the District Engineer may" should read "the District Engineer shall". 4.- Section 227.27 refers to water quality criteria for dredge spoil disposal. It is the understanding of this Office that no such criteria exist at this time. 5.- 228.7 and 228.9 read respectively: "Where necessary" and "if deemed necessary". This Office feels that both regulation of disposal site use and monitoring of sites should be mandatory. In addition, the dumping activities themselves should be required to be monitored to an effective degree to ensure accurate dumping at designated sites. Historically, premature dumping has been a significant problem. Sincerely, Director Coastal Review Center JL:SRA:sar H 146 ------- #29 Response to additional comments received from the State of Massachusetts, Coastal Zone Management, Boston, Mass. 1. The FWPCA and the Act both cover the territorial sea. This provision merely clarifies which set of regulations will prevail in the territorial sea. It does not change the regulatory process for dredged material disposal. 2. The wording used in the regulation is that of the Act. A deter- mination of unacceptability would have to be made on a case-by-case basis. 3. 227.13 - The redrafting of the dredged material criteria now re- quire an elutriate test and bioassays on the sediments. It was agreed at the workshop ( see Appendix G) that bulk sediment analysis provides very little if any information on the impact of dredged material in the marine environment. 4. 227. 27 - The water quality criteria are specified in Section 227, 31. 5. 228. 7 and 228. 9 - We believe that monitoring resources should be used where problems may reasonably be expected to occur, rather than require monitoring in all cases to obtain information which may or may not be useful. H 147 ------- #29 2 223. 1(a)(5) - "Tons" was chosen for general use as being the most widely used measurement unit. Conversion to other sets of units should be accurate and not arbitrary if the specific gravity is known. 223. 1(a)(9) - This provision is discretionary for the Regional Administrator, and need not be changed. The scope of a national monitoring program has not yet been decided, and until then this level of discretion is needed. 227. 2(b)(1) - The redrafting of Section 227. 6 takes care of this consideration and no additional change is needed here. 227. 3(a) - Same as above. 227. 6 - The redrafting of Section 227.6 covers these considerations. 227. 6(b) (1) and (2) - These concerns are adequately addressed in the redrafting of Section 227.6. 227. 6(b) (4) - The oil sheen test has been used in other regulatory programs and is a legally accepted criterion to be used in such cases. 227. 7(e) - The oxygen deficiency is specified in the criteria as an overall calculated oxygen deficiency based on the characteristics of the waste. The actual situation in the dump site would certainly vary from time to time, but it is not sufficiently predictable to permit a specific statement of where the oxygen deficiency is likely to occur as part of the criteria. rt 148 ------- #29 3 227. 17 - The evaluation of Subpart D includes consideration of the consequences of the alternatives. 227. 29(b) (4) - The determination as to whether a waste should be spread over large areas of the ocean bottom or that an attempt should be made to restrict it are a matter for consideration on individual permit applications. We think the regulation should, and does, provide the flexibility to allow for either approach to be taken on a case-by-case basis. H 14 'J ------- National Wildlife Federation 1412 16TH ST., N.W., WASHINGTON, D.C. 20036 Phone 202-797-6800 September 8, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-448) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Re: NWF Comments on DEIS on Proposed Revised Ocean Dumping Criteria (7/16/76) Dear Mr. Wastler: I attach a copy of the National Wildlife Federation's analysis of the captioned Draft Environmental Impact Statement. An additional copy, along with transmittal letter, has been sent to Ken Biglane, per the instruction in the DEIS.. Since our comments on the criteria and our comments on the DEIS are integrally related, the accompanying comments on the DEIS should be treated as supplementing our earlier comments on the proposed revised criteria. I plan to respond shortly to the questions posed in your letter of August 13- Sincerely, Kenneth S. Kamlet Counsel Attachments (2) & H 151 ------- National Wildlife Federation 1412 16TH ST., N.W.. WASHINGTON, D C. 20036 September 8, 1976 Mr. Kenneth Biglane Director, Oil and Special Materials Control Division (WH-548) Office of Water Program Operations Environmental Protection Agency 401 M Street, 31.W. Washington, D.C. 20460 Ees MW Comments on DEIS on Proposed Revised Ocean Dumping Criteria (7/16/76) Dear Mr. Biglane: The National Wildlife Federation's analysis of the Draft Environmental Impact Statement on "Proposed Revisions to Ocean Dumping Criteria" has been sitting on my desk since August 13. This has been my first opportunity since that time to draft this transmittal letter. Our comments largely concern those portions of the DEIS which deal with the ocean dumping criteria applicable to dredged material. In contrast to the balance of the DEIS, dealing with non-dredged wastes, which we regard generally as satisfactory (and in some cases, exemplary) in documenting the basis for the regulatory approach applied to such waste, the dredged material portions are conclusory, self-serving, and otherwise totally inadequate. The DEIS makes sweeping generalizations (which are entirely unexplained and undocumented) about the need for "special tests" to evaluate dredged material effects (see, Comment 11), how the "major pollutional effect" associated with the deposition of ocean-dumped dredged material is associated with the release of adsorbed contaminants to the environment (see, Comment 12), and how the revised elutriate test procedures represent a "considerable improvement"over the previous procedures (see, Comment 20). These tenuous assertions should be fully justified. The DEIS also totally lacks explanations, on an item by item basis, of why procedures or approaches applied to non-dredged wastes cannot be or are not being applied to dredged material (see, e.g, Comment 25). The DEIS should discuss as well other alternatives to elutriate tests and dredged material bioassays for characterizing dredged material (e.g., use of chemical extractants, bulk analyses, and bioaccumulation studies) (see, e.g., Comment 4). Discussion of these alternatives is essential, whether or not it is possible to quantify the impact on the marine environment of changing any specific limitation in the criteria (see, Comment 2). Additional deficiencies are identified in the accompanying detailed analysis. H 152 ------- National Wildlife Federation With respect to the. DEIS treatment of non-dredged mates, the only major shortcomings are the lack of justification for failing to define "trace contami- nant •" (see, Consents 3, 6, 15), and the aisleading and incomplete discussions of dilution and dispersion phenojbaena (see, Comments 7, 8, 9, 14, 19, 29). Finally, 1 append a copy of our analysis of the proposed revised ocean dumping criteria themselves. Since our comments on the criteria and our comments on the DEIS are integrally related, ve trust that the Final Impact Statement will respond to the concerns we have raised in both of these submissions. Please do not hesitate to contact me, if further clarification is re- quired on any of our comments. (Ve will be responding shortly to a request, dated August 13, from Mr. Vastier for clarification of certain points raised in our comments on the criteria.) The opportunity to comment is appreciated. Ve trust EPA will evaluate all comments received promptly, and will proceed to final rulemaking as expeditiously as possible. Sincerely, Kenneth S. Kamlet Counsel Attachment and Appendix cc: Mr. T.A. Vastier W 153 ------- National Wildlife Federation 1412 16TH ST., N.W., WASHINGTON, D.C. 20036 ANALYSIS BY THE NATIONAL WILDLIFE FEDERATION OF THE ENVIRONMENTAL PROTECTION AGENCY'S DRAFT ENVIRONMENTAL IMPACT STATEMENT ON i "PROPOSED REVISIONS TO OCEAN DUMPING CRITERIA" (JULY 16, 1976) August 13, 1976 i i i Sequential (Page-By-Page) Comments (key comments denoted by "*") 1. P. i (see also, pp. v, 91, 137): States that the revised j ] criteria "reflect significant Improvements over the existing criteria . ; i I . . Yet elsewhere In the DEIS (see, e.g., pp. 139» 150) it is said J that "the proposed criteria do not represent a change in EPA policy . . * , nor do they represent a new regulatory approach," and that "the impacts of the proposed criteria are basically similar to those associated with the existing criteria." If the revised criteria do not better protect the environment than the old (i.e., do not significantly alter the impacts of the old criteria), how can they be said to reflect "significant improvements" over the old criteria? I *2. P. ill (see also, p. 117): It is stated that "changes in individual specific limitations in the criteria are not regarded as real alternatives within the context of this EIS," because "[i]t is i not possible, within the present state of knowledge, to quantify the ; impact on the marine environment of changing any specific limitation in | the criteria." Since when is the ability to quantify Impacts of | changes in criteria a prerequisite to consideration of such changes? J i Phone 20?— 79?-6800 1 H 154 ------- -2- Qualitative evaluations are certainly possible. For example, it is perfectly obvious that the elutriate test is useful, at most, only in evaluating short-term effects on water quality. It tells one nothing about biological availability (to filter-and deposit-feeders, and to benthic organisms which live over, under, around, and through deposited dredged material) of dredged material contaminants. And it tells one nothing about chemical and biological transformations of dredged material contaminants which may increase their solubility and/or toxicity (e.g., microbial methylatlon of inorganic mercury; the same phenomenon has shown to operate for at least half a dozen toxic metals). One doesn't need to be able to quantify impacts to tell that the elutriate test is inadequate and must be supplemented by other mandatory procedures in order to properly evaluate the Impact potential of polluted dredged material. A number of alternatives present themselves (some are discussed below). Some may be too costly or too difficult to perform, but that doesn't Justify the DEIS's failure to even address them. Much the same could be said for some of the other criteria. (E.g., the DEIS should discuss limits of detection and the use of § 227.6(b) criteria as definitions of "trace contaminants"; if the real reasons these limits have not been adopted relate to economics and technical feasibility, the DEIS should say so). *3. P. 20; It is stated that the considerations explicitly stated in Section 102(a) of the MPRSA and in Annex III of the Convention , and the lists in both the Act and the Convention of prohibited materials, "must be turned into specific criteria by which a permit application can either be approved or rejected." We agree. How then can EPA H 155 ------- -3- Justify the failure of the proposed revised regulations to provide specific criteria for implementing the prohibition (§ 227.6(a)) against ocean dumping Annex I substances "as other than trace con- taminants"? Clearly it is not "impossible" to prffvide specific criteria. For example, the DEIS itself (see, e.g., DEIS at 40, 78) acknowledges that "trace contaminant," both conceptually and "by general agreement," is a constituent present in a waste in concentrations "usually near the limits of detectability by standard analytical methods." Why does the DEIS not contain any discussion of detectability limits for Section 227.6(a) constituents? Why is it not "possible" to define "trace contaminants" in terms of detectability limits? Also, why does the DEIS not discuss the use of Section 227.6(b) criteria as at least interim definitions of "trace contaminant" levels? These criteria are Justified in great detail in the DEIS (see, e.g., pp. 38-5*1). Is there any reason it is not "possible" to define "trace contaminants" in terms of these § 227.6(b) criteria? If there are any reasons, the EIS should discuss them. *4. P. 30; It is stated that "special tests" are needed for dredged material, "to determine how much material [presumably, contaminants] is released to the environment . . . , since solid phase bioassays have not been developed, and bulk or total sediment analysis give [sic] no meaningful information on the immediate or long term impact of dredged material dumping." This is a series of non-sequlturs. H 156 ------- -4- First, it incorrectly assumes (see discussion to the contrary in the DEIS, at pp. 22-28) that polluted dredged material can adversely affect the environment only through the release of contaminants into the water. This is not so, biological accumulation and food chain contamination can occur without any "release" to the water. Second, it asserts without documentation or justification, that solid phase bioassays have not been developed. Such bioassays may not be in general use, but they certainly exist, and additional procedures are capable of being readily designed. For example, Dr. Rick Swartz of EPA's Corvallis Lab has done successful bioassay work on dredged material using benthic. organisms; Drs. J.E. Gannon and A.M. Beeton of the Center for Great Lakes Studies, University of Wisconsin-Milwaukee, have successfully performed dredged material bioassays on both plankton and benthos; and the Corps' own Dredged Material Research Program has recently issued (May 1976) an interim guidance manual for implementing Section 404(b)(1) of theWater Act, which includes an algal bioassay procedure which is readily applicable or adaptable to dredged material as a whole (and not just to elutriate water). The EIS must describe available bioassay procedures and indicate why EPA believes that such procedures, or other procedures which could be readily developed, cannot be applied — even on an interim basis — to dredged material. The EIS should also / explain why bioassays can be carried out on sewage sludge, which is part solid, but not on dredged material which resembles sludge in many ways. And the EIS should explain how the bioassay requirements of Section 227.13(d) are going to be carried out if solid phase bioassays have not been developed. H 157 ------- -5- Third, the quoted statement asserts, again without documentation or justification, that bulk or total sediment analysis give [sic] no meaningful information on the immediate or long term impact of dredged material dumping. In fact, such analyses can be very meaningful and very useful. EPA, in making the quoted assertion, probably had In mind the so-called "Jensen criteria," first established in the late 1960!s by the Department of the Interior. These bulk- sediment criteria were based on hundreds of sediment analyses performed on samples from all along the Great Lakes. They have been criticized as not taking sufficient account of the range of natural variability in sediment composition (particularly, in areas outside the Great Lakes). There is some validity to this criticism, as well as to other criticisms relating to the suitability of various of the parameters selected for evaluating dredged material composition (e.g., the COD test is too nonspecific; Total Kjeldahl Nitrogen measures too much; volatile solids content provides little or no specific information). However, these criticisms do not detract from the basic value (in fact, the necessity) of knowing the composition of materials being ocean dumped (see, e.g., DEIS, at 21-22, 23-25). Arid, while it is important to distinguish natural sediment components from the presence of extrinsic contaminants, this is a problem only for heavy metals. Organohalo^fleis, oxygen-demanding organics, nutrients, and micro- organisms, if present in dredged material, are there as contaminants and are all potentially biologically available. There is absolutely no reason for not requiring bulk or total analyses for these constituents — at leasi where there is any possibility of their presence. Even in the case of heavy metals, it is possible to screen out natural H 150 ------- -6- background contributions In the very same way as has been done in Section 227.6(b) for mercury and cadmium compounds. Again, there is no reason for not requiring bulk analyses, not as an end in them- selves, but as a means of estimating extrinsic additions of toxic heavy metals. Finally, the statement erroneously implies that solid phase bloassays and bulk sediment analyses on the one hand, and elutriate testing on the other hand, are the only available options. That is not the case. Selective chemical extractions could be performed which would approximate levels of heavy metals, for •«ample, which could conceivably be biologically available. Dozens of different extractants could be used, running the gamut from total extraction as In the bulk sediment analysis, to minimal extraction as in the elutriate test. The Dredged Material Research Program has developed test protocols for doing just such a series of extractions. The EIS should discuss the use of selective chemical extractants and should document EPA's apparent belief that such procedures are not meaningful alternatives. Apart from chemical extractions, bioaccumulation studies would be an additional means (not addressed by the DEIS in this context) for characterizing polluted dredged material destined to be ocean-dumped For example, a scientific workshop held by EPA at College Park, Md., June 18-20, 1975, concluded that "potential exposure of humans to toxicants using a critical pathways approach could provide a rational basis to predict the threat to human health of the proposed deposit tf orlrshoD of dredge materials." As an example the/ proposed that "levels of toxicant enrichment In selected organisms which show detectable evidence of pathohistological damage, such as fin rot disease, cancers H 159 ------- -7- or tumors, should be studied to determine their effects." (The Workshop concluded unanimously, by the way, that the elutriate test procedure had "little scientific utility in providing information to predict ecological impact" and that, In general, "the elutriate test was found to provide Information of such marginal value as to not justify the costs of performing the analysis"). In short, the EIS must document and Justify its repeated assertions that dredged material requires and deserves special treat- ment and need not be evaluated as rigorously as all other ocean- dumped wastes. •5. P. 33: States EPA's approach of "accepting" a list of interim dredged material dumpsites recommended by the Corps of Engineers. This statement, as well as the ambiguous wording of the proposed revised ocean dumping criteria, leaves unclear the respective roles of EPA and the Corps in ocean dumpslte designation and appears to misconstrue the Intent of Congress. Thus, the only agency authorized by the MPRSA to designate recommended ocean dumpsites (§ 102(c)) is EPA. The Corps' role is limited to making an independent determination as to appropriate location for dumping, but to using, "to the extent feasible," the recommended sites designated by EPA (§ 103(b)). The proposed revised criteria and" the DEIS indicate that EPA has abdicated its statutory obligation to designate dredged material dumpsites. The EIS should spell out clearly what EPA's role (and the Corps' role) will be in designating dredged material dumpsites, in doing baseline and site studies, in listing interim and final dredged H 160 ------- -8- material dumpsites in Part 228, in preparing environmental impact statements on the designation of dredged material dumpsites, in placing limits on pollutant buildups at dredged material dumpsites, and in conducting follow-up monitoring of dumping Impacts. Any differences in approach ^ward dredged material dumpsites than toward other dump- sites should be fully explained and justified. 6. P. 40 (see also, p. 78): The statement is made that, despite the conceptual and generally accepted meaning of "trace contaminants" (I.e., a concentration near the limits of detection), and the Convention's prohibition against dumping Annex I substances as other than trace contaminants, the development of a regulatory criterion must await something more. What EPA appears to be saying here la that despite the Convention's intent to prohibit dumping of certain substances in more than trace amounts, as the term "trace" is commonly understood, EPA disagrees with the Convention's framers that this is the right way to proceed. Instead, EPA says It requires more time to come up with its own substitute approach, based upon toxicity. What we wish to know, is where EPA gets the legal authority to substitute its own Judgment for that of the framers of the Convention and the authors of the MPRSA (which incorporated by reference the Convention's requirements)? The EIS must explain, if it can, how EPA justifies its failure to define "trace contaminant" in its generally accepted way — at least until a better, scientifically and legally defensible substitute approach can be developed. *7. Pp. 45-46: The discussion of initial mixing unjustifiably Implies that ocean-dumped wastes will Invariably do one or the other H161 ------- -9- of two things: "be dispersed rapidly into the seawater" or "settle rapidly to the bottom." In fact, many other things may happen. Insoluble or low density wastes may float or remain in suspension at various levels in the water column for extended periods of time as discrete, cohesive entities. For example, DuPont-Edge Moor's acid- iron titanium dioxide wastes were observed by American University researchers in identifiable forms within the water column for 4 or 5 days following a dump. Physical discontinuities (thermoclines, pycnoclines, etc.) in the water can encourage this behavior. So can certain current patterns, such as the well-known "loop current" in the Gulf of Mexico, which may act to concentrate rather than disperse ocean-dumped wastes. In addition, monomolecular surface layers of hydrophobic materials, which are ubiquitous throughout the ocean, are known to preferentially concentrate and sequester chlorinated hydrocarbons and other chemicals. And, fish, shellfish, and other marine organisms are often able to bioaccumulate and pass through the food chain persistent chemicals — even after dilution or dispersion has occurred. Mixing and dilution phenomena are not really relevant to certain types of chemicals. As Dr. Wilson Talley (EPA Assistant Administrator for Research & Development) testified at a Sept. 2k, 1975» congressional oversight hearing, dilution phenomena provide adequate protection only "for those materials which are known not to accumulate in marine species, which are readily biodegradable, and whose toxicity is such that following a short-term dilution will cause nc ecosystem damage." The EIS and, for that matter, the revised criteria should be revised to reflect this fact of life. n 162 ------- -10- *8. Pp. 45-50: The discussion of initial mixing and of the reasonableness of various dilution factors, ignores many important considerations. It treats parts of the ocean receiving wastes as large bathtubs containing only seawater and being continually mixed by high-powered mechanical stirrers. The behavior of brightly colored dyes (at 46) is relevant only to liquid wastes of the same densities and solubilities. The rate of dilution of a material of approximately the same density of seawater (at 47) has little relevance to most ocean-dumped wastes. And, it does not necessarily follow (at 47) that, if a given waste concentration kills 50 percent of a test population after 96 hours, concentrations less than 0.0001 of that required to acutely damage 50 percent of the organisms would exist at the point of discharge within four hours after a dump. In the first place, the four-hour initial mixing period does not take into account the additional exposure which occurs while the dump is going on. Thus, a dump which took 8 hours to complete (not beyond the realm of possibility) would confront organisms at the dump site with 12 hours (8 plus 4) of unregulated exposure. In the second place, the four-hour period does not take into account the existence of dump sites which are in continuous use by multiple dumpers. As soon as one dumper completes his dumping, another begins. At any given moment organisms at the dumpsite are likely to be unprotected because very seldom will the dumpsite be free of dumping or its four-hour aftermath (i.e., it will always be in someone or other's initial mixing period). The analysis also Ignores the fact that the 96-hour bioassay only measures acute lethality. Chronic lethality or even acute sublethal damage are not evaluated by such a bioassay. Either of these could occur in very much lower concentrations and/or very H 163 ------- -11- much less time than It would take to kill half a test population In four days. The 0.0001 variance assumed on page ^7 between the 96-hour bloassay result and the acute damage caused after 4 hours, falls even to take account of the application factor (of 0.01), discussed on page 48, which must be used to predict chronic effects from the results of acute tests (this alone would reduce the Indicated variance by a factor of 100). In short, the DEIS does not adequately document and justify the use of a 10,000X Initial mixing factor In developing I 227.6(b) liquid-phase limits for mercury and cadmium compounds. The large number of relevant complicating factors dictates either the use of a very much smaller mixing factor or initial mixing period (I.e., assuming no more Initial mixing than perhaps 100 - 200X), or the use of no initial mixing period at all. In any case, the EIS should fully consider and discuss all of these factors. 9. P. 58: It Is not correct, as stated here, that the maximum time organisms would be exposed to acutely toxic waste concentrations would be less than two hours (assuming that a 10,000X dilution will be achieved in four hours). This is so, for the same reasons discussed In the previous comment. Dumping could be virtually continuous at the site by virtue of multiple dumpers. And/or the period of exposure could be far greater than k hours If a long time is taken to complete a single dump (either because the LPC Is low or for some other reason). 10. P. 61: The statement Is made that the regulatory prohibition (§227-7(c); formerly, § 227.36) against dumping wastes containing living organisms "Is not directed toward sewage sludge. . but toward "experimental laboratory wastes which Involve the results of tests of biologically active pathogenic organisms . . . ." Nothing 164 ------- -12- in the ocean dumping criteria, existing or proposed revised, makes this distinction. Does EPA propose to amend its regulations by way of a comment buried in a draft impact statement and without going through required Administrative Procedure Act rulemaking procedures? How can EPA justify treating pathogens in sewage sludge differently from pathogens from any other source? Indeed, pathogens associated with sewage may be more deadly than those in experimental laboratory wastes, because of their association with excreted antibiotics and their propensity to develop transferable antibiotic-resistance. The sludge dump site in the New York Bight has been called a "breeding ground" for such antibiotic-resistant microorganisms. The scope of proposed § 227.7(c) should be left as is and references to any narrowing of this scope should be deleted from the EIS. *11. P. 62(see also, DEIS at 121): It is asserted that the MPRSA and the Convention put dredged material in a different category than other wastes. This is given as justification for taking a different and less restrictive appi|s|bfch in regulating dredged material ocean dumping than in regulating the dumping of other wastes. In fact, however, there is not a single shred of evidence that either the MPRSA or the Convention Intended for dredged material to be more freely ocean-dumped than other waste types. The MPRSA treats dredged material in one section (§ 103) and non-dredged wastes in another (§ 102), only because of a desire on the part of Congress to vest authority over disposal of dredged material in the same agency which historically has had authority over other aspects of dredging. This was the same approach taken in the Water Act (§ 404) and for the same reason. As far as the Convention is concerned, "other matter" is H 165 ------- -13- referred to as a category distinct from "wastes," for reasons that are not specified. Whatever the reason, nothing in the Convention treates "other matter" any differently from "wastes." Moreover, sewage sludge is just as much "other matter" as is dredged material, yet, EPA has never contended that sewage sludge can be regulated less closely than industrial wastes. EPA appears to recognize the weakness of its legal argument. It acknowledges in one place (at 62) that the Convention points out that "the same care is to be taken in the disposal of dredged material in the ocean as in the disposal of anything else that is proposed for ocean dumping," and in another (at 136) that the criteria to be applied to dredged material "must provide the same critical analyses that are prerequisite for review of permit applications for disposal of municipal and industrial wastes." The final EIS should delete any reference to the spurious claim that the law somehow Justifies different and/or looser treat- ment of dredged material than of other ocean dumping. Instead, the FEIS should attempt to justify and document in as much detail as necessary the need and basis for any and all disparities in regulatory approach toward dredged and non-dredged wastes. Reasons must and should be provided for failing to apply any. provisions of Parts 227 and 228 to dredged material. *12. Pp. 64-65: The statement is made that the "major pollutional effect of the deposition of dredged material in the ocean is associated with the release of absorbed contaminants to the environment during deposition, and the concomitant toxicity they Introduce to the aquatic * 166 ------- -11- environmentNo documentation is provided in support of this statement. The statement is almost certainly not correct. All indications are that contaminants that remain associated with suspended dredged material particles and the settled dredged material mass have a greater potential for adverse environmental impact than do contaminants that are water-soluble and are readily leached into the water. Work by the Dredged Material Research Program for example, has shown that very little if any of the toxic heavy metals of concern are released to the water column in the course of dredging and dredge disposal. Rather, they remain behind and it Is there (In association with the sediment particles) they can be Ingested by marine organisms. *13. P. 66: The statement is made that "the elutriate test does provide a reasonably accurate measure of the Impact of dredged material on the environment at the disposal site, and is a useful test for determining the acceptability of dredged material for open ocean disposal." We disagree. So lid the participants (unanimously) at the June 1975 College Park Workshop (see Comment 4, supra). Even the DEIS (at 65) acknowledges that the elutriate test "lacks scientific elegance, and it will almost certainly be discarded when a demonstrably better test Is available." The limitations of the elutriate test must be recognized. It measures only short-term water column effects. It tells one nothing about benthic effects or about longer term effects. Additional biological and chemical testing are required to evaluate significant marine environmental effects not picked up by elutriate testing. H 167 ------- -15- 14. P. 66: The statement that there Is little potential for the buildup of toxic pollutants from dredged material in or near the disposal site in open ocean disposal is simply untrue. Whether or not it is true even for soluble pollutants, it is certainly not true for pollutants associated with the solid phase which settle to and build up on the ocean bottom. Moreover, buildups at the disposal site are not the only thing we're concerned about. We are concerned about accumulation of toxic materials anywhere in the ocean. *15. Pp. 80-81: The discussion on these pages indicates that a constraint on setting trace contaminant limits for mercury and cadmium was the lack of documentation on the toxicity of mercury and cadmium in the marine environment. It is pointed out, however, that recent Information gathered by EPA provides the needed documentation. This being so, how does EPA justify the statement made in the preamble to the proposed revised ocean dumping regulations and criteria that "defining a trace contaminant in.numerical terms is scientifcally impossible"? *16. Pp. 84-85: The kinetics of mercury methylatlon by micro- organisms is discussed,with the conclusion advanced that "the release of methyl mercury from the solid phase of sewage sludge proceeds at such a low rate that there would be very low probability of mercury in sewage sludge solids being released Into the environment into forms available for biological uptake . . . ." This conclusion, as it relates to methylatlon of heavy metals in dredge spoils as well as sewage sludge, is unwarranted for a number of reasons. First, it assumes only a single dump of sewage sludge, rather than continuous H 160 ------- -16- dumping of sludge. While It may take 1,000 days to methylate all of the mercury In a given kilogram of sludge, under actual dump- site conditions thousand-day-old sludge will always be present and methylation will be continuous. This problem may be even more serious for dredge spoil which, because of its greater density than sludge, tends to settle to and accumulate on the bottom more readily. The "mud" dumpsite in the New York Bight, for example, contains a 30- foot high mound of polluted dredge which is doubtless being merrily methylated. Second, it assumes that methylated mercury must be "released" to become biologically available. In fact, there is no reason to doubt that many marine organisms can ingest or otherwise bioaccumulate methyl mercury directly from the solid phase. Third, mercury (and other heavy metal) methylation occurs chemically as well as biologically. Therefore, estimates of release rates based solely on microbial activity understate the release potential. And finally, there is no reason to doubt that marine organisms other than micro- organisms are able to assimilate and transform even (loosely bound) solid-phase inorganic mercury. If this is so, estimates of release or methylation rates based solely on microbial activity will again understate the toxicity potential. Beyond the above, microorganisms and the micro- and macro- invertebrates which may participate in heavy metal alkylation and assimilation are themselves part of the marine food web, providing a direct route for biomagnification of alkylated heavy metals. 17. P. 85: Describes how Sections 227.6(c) and (d) translate the Convention's (Annex I) "rapidly rendered harmless" exception into a blanket ^-hour exemption. Although the DEIS tries to make it sound 169 ------- -17- as though this represents a tightening of the regulatory scheme, In fact it is just the opposite. Nothing in the Convention or elsewhere authorizes damage within k hours following a dump to be written off or ignored. The criteria should be modified to require case-by-case evaluation in every instance, with a rapidly rendered harmless determination made dependent on detailed documentation by the dumping proponent that its dumping causes little or no short - or long-term harm. *18. Pp. 85-86; The omission of the list of materials requiring special care doea not have the effect of requiring all waste materials to be treated as requiring special care — particularly in the case of dredged material. Even for non-dredged wastes, however, bioassays do not tell the whole story, and chemical analyses are essential for toxicological screening and assessment of bioaccumulation potential (see, e.g., DEIS at 26-28). In the case of polluted dredged materials, the effect of deleting the listing of special care materials is even more serious, because it further limits the already limited utility of the elutriate test. The listing of substances in Section 227.13(c) is far, far shorter than the listing of special care materials in the existing ocean dumping criteria. We recommend that the special care listing be retained for Section 227.13(c) purposes, in the case of dredged materials. In the case of non-dredged wastes, we recommend that Section 221.1(c), dealing with application requirements and the need for an adequate chemical and physical description of the wastes, be revised to require H 170 ------- -18- the chemical description to include, at minimum, analyses for each of the special care materials (unless other evidence Is presented that some or all of these materials could not conceivably be present). *19, Pp. 87-88: Allowing the use of mathematical dispersion models to compute the zone of initial mixing (as is allowed under the proposed revised criteria), without any upper limit on the size of allowable dilution factors, poses a great potential for abuse. This is so, since dispersion models do not take account of biological accumulation and other biological and physical concentration phenomena. We recommend an upper limit of 10,000-fold on the size of Initial dilution factors. *20. P. 91 (see also, DEIS at 137): The assertion Is made that the revised elutriate test procedures "represent a considerable improvement over the previous test procedures." The DEIS does not specify what these Improvements are. In fact, little has changed. One of the changes, the use of dredge site rather than disposal site water to carry out the test, is an unfortunate change for the worse — at least where freshwater sediment Is to be dis- posed of in the marine environment. This Is so, because studies have shown that changes in salinity can stimulate the release of adsorbed pollutants. The elutriate test needs to be modified to require separate testing with both dredge site and disposal site water, where the material proposed for ocean dumping comes from a non-saline environment. In general, however, the DEIS itself acknowledges (at 65) that the elutriate test "lacks scientific elegance" and will eventually be H 171 ------- -19- discarded. Moreover, the water quality-oriented approach of the elutriate test (and of the LPC for dredged material purposes) was specifically rejected by EPA for other wastes because it "was deter- mined. . , that the present state-of-knowledge was not yet sufficiently advanced to allow the promulgation and use of marine water quality criteria or sufficent accuracy for a large enough number of materials to serve the needs of the permit program" (DEIS at 120a). The EIS should explain why alleged improvements should be regarded as improvements. It should also justify in detail any discrepancies in the treatment of dredged material relative to non- dredged wastes. 21. P. 92: The statement that Section 220.3 requires that "no Interim Permits be issued after April 23, 1978" is demonstrably false. The proposed revised regulations allow such permits to be Issued into the 1980's for industrial wastes and indefinitely for sewage sludge. The final EIS should explain why a firm 1978 cut-off date (or even a 1981 cut-off date) has not been established. 22. P. 101: The statement is made that interim permits are issued for the dumping of materials for which an ocean disposal site has not been designated on other than an interim basis. That is not what the regulations say. The statement should either be deleted or explained. *23. P. 103: Reference is again made to passive EPA "approval" of dredged material site designations made by the Corps. The final EIS should justify EPA1s failure to adopt the more aggressive site designation approach applied to non-dredged wastes and required by the MPRSA. H 172 ------- -20- »2'». Pp. 119-120: NWF's objections to the existing dredged material criteria have been misrepresented in the DEIS. We are far less concerned about allowing unpolluted dredged material to be dumped without elutriate or bioassay testing, than we are about allowing even highly polluted dredged material to be freely ocean- dumped (with, at most, some adjustments in dumping conditions and locations). We also question the adequacy of procedures for distinguish ing polluted from unpolluted dredged material, and the adequacy of efforts to minimize the dumping impacts of even truly unpolluted dredged material. Finally, we question the legality of applying less restrictive evaluation procedures to dredged material than to non-dredged wastes (we do not contend they must be identical). All of these concerns, which were first raised 2 1/2 years ago in our Petition, still remain and continue to concern us. *25. P. 121: The discussion of the alternative of treating dredged material like other ocean-dumped wastes is not adequately or fairly presented. The DEIS has taken a distorted, extreme case to consider and reject. No one has suggested that all test pro- cedures applied to some non-dredged wastes must be applied in every instance to all dredged material, polluted and unpolluted. Rather, the kind of analysis which is needed in the EIS is one which considers separately the obstacles, if any, to applying (at least to polluted dredged material) the Section 227.6(b) criteria for mercury,cadmium, organohalogens, and oil and grease; the same sort of LPC definition and requirements as apply to non-dredged wastes; similar site designation and monitoring obligations, etc. Every section or subsection of Parts 227 and 228 which does not H I" ------- -21- apply to dredged material should be discussed and reasons given for failing to apply these provisions to dredged material (polluted, unpolluted, or both). 26. P. 121: The statement Is made that dredged material "constitutes more than 80% of the total volume of material dumped in ocean waters durlnc calendar year 1975•" In fact, as is demonstrated elsewhere In the DEIS (see Table E-l, DEIS at E-2), dredged material constitutes more than 90$ of the total volume dumped in both 197^ and 1975. 27. p. 121: The statement is made that "by conservative estimates only approximately 20? of the volume of dredged material Is composed of material which requires vigorous testing," etc. This statement is not documented. Elsewhere in the DEIS the statement is made that "in 1968 about 3^ percent" of alldredged material "may have been contaminated" (DEIS, at E-ll). Unless the 20% figure can be documented, it should be discarded. The reference to "only" 20? also deserves some comment. Twenty percent of the 07-8 million tons of dredged material ocean-dumped In 1975, is still nearly twice the total quantity of all non-dredged wastes ocean-dumped during the same period. *28. Pp. 121-122 (see also, DEIS at 141, 153): NWF does not seek to have the government or the public "expend substantial resources" to analyse the pollution content of unpolluted dredged material. But the fact that as much as 80 percent of all dredged material may be susceptible to relaxed analytical testing, in no way justifies relaxing the evaluation requirements for the other ao percent. And It does not Justify the failure to do everything possible to minimize the adverse environmental effects of 'lumping even the unpolluted 80 percent. H 17L ------- -22- 29. P. 133: We disagree that establishing an Impact Criterion of "no detectable difference between the dump site and areas out- side it" would be "tantamount to placing a ban on all ocean dumping." What happened to all that dilution and dispersion the DEIS spends so much space discussing? 30. P. 135: The DEIS has failed to demonstrate how "the nature of the material and its interactions" justifies the substantial disparity in regulatory approach toward dredged material as compared with all other wastes. 31. P. 136: We disagree that the "proposed revised and improved procedures for dredged material" satisfy the need for the "same critical analyses that are prerequisite for review of permit applications for disposal of municipal and industrial wastes." 32. P. 137: How is the statement that "[t]he revised procedures for determining the environmental acceptability for disposal of dredged material in ocean waters in terms of appropriate water quality criteria provide a considerably more effective regulatory approach than the existing arbitrary classification," reconciled with the statement elsewhere in the DEIS (at 120a) that"the present state-of-knowledge [is] not yet sufficiently advanced to allow the promulgation and use of marine water quality criteria of sufficient accuracy . . ."? 33- P. 1^6: The lack of existing documentation of "long-term chemical or biochemical ecological damage due specifically to the open-water discharge of dredged material" is probably largely a function of the fact that relatively little effort has been made to H 175 ------- -23- find such impacts. This is particularly so in the marine environment. Site designation and monitoring requirements for dredged material dump sites are,therefore, particularly important. Yet Part 228 imposes far less stringent study requirements on such sites than on sites used for dumping of other wasteB. 3P. 147: The statement that land-based alternatives to ocean dumping "will result in adverse impacts" elsewhere is false and misleading. Sewage sludge, for example, can be employed to reclaim abandoned strip mines and produce a net benefit to the environment. Industrial wastes can be recycled or converted into marketable by- products, again with a net benefit. Even where an adverse impact occurs, it may well be far less on land than in the ocean. The statement is misleading and should be modified or deleted. The same comments apply to the statement at the bottom of page 147 and the top of p. 148. 35- P. 151: The statements about the termination of dumping under interim permits by 1978 and 1981 are inaccurate and misleading. They should be corrected. For further information, please contact.* Kenneth S. Kamlet Counsel National Wildlife Federation 1412 Sixteenth Street, N.W. Washington, D.C. 20036 (Phone: 202, 797-6870) H 17G ------- #30 Response to comments received from the National Wildlife Federation (NWF), Washington, D. C.» on the Draft EIS. Many of these comments deal also with the criteria themselves, as well as the content of the DEIS. The sections of the DEIS dealing with trace contaminants and with dredged material disposal have been sgnificantly redrafted based on these and other comments and on the discussions at the technical workshop, in which NWF participated. Thus, responses to many of the specific comments are not pertinent since the material commented upon has been significantly changed. Many of the comments by NWF deal with the difference in treatment of dredged material to that accorded other materials. Since dredged material is now subject to the same criteria as other materials, the comments on this subject are adequately responded to in the redrafting of the appropriate sections of the criteria and in the accompanying explanation in the Final EIS Specific Comments 1. The revised criteria represent the application of advances in the state of knowledge to the regulatory program. These advances permit the criteria to be based on direct measurements of toxic effects rather than on permitted deviations from normal ambient values. These are "significant improvements" in test procedures and they should provide a greater degree of environmental protection, but they do not represent a change in the policy and goals of the program. H 177 ------- #30 2 2. This is a misunderstanding or misinterpretation of what the DEIS said. Certainly, improvements in test procedures are always being developed, and each new generation of test procedures pro- vides better information, but merely changing some limitations based on new scientific information does not represent an alternative to the present EPA regulatory approach. For example, for use in LPC determination, an application factor of 0. rl has been chosen based on the best available information; however, an application factor of 0. 10 might have been chosen and it would not be possible to state what quantitative effect this would have on marine ecosystems. Thus, the difference between 0, 01 and 0.10 does not represent an alternative regulatory approach, but is based on the best available information on what is necessary to prevent "unreasonable degrada- tion" according to the administrative determination of what is acceptable as an overall goal. 3. Specific criteria for trace contaminants are provided. The discussion in the Final EIS covers the points raised here. 4. Dredged material is now subject to the same criteria and test procedures as other material. The discussions at the technical workshop cover the availability of solid-phase bioassay procedures. It was agreed at the workshop that bulk sediment analysis did not give meaningful results in determining environmental impacts, and it was also agreed that routine solid-phase bioassay procedures do not exist at the present time, but can be developed rapidly enough that they should be used in ^ie criteria. 178 ------- #30 3 5. Under the revised criteria, EPA will designate dredged material sites, and will apply the same criteria and survey procedures as used for other sites. 6. This comment erroneously interprets EPA's position on setting criteria for trace contaminants. This is discussed in detail in the Final EIS. 7. This comment does not exhibit a clear understanding of turbu- lent mixing phenomena in the ocean and misinterprets the discussion in the Draft EIS and the criteria themselves. Certainly, there are many factors other than initial mixing which must be considered in making a determination whether or not to issue a permit, and it is erroneous to assume that other factors are not considered. 8. No responsible scientist has presented any evidence to show that the 4-hour period is unreasonable, or that another period should be used. Certainly, there are many opinions on the matter and these comments do present one opinion. The EIS points out the basis on which this determination was made and emphasizes the judgmental aspects of it. Because of questions raised by several commenters on whether or not this period should be shorter or longer a provi- sion has been included in the criteria for using a different approach when there is reasonable scientific evidence to justify it. 4 179 ------- #30 4 9. This statement is correct even when multiple dumps are occurring. Mixing is a continuous process and begins immediately when a waste is dumped. This comment and the previous one are based on a misunderstanding of how these processes occur. 10. The material in the DEIS is regarded as explanatory and does not change the criteria. The language in the criteria and the Final EIS has been modified to clarify the scope of this section. 11. - 14. Dredged material is now subject to the same criteria as other materials. These require testing of all phases present to determine both short and long-term impacts at the disposal site and near it. The discussions at the technical workshop and the explanatory material in the Final EIS respond to these comments. 15. There is no problem in setting an acceptable limit for mercury and cadmium in the liquid phase since the water quality criteria cover this phase; however, this is only part of the overall problem and criteria for acceptable limits in the suspended particulate and solid phases have not yet been established. Thus, an overall approach similar to that used in the water quality criteria cannot be implemented at the present time. These comments distort the wording of the Draft EIS by implying that a single test procedure has been regarded as sufficient for all situations. The revised criteria set specific tests to be used on all phases of all wastes to insure that a complete appraisal is performed. H ISO ------- #30 5 When data are available to set criteria for suspended particulate and solid phases on a general basis, then the specific individual bioassays will no longer be necessary. Nevertheless, the water quality criteria and any criteria for other phases of wastes will not per se set "trace contaminant" levels within the meaning of the Con- vention and it is erroneous to so interpret such values. In a legalistic sense it would be useful to have a specific numerical defini- tion of trace contaminants, but this is not necessary to enforce the Convention, nor is it a scientifically defensible or desirable artifact, since the Convention is concerned with environmental impacts of the dumping of wastes, not with the setting of arbitrary values divorced from reality. 16. The discussion on the kinetics of mercury methylation is super- seded by the use of bioassays to measure impacts directly as part of the routine test procedures. The speculation presented in these comments and the theoretical discussion on which they are based is of little pertinence when data will be developed to measure impacts directly. EPA recognizes the somewhat general discussion presented in the DEIS lacks solid data to support the conclusions reached; however, the revised criteria will provide the actual data and permit actions will be based on these data. H 181 ------- #30 6 17. This comment is based on a complete misinterpretation of the criteria in terms of the "rapidly rendered harmless" provision of the Convention. At no place in either the Draft EIS or the criteria is this correlation made. In fact, the "rapidly rendered harmless" provision is incorporated as an exception to the overall criteria in section 227, 6. However, in the redrafting of this section the 4-hour provision has been omitted so that a case-by-case evaluation can be done to deter- mine what "rapidly rendered harmless" really implies. The Conven- tion does not set time limits in its provisions; thus, it is appropriate that these regulations should reflect the flexibility incorporated in the Convention, and that it should be left to the Contracting Parties to the Convention to establish precisely what is meant by "rapidly rendered harmles. " 18. The difficulty in including the list of "special care" materials in the criteria is that there is an implication that materials not included on this list are relatively innocuous. EPA does not sub- scribe to this viewpoint and believes that all materials dumped in the ocean require "special care". All wastes, including dredged material, are screened to determine whether or not they contain materials which might cause environmental problems, whether they are on the "special care" list or not. EPA does not believe its regulatory approach should be restricted by the incorporation into the criteria of a limited list of constituents which do not necessarily reflect the total problem in the disposal of a particular waste. 1 1S2 ------- #30 7 19. The use of mathematical models is a standard technique applied in many regulatory programs. An upper limit for dispersion could be set if such a limit were set based on scientific data. None is presented in this comment. 20. Many improvements in test procedures are being made on a continuing basis. The "elutriate" test is one test among many others, and the test procedures are specified in detail in implementation manuals. The EIS discusses and defends the overall approach and the validity of the types of tests used. It is not the place to discuss the details of test procedures and the reasons for operational changes unless these incorporate fundamental changes in technology. The criteria allow a measure of discretion to be used in test procedures to insure that the maximum likely impact is determined. This is a matter to be decided by professional analytical chemists on a case-by-case basis. 21 - 22. The EIS deals with the criteria for regulating ocean dumping, not with the administrative determination on the policy for issuing interim permits. This policy is discussed in the Preamble to the regulations. 23. Dredged spoil sites are designated by EPA using the same criteria and procedures as required for other sites. 24. EPA regrets it has misinterpreted the NWF comments. Appropriate changes have been made in the Final EIS to correct this. 25. Dredged material is now subject to the same criteria as other wastes. H 183 ------- #30 8 26. If dredged material constitutes more than 90 percent of all ocean dumped wastes, it certainly constitutes more than 80 percent of all ocean-dumped wastes. 27. The two percentage figures given are not based on the same rationale. Since these figures are purely illustrative and are gross estimates, it does not appear that extensive documentation for either figure is needed or would contribute useful information to the purposes of the EIS. 28. EPA certainly agrees that dredged material which is likely to contain significant amounts of pollutants which might adversely affect the environment should be thoroughly tested. The criteria do esta- blish such procedures. 29. Even the most innocuous inert natural materials will cause some change in local conditions. The statement is accurate, and the com- ments about dilution and dispersion are not pertinent in this regard. 30 - 33. Dredged material are subject to the same criteria as other materials, including site designation and management. 34. Any ultimate disposal method will have some adverse impact, even if it is only the energy cost of transportation. In many cases the beneficial impacts may outweigh the adverse impacts, but this must be determined on a case-by-case basis, not as broad generalities. This Chapter in the EIS is dedicated to pointing out that there will be adverse impacts, not that these impacts are more or less important than the overall impact associated with ocean dumping. H 184 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGfeNCY .subject: comments on Draft Environmental Impact Statement - DATE: Sept. 7, 1976 Proposed Revisions to Ocean Dumping Criteria from: clinton B> Spott5 Regional EIS Coordinator (6ASAF) T0: Rebecca Hanmer, Director Office of Federal Activities (A-104) Attention: Director, Oil and Special Materials Control Division (OSMCD) We have reviewed the proposed regulations and have no comments to make at this time. EPA Fom 1320-6 (Rnv. 6-72) H 185 ------- #31 Comments received from U. S. Environmental Protection Agency, Region VI, Dallas Texas. No response necessary- H 18G ------- life National Wildlife Federation 1412 16TH ST., N.W., WASHINGTON, D.C. 20036 Phone: 202-797-6800 September 10, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M Street S.W. Washington, D.C. 20460 Re: Response to August 13, 1976 Request for Clarification of Points Raised In NWF's Comments on Proposed Revisions of EPA's Ocean Dumping Regulations and Criteria Dear Mr. Wastler: We are pleased to have the opportunity to elaborate on our earlier comments. In response to the four questions you raise in your letter of August 13, we make the following responses (In the same order and using the same numbering as your ques- tions) : Question 1: Request for draft language and a supporting rationale for an acceptable definition of "trace contaminants." Response: In defense of Its failure to define "trace contaminants," EPA has contended (see, preamble to the proposed revised ocean dumping regulations and criteria, 41 Fed. Reg., at 266*15) that "defining a trace contaminant in numerical terms is •_ jlentlflcally Impossible." Whether or not the Inability to define something In "numerical terms," Is sufficient justification for not defining it in any terms at all (NWF maintains that it Is not), the revised criteria and the supporting Draft Environ- mental Impact Statement ("DEIS") both demonstrate that it Is, In fact, entirely possible to establish even a numerical defini- tion (and a scientifically-supportable one) for "trace contaminants." Thus, the proposed criteria and the DEIS together provide at least two bases for numerically defining trace contaminants. The first basis is set forth in Section 227.6(b) and is docu- mented in great detail In the DEIS, at pp. 41-54. The second basis Is described In the DEIS at pp. 40 and 78. Much of the supporting rationale for this approach can also be found at pp. 41-54 of the DEIS. (a) First Basis for Defining "Trace Contaminants." Section 227.6(b) sets forth explicit numerical limits for mercury and cadmium compounds present in both liquid and solid portions of H 187 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Two ocean-dumped wastes. These limits are based on the assumption that a 50 percent increase above natural background levels in seawater and sediment (after appropriate allowances for initial mixing) is not likely to adversely impact the environment. The same subsection also specifies procedures for establishing numerical discharge limits for organohalogens and oil and grease, for which there are no natural background levels. Although one may quibble over the proper size of the mixing zone allowance, the approach of § 227.6(b) is a basically sound, scientifically supportable approach to regulating, based upon toxicity, the ocean dumping of Annex I (i.e., §227.6[a]) substances. No scientific justification is given in the DEIS, and there really is no such justification, for not employing the numerical limits of § 227.6(b) to define "trace contaminants" — at least until limits regarded as more suitable can be established. The DEIS (at pp. 80-81) indicates than an initial constraint on setting trace contaminant limits for mercury and cadmium was the lack of documentation on the toxicity of these substances in the marine environment. As the DEIS also notes (at p. 81), however, this constraint no longer exists. (b) Second Basis for Defining "Trace Contaminants." The DEIS correctly states: A "trace contaminant" is conceptually an Impurity present in very small amounts, usually regarded as near the limits of detectability. A "trace contaminant" in a waste would, therefore, be a very small concentration of a material not regarded as a normal constituent of a waste. (At 40). There is general agreement that a "trace contaminant" is a constituent present in a waste in very small quantity, usually near the limits of detectability by standard analytical methods. (At 78). Standard methods exist for analyzing the metal content in solid and liquid wastes and information is available to EPA (as reflected in the DEIS) on the natural background levels of mercury and cadmium in unpolluted marine sediments and in open ocean water. NWF is at a loss, therefore, to understand why it is "scientifically Impossible" to define "trace contaminants" as any concentration of § 227.6(a) substances which can be detected in wastes proposed for ocean dumping (or be detected above natural background levels, in the case of mercury and cadmium) by the use of approved analytical procedures. Strictly speaking, absent other indications of intent on the part of the framers of the ocean dumping convention, "trace contaminants" must, as a matter of law, be defined in terms of its generally accepted meaning (as described above). II 188 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Three EPA's apparent disagreement that this approach provides "an adequate basis for regulatory purposes," because "the detect- ability of a constituent may have little bearing on its envir- onmental impact" (DEIS, at p. 78), has no legal standing. If the Convention calls for a definition based upon detectability, EPA has no right to opt for one based upon toxicity (and it certainly has no right to opt for none at all). In point of fact, however, legal support does exist (both in the "legislative history" of the Convention and in the approach taken under the Oslo Convention) for defining "trace contaminants" based upon toxicity considerations. NWF would not object, therefore, to a reasonable definition based either upon detectability or toxicity. In short, the obstacles to defining "trace contaminants" are not scientific. There may, perhaps, be political and economic obstacles, however. If such is the case, the DEIS should own up to this fact, and EPA should adopt the most strin- gent practicable interim definition it can, with a tight dead- line for phasing out dumping unable to meet the stricter legally-required definition. Conceptually, EPA has already taken this approach (with some large loopholes) with dumpers of non-dredged wastes (under its dual interim/special permit system). At the very least, it should require the same of dredged material dumpers. (To do so, EPA need not usurp the Corps of Engineers' permit functions; it need only specify standards which must be met within specified periods of time). In conclusion, NWF agrees with EPA (DEIS, at p. 20) that the Article IV and Annex I prohibition against ocean dumping § 227.6(a) substances as other than "trace contaminants," like other requirements of the MPRSA and the Convention, "must be turned into specific criteria by which a permit application can either be approved or rejected." In falling to define "trace contaminants," particularly as the term relates to dredged material, EPA has failed to satisfy this requirement, and has failed to honor a mandatory legal prohibition. NWF also agrees with EPA (DEIS at p. 136) that the dredged material criteria "must provide the same critical analyses that are prerequisite for review of permit applications for disposal of municipal and industrial wastes." Again, EPA has failed to satisfy this requirement, by failing to apply to dredged material, the phase-out requirement applicable to non-dredged wastes which do not meet the requirements of § 227.6(b). Please let me know if you require any further elaboration of this response. H 189 ------- National Wildlife Federation Mr. T. A. Wastier September 10, 1976 Page Pour Question 2: Request for clarification of comments regarding mercury and cadmium, (a) What is source of information for "ambient open ocean levels" and "highest typical oceanic levels," and what is specific meaning of these terms? (b5 What is quan- titative basis for liquid-phase limits recommended by NWF, and basis for assumed dilution factor? Response: (a) Our source for "ambient open ocean levels" is: Goldberg, E. D. (Convener). 1972. Baseline studies of heavy metal, halogenated hydrocarbon, and petroleum hydrocarbon pollutants in the marine environment and research recommendations. Deliberations of the International Decade of Ocean Exploration (IDOS) Baseline Conference, May 2^-26, 1972, p. 2. Our source for "highest typical oceanic levels," is: Goldberg, E. D. (Convener). 1972. Marine pollution monitoring: strategies for a national program. Deliberations of a workshop held at Santa Catalina Marine Biological Laboratory of -the University of Southern California, Allan Hancock Foundation, Oct. 25-28, 1972, p. 76. These numbers and references were previously communicated to EPA as part of NWF's March 11, 1975, comments on EPA's 2/18/75 draft criteria revisions (p. 3). By "ambient open ocean levels," we mean to signify observed levels In open ocean waters, as opposed to levels in nearshore coastal waters (which are more likely to be affected by human influence). By "highest typical oceanic levels," we mean to signify the upper end of the range regarded as "typical" of open ocean waters by Bertine, et al., in Chapter 4 of the Santa Catalina workshop deliberations (see, Table 4.3). The term "typical" is not defined. We assume what is meant is the range of concentrations most commonly reported (i.e., anomalously high or low values may have been excluded). (b) There is no precise quantitative basis for NWF's recommended maximum mercury and cadmium limits. (Our Hg recommendation, by the way, was 1.5 ug/kg, not 1.5 nig/kg, as indicated in EPA's question). Several factors entered into our consideration of appropriate limits. On the one hand, we assumed (without direct regard to dilution) that departures of one or two (but not three or four) orders of magnitude from natural seawater background levels would, In general, be unlikely to cause unacceptable adverse Impacts. On the other hand, there is much less justification for dumping even low levels of mercury, than would be the case for cadmium. I.e., industry has drastically cut back on its use of mercury and sewage sludge generally contains far lower mercury than cadmium levels; cadmium, by contrast, is still widely used in metal plating and otherwise, is present as a contaminant in zinc and phosphate ores, and is often present in high levels in sewage sludge. Accordingly, we applied a factor of about one order of magnitude above ambient levels for Hg (I.e., 15 times open H ISO ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Five ocean levels; 7.5 times highest typical oceanic levels), and of two orders of magnitude for cadmium (i.e., 70 times highest typical oceanic levels; 100 times EPA1 s mean for coastal waters), as approximately defining appropriate upper limits in ocean- dumped wastes. (In this regard, and also in regard to the previous question, it should be recalled that § 227-7^ of EPA' s interim ocean dumping criteria of Kay 16, 1973 (38 Fed. Reg. 12871, 12875) defined "trace concentrations" as those "which do not exceed by one order of magnitude the concentration of the same constituent in a sample of natural seawater...") NWF's numerical recommendations were not meant to be conclusive; but only suggestive of what might be reasonable upper limits. Question 3: Request for explanation of NWF's recommendation of a one hour "initial mixing" period. (a) Clarify scientific basis for choice of 1 vs. 4 hours. (b) Explain why 1 hour is permissible under the MPRSA and 4 hours is not. (c) Quantify the "substantial sacrifice" that could occur during the first A hours. Response: See, generally, our Comments 7-9 on the DEIS, (a) NWF has not recommended a hard and fast one-hour (or any other duration) initial mixing period. Our preference would be no blanket initial mixing period at all (i.e., no irrebutable presumption that anything that happens within four hours, or one, is automatically okay). If however, EPA feels that more specific guidance is required, we have recommended defining "Initial mixing" as "not more than one hour after dumping, unless a shorter period is called for based on the toxicity or bioaccumu- lation potential of the waste" (see, Comment 5, P- 8). NWF's recommended approach takes account of the Convention's "rapidly rendered harmless" exception, but (unlike EPA's approach) also preserves the Convention's important qualifications to this exception (i.e., provisos that the wastes do not "make edible marine organisms unpalatable" or "endanger human health or that of domestic animals"). Our approach also accords with Dr. Talley's caution that dilution phenomena do not provide adequate protec- tion for non-biodegradable, bioaccumulative materials. Instead of presuming that all dumping within a given period of time is safe (as EPA has done), NWF's approach presumes only that, if it takes more than an hour to be "rendered harmless," one may not automatically conclude that a waste has caused no damage. Even where the waste is "rendered harmless" in less than an hour, NWF's approach precludes an automatic approval of such dumping, where the waste's toxicity and/or bioaccumulation potential are such that shorter-term damage might have been caused. H 191 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Six Our use of a one-hour cutoff is perhaps as arbitrary as EPA's choice of a four-hour cutoff. It does represent, however, a plausible definition of an upper limit for the term "rapid," and (unlike EPA's approach) it accords with the policies and requirements of the MPRSA and the Convention (i.e., It does not establish unwarranted presumptions Iri favor of ocean dumping). (b) See, response to Question 3(a). An irrebutable presumption in favor of dumping following a one-hour period of initial mixing would be no more permissible under the MPRSA than such a presumption following a four-hour initial mixing period. NWF has not proposed the creation of any irrebutable presumptions in favor of ocean dumping. (c) When we suggested that ignoring waste disposal impacts during the first four hours could represent "a very substantial sacrifice" of part of the marine environment, we meant that a very toxic waste, or a persistent and/or bioaccumulative one (particularly when dumped in large amounts and at frequent Intervals) could still produce unreasonable degradation and endangerment within the meaning of the MPRSA. Also, as we noted in our Comment 8 on the DEIS, EPA's four-hour initial mixing period fails to take into account either the additional exposure (of a marine organism to an ocean-dumped waste) which occurs while the dump is going on, or the existence of dump sites which are in virtually continuous use by multiple dumpers. Thus, a dump which took 8 hours to complete (not beyond the realm of possibility) would confront organisms at the dump site with 12 hours (8 plus 4) of unregulated exposure. And at some dumpsltes (e.g., the sewage sludge dumpsite in the New York Bight), there are so many dumpers and so much material is being dumped that, as soon as one dumper completes his dumping, another begins. At any given moment organisms at the dumpsite are likely to be unprotected because very seldom will the dumpsite be free of dumping or its four- hour aftermath (i.e., it will always be In someone or other's initial mixing period). A very recent scientific paper by NOAA personnel lends support to our concern that marine organisms may be impacted by ocean-dumped wastes well within 4 hours following a dump. See, Proni, J. R., et al. 1976. Acoustic tracking of ocean- dumped sewage sludge. Science, 193 (4257): 1005-07. The NOAA study showed that, In each of the several sludge dumps monitored in the New York Bight, "point scatterers appeared rapidly (within 2 to 3 minutes) in the water column in and near the sewage sludge." It was concluded that the objects causing this scattering of acoustic signals could be "[v]ery small fish with swim bladders 0.5 mm in diameter or larger" or large "floccules of sewage." H 192 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Seven Other investigators (e.g., Dr. Jack Pearce, personal communication), have demonstrated that fish are attracted to ocean-dumped sludge (probably because of cigarette butts and other enticing objects). NL Industries (which dumps acid-iron wastes in the New York Bight) has often boasted that blueflsh are attracted to the acid waste dumpslte. In other words, while one might generally expect ocean- dumped wastes to dilute to relative harmlessness within four hours if marine organisms were distributed uniformly throughout the coastal zone, in point of fact, such organisms are often attracted to the location of a dump, and may arrive within a matter of minutes. Direct toxicity, bioaccumulation, and food chain magnification may all then merrily proceed to occur. If anything, the risk of these things occurring is a good deal greater immediately after a dump than four hours later. Question 4: Request for specific, quantitative, enforceable criteria to guard against long-term or cumulative dumping Impacts on a case-by-case basis. Response; We do not agree that NWF's recommendations (see, Comment 6, p. 11) involve only "minor changes" which would not guard against such impacts "any better" than EPA's proposed revisions. We feel it is vitally important (both to properly characterize a waste and to satisfy legal requirements) that the revised criteria explicitly require dumping applicants, as a prerequisite to dumping approval, to document (and the application reviewer to assess) the likely long-term, aggregate, and/or cumulative effects of the proposed dumping. This would require to be taken into account past, present, and likely future dumping practices at the site, the biodegradatlon and bioaccumula- tion potential of the waste[s] proposed for dumping, other pollution influences in the vicinity of the dumpslte, and possible synergisms among components of the dumper'o waste or between his wastes and other pollution sources (Including dumping). Complete quantification of a criteria requirement of this kind is probably not possible. However, methodologies do exist (based on BOD determinations), for estimating biodegradatlon rates of organic materials under aeawater conditions. See, e.g., Price, K. S., Waggy, G. T., and Conway, R. A. 1974. Brine shrimp bioassay and seawater BOD of petrochemicals. Journal of the Water Pollution Control Fed., 46 (1): 63-77- And one could probably design fairly readily a bioassay-type procedure for estimating bioaccumulation potential. For example, one might analyze a filter-feeding shellfish for heavy metals and chlorinated hydrocarbons following a 4-day exposure in the laboratory to concentrations of the waste proposed for dumping. Moreover, as the DEIS notes (at p. 28), "[t]he levels at which many compounds... cause tainting effects are known and tabulated, so that a H 1S3 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Eight determination can be made in many cases from the composition of the waste itself as to whether or not a waste is likely to cause tainting of fish or shellfish." The revised criteria should require such determinations to be made. Finally, we would note that the proposed revisions are especially deficient in failing to take adequate account of cumulative and long-term dumping impacts in the case of dredged material. Thus, the criteria applicable to dredged material do not call for even the limited consideration of long-term and cumulative impacts to which non-dredged wastes are subject. For example, § 227.9, which requires control of quantities dumped (even of inert wastes), does not apply to dredged material. Nor does § 228.12, which allows interim sites to remain in use without detailed study, "for a period not to exceed three years." Moreover, the application factor of 0.01, which is used to project chronic effects from the results of acute bioassay tests (§ 227.27[a]), is not applied to dredged material, even in the rare cases in which the criteria call for a bioassay test to be performed on dredged material at all (§ 227.13[d]). Similarly, the criteria (§ 228.8) prohibit "the total volume of material disposed of at any site" from causing the concentration of any ocean-dumped waste or waste constituent "to exceed limits specified in the site designation," only for non-dredged wastes. There is, there- fore, no provision even on an after-the-fact basis, for monitoring build-ups of dredged material. The elutriate and dredged material bioassay procedures of § 227.13(d) measure only short-term effects and have no predictive value for the long-term. They also view each barge load and dumping activity in isolation from one another. Only effects which cumulate to violate 'applicable water quality criteria" (see, §§ 227.13Cd], 227.27[a][3]) stand any chance of being considered under the proposed revised criteria. Neither the MPRSA nor the Convention permits impact evaluations to be limited in this way to effects on water quality alone. See, MPRSA, §§ 102(a)(E), and (a)(F), and Convention Annex III(A)(1), (A)(5), (A)(6), (A)(7), (B)(2), and (B)(8). The dredged material criteria are also deficient with respect to marine ecosystem effects associated with biological, physical, and chemical transfer and concentration processes (required to be considered by MPRSA § 102[a][D]). Although the "elutriate test" of § 227.13(c) considers physical transfer of contaminants from dredged material to the surrounding water, it utterly ignores direct transfers to marine organisms (e.g., filter-feeders and burrowers) and indirect transfers to marine organisms by way of chemical and biological transformations, such as result following the methylation of insoluble mercury and other heavy metals. See, e.g., Wood, J. M. 197^. Biological H 194 ------- National Wildlife Federation Mr. T. A. Wastler September 10, 1976 Page Nine cycles for toxic elements in the environment. Science, 183: 10^9-1052; letters on the met'nylation of arsenic compounds, Science, 184: 765; Jewett, K. L., Brinckman, F. E., and Be llama, J. M. 1975 • Chemical factors influencing metal alk.v- lation in water. In: T. M. Church (ed.), Marine Chemistry in the Coastal Environment (American Chemical Society, 1975), pp. 30^—318; Brinckman, F. E., and Iverson, W. P. 1975- Chemical and bacterial cycling of heavy metals In the estuarine system. In: T. M. Church (ed.), Marine Chemistry in the Coastal Envir- onment (American Chemical Society, 1975), pp. 319-3^2. Also Ignored are physical and biological concentration processes (e.g., Gulf of Mexico "loop current," and hydrophobic surface films) . I trust you will find these further comments responsive to your questions (if not, please let me know). We ask that these comments be treated along with and as an Integral part of our earlier comments on the proposed revised criteria and on the DEIS. Specifically, we request that the final impact statement consider and respond to the concerns expressed in all of these submissions, including the present one. I have taken the liberty of sending a copy of this letter directly to Ken Biglane. Sincerely Kenneth S. Kamlet Counsel cc: Kenneth Biglane H 195 ------- #32 Additional comments received from National Wildlife Federation (NWF), Washington, D. C. See response to NWF, #3. H 198 ------- NATIONAL FISHERIES INSTITUTE, INC. 1730 PENNSYLVANIA AVENUE, N.W, ¦ WASHINGTON, D.C. 70006 a (202) 785-0500 September 14, 1976 Mr. T. A, Wastler, Chief Marine Protection Branch Oil 6 Special Materials Control Division (WH-548) ENVIRONMENTAL PROTECTION AGENCY 401 M Street, S.W. Washington, D. C. 2002^ Dear Mr. Wastler: The National Fisheries Institute, on behalf of its 600 members, would like to comment on the proposed revision of regulations and criteria on Ocean Dumping {k0 CFR Parts 220 Through 229) as announced in the Federal Register on Monday, June 28, 1976. NFI commends the Agency in its continuing effort to improve the quality of U.S. waters. Overall, these proposed regulations represent substantial progress toward the Agency's goal of eliminating ocean dumping of materials which are deleterious to the aquatic environment. Foremost among the improvements is the requirement that the total environmental effect of dumped waste materials be con- sidered before permits are issued. The Part 228 provisions for selection and evaluation of disposal sites evidences an appreciation of the problems which ocean dumping has created for the fishing industry, as does section 227.21, which calls for appraisal of existing and potential uses of disposal sites. The Part 22*t change In order to forbid delayed reports by applicants for renewal of a special permit is an obvious necessity in order for the Agency to administer the Act in a coherent and uniform manner. The criteria for site selection, as expressed In Part 228 will add to our assurance that the impact of ocean dumping upon the commercial fishing industry will be held to a minimum. However, NFI believes that the Coast Guard proposal to re-orient all ocean dumping sites in order to make them coincide with L0RAN-C H 197 ------- Page Two Mr. T. A. Wastler September 14, 1976 time delay line grids, is also needed since it would promote more accurate surveillance of dumping areas. This, of course, will enable sites to be located more precisely, and therefore enable the boundaries to be marked with increased precision, thereby providing improved notice of dumping to any fishermen around dumping areas. Although the majority of the proposed regulations are complete and precise reflections of EPA's intent to promote more responsible management of ocean resources, KFI suggests that the following changes be adopted: 1) Section 220.1 (a)(3)(ii) should be changed to read "Into a zone contiguous to the territorial sea of the United States, extending to a line 200 miles seaward from the base line from which the breadth of the territorial sea is measured, to the extent that it may affect the territorial sea or the ter- ritory of the United States. This section will become effective March 1, 1977 On this date the Fishery Conservation and Management Act of 1976 (PL 9*f-2$5) becomes effective, extending the U.S. territorial jurisdiction for fisheries management purposes to 200 miles. The main purpose of this Act is to conserve and manage fishery resources in the Continental Shelf area. It seems consis- tent with the purpose of this law that regulations be imposed not only upon fishing vessels in this area, but also upon all parties engaging in ocean dumping within it since ocean dumping does affect fishery management within the 200 mile U.S. territorial jurisdiction. The Coast Guard should be able to inspect that same area for ocean dumping violations with a minimum of additional effort. 2) Section 220-3 (d) should be changed to read as follows; "Interim permits. Prior to April 23. 1978, interim permits may be issued under certain conditions, such as (herein supply specific examples), in accordance with etc." This change is necessary since "certain conditions in accordance with Subpart A of Part 227" without examples of such conditions leaves all parties concerned with regulations which are far too broad-ranged in possible interpretations. 3) Part 220.3 (d)(2). Change phase out date for dumping from "April 23, 1981" to "April 23, 1979." k) Part 227-5 should be amended by deleting "High-level" from 227.5 (a). Part 227.30 should be amended by removing "High-level" from the section title and the first sentence. Both of these changes, having the effect of banning all radioactive wastes from ocean dumping activities, are needed in order to protect marine fisheries and the marine environment from the risk of harmful radioactive contamination. Although radioactive waste - other than "High-level" waste is allowed within the parameters of the Act and pursuant regulations, those parties concerned H 190 ------- Page Three Mr. T. A. Vastier September 1^, 1976 with protection of the environment have no scientifically supportive evidence that even a "low" level of radioactive contamination will not someday prove irreversibly detrimental to the marine ecology. 5) The list of constituents prohibited as other than trace contaminants, set forth in Part 227-6 (a) should be amended as follows: A. "Organohalogen compounds, and other pesticides as any detrimental affects become known; B. Mercury snd mercury compounds; C. Cadmium and cadmium compounds, and other heavy metals as any detrimental effects become known; • D. Etc." The additional working "and other heavy metals as any detrimental effects become known" should be included in the proposed regulations in order to give the administrator a convenient vehicle for taking broad and immediate action to prevent any heavy metal contamination of the marine environment in the event that scientific evidence as to such detrimental effects is discovered. 6) Part 227.6 (b) should be amended to read as follows: A. "Mercury and its compounds are present in any solid phase of a material in concentrations less than 0.53 mg/kg, and the total concentrate of mercury in the liquid phase of a material is less than 1.0 mg/kg; B. Cadmium and its compounds are present in any solid phase of a material in concentrations less than 0.M mg/kg, and the total concentration of cadmium in the liquid phase of a metal is less than 2.0 mg/kg." The proposed regu- lations, prohibiting dumping of mercury and cadmium unless below certain concentrations may still subject the ocean environment to exposure to hazardous wastes at levels above those acceptable to the fishing industry, Bioaccumulative properties in many commercially valuable fish and shellfish indicate that a reduction of these levels by one-third may provide an acceptable safety level for these species for the duration of ocean dumping programs. 7) Part 227.6 (b)(*») should be rewritten to require specific scientific testing in order to quantify the maximum permissible levels of oils and greases In ocean waters, as referenced in paragraph (a)(k). The "surface sheen" test is unscientific, and inadequate. 8) Part 227.6 (d) should be amended to read as follows: "The prohibitions and limitations of this section do not apply to the constituents identified In paragraph (a) of this section when the applicant can demonstrate to the EPA Administrator or Regional Administrator that such constituents are present in the material only as chemical compounds or forms (e.g. Inert insoluble solid materials) non-toxic to marine life and non-bioaccumulative in the marine environment." H 193 ------- Page Four Mr. T. A. Wastler September 14, 1976 9) Part 227.6 (e) should be amended by adding after the last word: "Any determinations of such effects upon marine organisms will be made by the Administrator, or Regional Administrator after consultation with NOAA." This amendatory language Is necessary In order to Insure that the responsibility of determining whether toxic substances will be "rendered harmless in the sea," or will make edible marine organisms dangerous or unpalatable be placed upon government agencies best -equipped to make such determinations. 10) Delete "reasonable" from part 227.13 (t>) (3) (II i). More than "reasonable assurance that the material proposed for dumping will not be moved by currents or otherwise In the manner that is damaging to the environment outside the disposal site" Is demanded by good management practices, and by the intent of the Act. "Reasonable" connotes an unaccepted "balancing" of priorities and alternatives, In this case. 11) Part 227.13 (c) should be amended to read as follows: "...Considerations wl11 also be given to the possible presence In the sediments of the specific con- stituents identified in section 227-6 (a) ...Particular attention will be given to the possible presence of major constituents that could cause an unacceptable oxygen demand or adverse chemical-biological interactive effects and known characteristics of the extraction and disposal sites." 12) Part 227.13 (d) should be amended to read as follows: "If such elutriate concentrations are found to exceed limiting permissible concentrations, the District Engineer shal1 , after considering comment from the Regional Administra- tor, specify bio-assays when such procedures will be of value in establishing dumping conditions or In determining if the dredged material is environmentally acceptable for ocean dumping." Strike everything which follows the comma immediately preceding (2), and replacing that comma with a period. Strike the designation "(I)" from section (d). This deletes the provision allowing certain toxic substances to be dumped as long as they "will be rendered non-toxic to marine life and non-bloaccumulative in the marine environment — within four hours after disposal." 13) Delete "or District Engineer" from Part 227.16 (a), since the District Engineer does not have the expertise nor is it within his jurisdiction to have full knowledge of all that is Included in sub-sections (1) and (2) which follow. Under no circumstances should a District Engineer be required to determine that a need for ocean dumping exists due to impracticability of improving water process treatment technology, or that no alternative locations having less environmental impact exist. H 200 ------- Page Five Mr. T. A. Wastler September 14, 1976 14) Part 227-17 should be amended to read as follows: A. The impact of dumping on esthetic and recreational values will be evaluated on an individual basis using the following considerations: (1) Potential for affecting recreational use and values of ocean waters, in-shore waters, beaches, or shorelines; (2) Potential for affecting the recreational values of living marine resources. B. For all proposed dumping, full consideration will be given to such non-esthetic recreational impact as: (1) Responsible public conern for the consequences of the proposed dumping; (2) Consequences of not authorizing the dumping including without limitation, the impact on esthetic, recreational and economic values with respect to the municipalities and industries involved. 15) Part 227.19 should be amended to read as follows: "An overall assessment of the proposed dumping will be made based on esthetic and recreational values based on the factors set forth in this Subpart D, including, where applicable, enhancement of these values, and the results of an Economic Impact Statement, such statement containing primary emphasis on the effects which such dumping would have upon the commercial fishing industry and its supporting industries. Results of esthetic and recreational assessment will be expressed on a quanti- tative basis, such as percentage of a resource lost, and or, reduction in user days of recreational areas." 16) Part 227.20 (b) should be amended to read as follows: "An evaluation will be made by EPA, after consultation with NOAA, on an individual basis for each proposed dumping of material of the potential for effects on uses of the ocean for purposes other than material disposal." etc. 17) Part 227.21 should be amended to read as follows: "An appraisalwi11 be made of the nature and extent of existing and potential uses of the disposal site itself and of any areas which might reasonably be expected to be affected by the proposed dumping, and a quantitative and qualitative evaluation made, where feasible, after consultation with NOAA, of the impact of the purposed dumping on each use." etc. 18) Strike "where possible," from Part 228.4 (e)(6)(i). Times of dumping should always be chosen to avoid interference with the seasonal reproductive and migratory cycles of aquatic life in the disposal area. 19) Replace "may" with the word "will" in Part 228.13 (h). The EPA must require that water and sediment samples "be submitted on a routine basis to EPA laboratories for analysis, as well as being analyzed by the surveyor, and that EPA personnel participate in some field surveys." H 201 ------- Page Six Mr. T. A. Wastler September H, 1976 For further information please contact: Roy E. Martin, Director of Science and Technology at the above address. H 202 ------- #33 Response to comments received from the National Fisheries Institute, Washington, D. C. 1. Section 220.1(a) (3) (ii) - The Act limits jurisdiction to 12 miles except for U, S. vessels and vessels loading wastes in U. S ports, A statutory change would be required to do what is suggested here, 2. 220, 3 (d) - The specific conditions under which interim permits may be granted are given in Subpart A and Subpart F. There is no need to repeat them here. 3. 220. 3 (d) (2) - This comment is adequately addressed in the preamble. 4. 227. 5 and 227. 30 - The prohibition on "high-level" radioactive wastes is in the Act. There is no indie ation in the Act or in the legislative history that it was intended this prohibition should be extended to all radioactive wastes. 5. 227. 6 (a) - This is far too ambiguous to have value for regulatory purposes. Any substance can be shown to have detrimental effects under certain specific conditions. 6. 227. 6 (b) - The concerns expressed in this comment are addressed in Section 227. 6 as redrafted. The bioassay procedures should provide adequate safeguards. 7. 227. 6(b) (4) - Refer to response to commenter #28, Passaic Valley Sewerage Commissioners. 227. 6 (d) - It is necessary in all cases that such a determination be made by EPA, not by the applicant. u or n rf t,l>d ------- #33 2 9. 227. 6 (e) - EPA would probably consult with a large number of outside scientists to insure that the evidence presented by any appli- cant is reasonable. We do not believe that we should restrict our consultation mechanism in this case only to NOAA. 10. 227.13 (b) (3) (iii) - While the redrafted Section 227.13 removes the offending language, it is worth pointing out that absolute assurance of anything adverse not happening is impossible in an environmental situ- ation such as exists in the ocean. There are too many variables, too many things that are unknown and site specific. Therefore, we believe thai the use of reasonable assurance is a valid approach as taken in this regulation and in other parts of the criteria. 11. 227.13 (c) - The dredged material criteria require that the conditions of 227. 6 be met by dredged material disposals, and that the major constit- uents for which analyses must be made be left to the discretion of the District Engineer, Thus, in particular cases he could require such tests that are necessary if he believes that there would be an unacceptable oxygen demand or adverse chemical biological interactive effects. 12. 227.13(d) - The provision relating to certain materials being dumped as long as they will be rendered non-toxic to marine life and non-bioaccum- ulative in the marine environment is included in Annex I of the International Convention. Regarding to the rest of the comment, dredged materials are now required to be in full compliance with both the trace contaminant and limiting permissible concentration requirements. H 204 ------- #33 3 227,16 (a) - The Ocean Dumping Act sets up a separate permit program for dredged material under Section 103. Th-? District Engineer is required to apply the same criteria in implementing this program as the EPA Regional Administrator is in implementing the Section 102 program. The District Engineer is under the same constraints as the Regional Administrator in determining an existing need for ocean dumping. This includes the practicality of improving a water process treatment, technology, or there are no alternative locations which have less environ- mental impact. Just because a material to be disposed of happens to be dredged material does not change the basic criteria on which the program operates. 14. Part 227. 17 - This Section incorporates these considerations, but the scope of the Section also includes economic values, 15. 227.19 - We do not believe that it is necessary to do an economic impact statement on each and every permit action. An environmental impact statement will be made on all ocean disposal sites, and should be quite adequate when combined with the requirements on individual permit applications, when the determination is made in accordance with the provisions of Section 227.17 thru 19. 16. 227. 20 and 227. 21 - EPA does not wish to limit its ability to conmilt with the total scientific community by adding a statement in the regulation to imply that consultation will be only with NOAA. H 2C5 ------- #33 4 In some cases consultation with NOAA could be extremely valuable and other cases there will be no need to consult with them if the infor- mation required is not pertinent to their activities. 17. Same response as immediately preceding. 18. 228. 4 (e) (6) (i) - In some cases the information may not exist to do this. 19. 228.13 (h) - We do not believe it should be mandatory that sediment samples in all cases be submitted on a routine basis to EPA. Certainly for some wastes a large number of samples will be submitted, for others just a few, and in some cases none. We believe the discretionary authority to make a case-by-case determination is necessary in this situation. HO p u 'J M ------- September 15, 1976 011 and Special Materials Control Division Office of Water Program Operations U.S. Environmental Protection Agency Washington, D.C. 20460 Re: Proposed Revisions to the Ocean Dumping Criteria Draft Environmental Impact Statement Dear Sirs: Thank you for sifomitting your draft impact statement for review. I appreciate the opportunity to comment on the content and presentation of your material. In response to your request, I have consulted with several sections of our agency to discuss aspects of your document that involved their respective areas of expertise. The following points reflect this collective input: (1) We cannot concur with statements, etc., within your draft document which indicate that implementation of the revised criteria will have no adverse environmental impact. Ocean dumping restrictions will increasingly impact the land disposal of wastes. This will lead to concentration of wastes at specific locations where critical environ- mental impact may be felt for years to come. Therefore, land disposal should be analyzed to the same degree of detail as marine disposal. Until this is accomplished, the environmental and economic trade-offs between the dilution, dispersion, and biochemical degradation of ocean disposal versus "controlled" land dis- posal cannot be compared. The lack of equally stringent land disposal criteria and controls makes this analysis critical. For too long, water environment has been reviewed without due regard to land management, and consequently the total environment. Although the draft statement briefly indicates the considera- tion of land disposal consequences, discussion of the above issues should be strengthed in the final statement. (2) The document presents excellent discussion concerning the technicalities, materials, and requirements of ocean dumping. Stak H)1 Wftshingion Dmartmeni ofiix>k)gy ------- Letter to U.S. Environmental Protection Agency September 15, 1976 Page two However, the statement, "The oceans have a natural capacity to ameliorate impacts of ocean dumping and other stresses," (Chapter VII, page 158) is incorrect if these waters include the strait areas and the Sound of the Pacific Northwest. Pollution of this inland sea is not easily ameliorated. Clarification in the final document might eliminate need- less delays in project development. (3) States' authority to control water pollution caused by ocean dumping should be addressed. This would help avoid confusion on the overlap of state versus federal responsibilities. (4) It is taken as a good sign that this latest revision to the criteria may not be the last. Revision of the criteria should continue as additional experience is obtained. (5) Since control of reusable and recyclable resources is a factor in a]X solid waste disposal, the final document could strengthen its assurance that these resources will not be wasted. (6) The impacts of these proposed criteria appear to further protecting and safeguarding the ocean environment. The proposed revisions to the criteria (alternate 4) seem more acceptable than the existing criteria. If you have questions on the above statements or need further information, be sure to call me. My telephone number is 753-6890. I will assist you personally or refer you to the appropriate individual who submitted a specific comment relative to his area of expertise. I have welcomed the opportunity to submit commentary on your proposed action. I hope it is helpful in completing your final statement. Sincerely, Environmental Review CIS:bjw cc: Avery Wells E.O. Standish Harry Tracy Rod Hack Ed Denike Pete Haskin ------- #34 Response to comments by the State of Washington Department of Ecology, Olympia, Washington. 1, We do not believe the DEIS stated categorically that implementation of the revised criteria would have no adverse environmental impact. Certainly there will be an impact wherever a waste is placed, whether in the ocean, on the land or in the air, and this impact will nearly always be adverse. The potential for such impacts is discussed in Chapter VII of the EIS. We agree with the comment that the impacts of land disposal should be considered to the same degree of detail as marine disposal in an overall waste management program. This document, however, deals with ocean dumping criteria, not with land disposal criteria; consequently, the emphasis is on marine environmental impacts rather than with land disposal impacts. Since comparable criteria and analyses regarding land disposal do not presently exist, it would be extremely difficult to make the type of in-depth analysis recom- mended at the present time. 2. These criteria deal only with open ocean disposal, not with enclosed areas such as estuaries, bays, and sounds. This is stated explicitly in both the Act and the title of the regulations. H 209 ------- #34 2 3. These criteria and regulations deal with the implementation of the Federal program authorized by the Ocean Dumping Act. There are 23 coastal states which could have regulatory programs affecting dumping in their territorial ocean waters aq authorized by State or local statute. These programs, according to Section 106(d) of the Act, are superseded by the Federal program, although States may propose alternate criteria to EPA. Thus, it would appear pointless to discuss the historical State programs. 4. Future revisions to the criteria may be made as the state of knowledge advances. 5. The criteria deal only with the question of ocean dumping, not with the overall problem of solid waste disposal. 6. It is intented that the criteria should implement the goal of preventing unreasonable degradation of the marine environment. ------- MOSS LANDING MARINE LABORATORIES OFFICE OF THE DIRECTOR P. O. BOX 22} MOSS LANDING, CA. 95059 (408) 6JS-J304 September 16, 1976 Director Oil and Special Materials Control Division Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Sir: At the request of Kenneth Kamiet, Counsel for the National Wildlife Feder- ation, I have read EPA's draft of the "Proposed Revisions to Ocean Dumping Criteria". EPA should be congratulated for preparing a sound document based on a great deal of complex information. It is also apparent that the National Wildlife Federation has spent a great deal of time reviewing this document. They have offered many valuable suggestions for the improvement of the current draft. I urge EPA to carefully weigh their arguments and to Include their suggestions wherever possible. Sincerely, /Ka— John H. Martin Di rector cc: Kenneth Kamiet JHM/k CALIFORNIA STATE UNIVERSITY AND COLLEGES AT FR.=SNO. HAWAKD, SACRAMENTO, SAN FRANCISCO, SAN JOSI, STANISLAUS M 911 ------- #35 Response to comment by the Moss Landing Marine Laboratories, Moss Landing, California The response offered to comments from the National Wildlife Federation (#3), are also appropriate to these comments. U Olo ------- FRIENDS OF THE EARTH 620 C Street, S.E., Washington, D. C. 20003 (202) 543-4313 David Brower, President September 21, 1976 Mr. T.A. Wastier Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M Sts. SW Washington,D,C. 20460 Dear Mr. Wastier: Re: Comments on Proposed Revised Ocean Dumping Regulations and Criteria Friends of the Earth wishes to transmit to you our profound and complete agreement with the comments submitted to you on this subject by the National Wildlife Federation. The Federation has said precisely what needed to be said. It cannot be improved upon. Thank you. — — — y ) j Uamjl — Sincerely, Anne Wickham Assistant Wildlife/Conservation Director Committed to the preservation, restoration, and rational use of the rcosphere ------- #36 Response to comments by the Friends of the Earth, Washington, D. C. The response offered to comments from the National Wildlife Federation (#3), are also appropriate to these comments. H 214 ------- COTABUSMKB tftO« E. i. du Pont de Nemours & Company )NC0***QBATK-0 Wilmington, Delaware 19898 legal department September 21, 1976 Mr. T. A. Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division (WH-548) U.S. Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: Attached are Du Pont's comments on the Proposed Revision of Regulations and Criteria to the ocean dumping regulations published in 41 Federal Register 26645-26667 (June 28, 1976). In addition to the attached, we wish to make the following general comments: (1) The establishment of a specific cutoff date (April 23, 1978) for issuance of interim permits is too arbitrary. Beyond the control of an applicant or EPA, a request for adjudicatory hearing or appeal to the Administrator could force the issuance date beyond April 23, 1978, automatically foreclosing issuance. We suggest that applicants holding interim permits and wishing issuance of new interim permits after April 23, 1978 be given the opportunity to demonstrate their needs to the EPA. After all, the distinction between special and interim permits has been arbi- trarily determined. Examples of such are the numerical limits set for mercury and cadmium (consider the 40,000,000 metric tons of mercury naturally present in the oceans and perhaps three times that amount of cadmium) and the equally arbitrary defi- nitions of mixing zones and the selection of the 0.01 factor for determining the limiting permissible concentration. H oir ------- Mr. T. A. Wastler Page Two September , 1976 (2) Long time periods are built into these proposed regulations for public hearings, adjudicatory hearings and appeals. EPA should make sure the regulations spell out that throughout these proceedings existing permits may be extended until final deter- minations. The changeover from existing regulations to the new proposed regulations results in the institution of new, very lengthy procedures. A permittee seeking renewal or reissuance could find himself completely tied up in proceedings which extend beyond the expiration date of an existing permit. Thus, we urge that permits be extendable during any such proceedings. An appropriate place to enunciate such a general power to extend a permit by the Administrator or Regional Administrator is in Section 222.10. Certainly the April 23, 1978 cutoff date for issuance of interim permits should be extendable if adjudication and appeals of an interim permit extend beyond that date. (3) Du Pont has proposed to EPA's Regions II and III a more scientifically sound method of achieving discharge time of wastewater from a moving vessel. It involves relating bio- assay data at varying time intervals to dispersing wastewater concentrations rather than the more rigid concepts outlined in the existing or proposed 40 CFR 227.27-227.29. We believe the revised regulations should permit an applicant for a permit to demon- strate the viability of such an approach. We request, therefore, the opportunity to explain our ideas in greater detail to you and anyone else in EPA you may designate. Sincerely, Carl B. Everett Lloyd L. Falk H 216 ------- SPECIFIC COMMENTS ON PROPOSED REVISION OF OCEAN DISPOSAL REGULATION AND CRITERIA (41 FR 26645-26667, June 28, 1976) Page Section 26649 220.3(B) 220.3(d) Remarks The renewal provision of the existing regula- tion 220.3(b) has been deleted and should be reinstated. Delete the cutoff date of April 23, 1978 for issuance of interim permits. Beyond the control of an applicant or EPA, requests for adjudicatory hearing or appeal to the Administrator could force the issuance date beyond April 23, 1978, automatically fore- closing issuance. Perhaps this problem can be avoided through the inclusion of an additional subparagraph describing situations in which the April 23, 1978 date does not apply. The exclusionary paragraphs number (1) and (2) have different provisions for ending dumping or meeting criteria for publicly- owned sources versus existing nonpublic sources. These two paragraphs have different pro- visions for ending dumping or meeting cri- teria for publicly-owned sources vs exist- ing nonpublic sources. The former can prolong dumping without meeting criteria past April 23, 1981 if funding is not available. The latter cannot. Nowhere does PL 92-532 contain any pro- vision authorizing EPA to treat publicly- owned sources of wastes differently from nonpublic sources. Congress clearly made the distinction in PL 92-500 in regard to effluent limitations in Section 301 and elsewhere. If Congress had intended that a difference be made in regulations required under PL 92-532, it would have so indicated. Since the purpose of PL 92-532 is to pro- tect the oceanic environment, how can EPA, in all honesty, distinguish between sources of prohibited waste constituents, the need to meet limiting permissible concentrations, etc., merely on the basis of ownership of the sources of the waste? H 217 ------- Remarks Paragraph (d)(2) also suffers by limiting "the action to construction of a "treatment facility." Installation of in-process or new innovative technology should also be provided for. The first sentence of the last paragraph of Section 220.3(d) should be modified to allow expansions and/or modifications of facilities which have previously dumped, provided the amount of waste is not increased over previous permits. Modifi- cations, for example, could lead to reduced dumping, yet this paragraph would not allow new interim permits. The second sentence of the last paragraph of Section 220.3(d) should be deleted. No renewal of interim permits is provided for, only issuance of new permits. Issuance is a discretionary power of EPA and any viola- tions of previously issued permits should be enforced under terms of that permit. Further, EPA has provided no criteria by which it will judge whether an applicant has "exercised his best effort" to comply with previous permit provisions. Thus the appli- cant will not know ahead of time what "effort" will be considered by EPA to be his "best." Substitute "in writing" for "by letter" in the first paragraph. A "full evaluation" is so broad as to be almost undefinable. We suggest the word "full" be deleted. After all, EPA has the ability to request additional information in Section 221.2, and Subpart C of Part 227 lists the factors to be considered in determining the need for ocean dumping. These provisions of 221.3 and 221.4 put an unjustly severe penalty on transporters who may not have been the applicants. The responsibility of the applicant should be greater than the transporter if they are not the same persons. Further, the appli- cant should not be held liable for action of a transporter who simultaneously trans- ports additional wastes of other dumpers. H 218 ------- - 3 - Section Remarks 221.4 26651 222.2(a) 222.3(d) 26652 222.9 222.10 "Fully described" is too broad a term. The words "adequately described" or merely '"described" would be an improvement. This provides the Administrator (or Regional Administrator) more discretion in what he can accept. No provision is made in Section 222.2 for the case where the request for additional information did not issue to the applicant within 30 days of receipt of the application. This Section should be modified to provide that, if no request for additional information is issued within 30 days, the application shall be considered complete. Any time required to fulfill the request for addi- tional information made pursuant to Section 221.2 subsequent to the 30-day period speci- fied in this paragraph 222.2(a) shall not delay the final action period of ISO days specified in Section 222.1. Alternatively, provision should be made for the extension of a valid permit during con- sideration of a subsequent application. Public Law 92-532 merely requires periodic review of permits and does not contain a duration limit. The 500 miles established for sending notices to coastal states seems an inordi- nately large distance. For example, the State of Georgia, which has no Gulf of Mexico coast would be required to receive notice for a disposal operation near the mouth of the Mississippi River. The State of New Hampshire would have to be notified of operations off the coast of Delaware. We recommend that the distance be reduced to 250 miles at the most, and possibly less. Because of the possibility of considerable time delays associated with appeals to adjudicatory hearing and appeals to the Administrator, some mechanism should be established to enable permit holders to continue ocean disposal while applications for new permits are pending. The extension provision in Section 222.10(c) is unduly limited. We suggest a provision which allows permit extensions in situations ------- - 4 - r^e Section Remarks 26653 222.11(b) 222.11(e)(1)(i) 222.11(e)(9) where the benefits to the permittee from continued barging outweigh any imminent and substantial danger associated with the barging. In many cases the documents associated with a permit application are voluminous due to the inclusion of scientific reports as well as documents associated with prior permit applications and hearings. Rather than serving all documents and papers filed with the Presiding Officer, it is suggested that these materials be made available to parties through the EPA Regional Office. We object to having the burden of proof placed on the applicant in the case of an adjudicatory hearing held pursuant to Section 222.10 unless the applicant requests the hearing. It should rest on the person requesting the hearing pursuant to Section 222.10(a), or the EPA in the case of a hearing called pursuant to 222.10(b)(2). We are puzzled by the provision in Section 222.10(b)(2) for adjudicatory hearings upon the discretion of the Administrator or Regional Administrator. Why would an Agency wish to appeal its own decision? Evidence admissible in court should be admissible in adjudicatory hearings. This Section should be revised to say that the Presiding Office may, in his discretion, permit the introduction of evidence which would not be admissible in court under the rules of evidence. The proposed rules do not limit the scope of review for adjudicatory hearings. Since adjudicatory hearings are being used for the purpose of appealing decisions by the Admin- istrator or the Regional Administrator, the scope of this review should be limited to the record before the Presiding Officer if a hearing has been held or the Administrator or Regional Administrator if no hearing was requested. The record may thus include materials associated with permit applica- tions by the applicant as well as informa- tion submitted in connection with the pending application. Newly discovered evidence u 9 9n ------- - 5 - Section Remarks 222.12(c) should be used as the basis for reopening permit consideration rather than as substan- tive evidence at an adjudicatory hearing. Replace the words "shall be stayed" with the words "may be stayed." The Administrator should have some discretion here. 26.654 223.2(c) 224.1 26657 227.2(a)(1) As discussed above in connection with Sections 222.2(a) and 222.9, the Adminis- trator should be authorized to extend the duration of a currently valid permit until a final determination has been made pursuant to 222.12(e) or (f). Section 223.2(c) is not clear on whether the modification, revocation, or suspension of a permit can become effective prior to the outcome of the adjudicatory hearing and an appeal to the Administrator. The modifi- cations, etc., should be stayed pending that outcome. The permit to be modified, revoked, or suspended should remain in effect unless the Administrator determines an immediate unavoidable danger to human life or health exists. Current permit refers to "applicant" and "waste transporter(s) ". If both parties are "permittee(s)" under this Section, we feel it is unnecessary for both to keep the complete records required. It would seem proper that the "applicant" be respon- sible for records required under 224.1(a) and the "waste transporter(s)" be respon- sible for records referred to in 224.1(b). Subpart C goes beyond an inquiry of whether alternative means of disposal are available to involve an inquiry into the relative environmental impact of the alternatives. Thus, this Section should be revised to say "Alternative means of disposal which have less environmental impact than ocean dumping are practicable." 227.6(a)(5) We understand the concern of EPA about releasing carcinogens to aquatic media. However, the principal problems identified to date are potential discharge of such materials into waters used for water supply. Oceans are not so used except i.i o a -l ------- - 6 - ¦ jge Section 227.6(c) 227.7(a) 227.7(d) Remarks in rare instances following desalination. Thus, such substances, at least relative to man, might be more safely disposed of at sea rather than on land. We believe that this prohibition on known or suspected carcinogens should be deleted until the possibility that carcinogenic effects cculd indeed occur after discharge to the ocean has been established. Should EPA insist on regulatory "known or suspected carcinogens", we recommend a more specific definition. Further, we believe that carcinogenic effects of the dumped waste in its entirety should be of concern rather than carcinogenic effects of a small component of the waste, particularly when EPA cannot define "trace quantities". This paragraph should be deleted or modi- fied to specify the kinds of marine organisms the EPA has reason to suspect would show carcinogenic, mutagenic or teratogenic effects because of the waste. The Adminis- trator (or Regional Administrator) should be required to present the evidence leading to the suspicion that human health or the marine ecosystem would be affected. This paragraph might make it impossible to discharge such materials as metal salts which upon hydrolysis form slightly soluble materials which would not be below the solubility limits in sea water. We recommend that this prohibition not apply to products resulting from chemical or physical reaction with sea water. The terms "total alkalinity" and "total acidity" are not defined. If these are based on methyl orange or phenolphthalein endpoints respectively, there may be con- siderable difficulty in meeting the 10% limitation, particularly in regard to acidity, since sea water is naturally almost at the latter endpoint. We recom- mend that this Section end with the words "to neutralize acid or alkaline wastes." if 222 ------- - 7 - ¦/^s)ge Section 26658 227.12(b) 26659 227.15(c) 227.16(b) 227.18(g) 227.18(h) 227.20(a) 26660 227.25(b) Remarks The significance of this paragraph to such wastes as Ti02 waste is not clear. Clarification is required to ascertain whether the paragraph is even applicable to wastes containing hydrolyzable salts. The environmental risks of the alternatives should be considered in addition to the actual impacts and costs. Indefinite "storage" of wastes may represent a greater environmental risk than ocean disposal, and similar problems are associated with the other alternatives listed. Delete "taking into account the environmental benefits derived from such activity" and substitute "and when their overall environ- mental impact is less than that of ocean dumping." Bioaccumulation is a natural phenomenon without which marine organisms cannot live. Thus, the mere presence of materials which can bioaccumulate is not a cause for adverse assessment of impact. The potential degree of bioaccumulation should also be taken into account. Both 227.18(h) and 227.19 should be modified so that similar assessments of effects_on aesthetic, recreational, commercial and economic values are made for the alternatives to ocean disposal. Similarly, consideration should also be given to the long-range effects of alternatives. Section 227.20(a) also does not indicate how long is "long-range" nor what constitutes "continuing." There needs to be some limitation set on the time as well as geographical limitations to be considered. Situations occur in which the water used in producing the waste is taken, wi±3a treatment, from an estuary or river of poor water quality. That estuary already flows to the ocean. To preclude allowing that water to be transported to the ocean in a barge seems unreasonable when it is W 223 ------- - 8 - ^tge Section 227.27(a)(1) 227.27(b) 227.29(a) Remarks already going there. Incidentally, water from municipal sources meeting water quality stan- dards would be toxic to ocean biota. Drinking water standards should not be a factor in considering ocean dumping. The EPA should allow use of an application factor greater than 0.01 if the applicant for a permit can demonstrate, to the satis- faction of EPA, that such factor allows an adequate margin of safety. Similarly, if EPA demonstrates it should be less than 0.01, such lower value should be used. We recommend adding the words "or such other species as the Administrator or the Regional Administrator determines appro- priate test organisms for the type of waste involved" *vt the end of the first sentence. The use of phytoplankton may be inappropriate for certain metal- containing wastes since the cultured conditions for phytoplankton may require inclusion of such metals as are in the wastes to optimize the growth conditions for phytoplankton in the control. The requirement of bioassays being run "for a minimum of 96 hours" under the conditions "representing the extremes of environmental stress at the disposal site" appears to be unduly restrictive. Furthermore, it may not be possible to simulate in the laboratory the extremes of environmental stress. It is suggested that the sentence be deleted and allow the EPA-approved procedures re- quired in Section 227.27(a)(1) be sufficient to cover the conditions of the bioassay. Since the limiting permissible concentration is 0.01 of a toxic concentration observed in a bioassay of probably several days duration, it is unreasonably restrictive to limit mixing zones to regions achieved within four hours after discharge. Either the mixing zone should be increased to a time period comparable to the bioassay test, or the d .ration of the bioassay test should be more closely related, in time, to mixing zone time periods. o 9.9L ------- - 9 - ^ge Section 26663 228.10(c)(1)(i) 228.10(c)(1)(ii) 228.11 26665 228.13(d)(2) Remarks Du Pont has proposed to Regions II and III that a time-concentration concept be used to determine the duration of release of material from a vessel. This concept relates the bioassay duration to the dispersed concentration of waste in the wake of the vessel. These regulations should be modified to allow such a method for determining release time. The use of the criterion, "detectable concentrations above normal ambient values," does not consider the environ- mental significance of the particular material involved. Ecological or environ- mental significance, not mere analytical detectability above ambient, needs to be considered in establishing the impact category. Further, no mention is made that concentrations above normal should be statistically significant. Some provision is required to specify when and where the"statistically significant decreases are to be evaluated. It does not seem appropriate to measure those de- creases in the immediate wake of a vessel dispersing waste. This measurement should be made after the wastes have had an oppor- tunity to disperse and the populations of valuable species or those they depend upon for proliferation, have had an oppor- tunity to begin returning to normality. For example, decrease in phytoplankton populations in a narrow strip equal to the width of the barge wake is probably too small an area to significantly adversely affect the populations of commercially or recreationally valuable species. A provision is needed in Section 228.11 to allow those affected to adjudicate and appeal the decision to modify use of a site. A provision is needed to allow a reduction in the number of water chemistry stations within a disposal site when existing knowledge or results of one of the earlier baseline surveys indicate the water column is laterally relatively uniform. ------- - 10 - Section Remarks 228.13(e)(1)(ii) The requirement of bottom station density at least three times the water quality station density should also be subject to modification depending upon existing knowledge or information. 228.13(e)(2) The requirement to develop sites "at the greatest density possible" may not be the wisest action in every case. Should the word "developed" read "surveyed"? 26666 228.13(g) Identify the meaning of the abbreviation "H.O." and show how H.O. 607 may be obtained. Identify how the EPA publication "Analytical Methods Manual for the Ocean Disposal Permit Program" may be obtained. This manual and its analytical procedures should be made available for public comment. Identify the meaning of the abbreviation "IBP" and indicate how the IBP Handbook No. 16 can be obtained or who is its publisher. IS£_ ------- #37 Response to comments received from E, I. DuPont DeNemours & Company, Wilmington, Delaware. The following responds to the general comments itemized in the letter: 1. A provision similar to that suggested has been included in the regulation. 2. Provision for an equitable extension of permits pending final action has been included. 3. A provision has been added to the criteria allowing the use of a different approach toward initial mixing if an applicant can provide reasonable scientific evidence that such an approach is applicable in a specific case. The following responds to the specific comments attached: 220. 3(b) - Special permits may be issued for a three-year period, and we believe that the entire situation should be reviewed at least that often, based on a new application reflecting any changes that might have occurred during the three years. 220. 3(d) - The preamble responds to this comment. 221. 1 - Accepted. This could include a case where application might be made by telegram or in some form other than a letter. 221. l(j) - Accepted. Obviously, a full evaluation of all alternatives need not be made if one alternative can be readily identified and implemented. However, if an applicant takes the view that there are no feasible alternatives, then a full evaluation of all alterna- tives will be required. H 227 ------- #37 2 221. 3 - These sections assume that, where an applicant is not a per- mittee, the two parties will enter into a contractual arrangement to protect each other's interest. 221.4 - Accepted, The description must be adequate, but need not be full if this is not pertinent to the permit action. 222. - All comments on sections part 222 are addressed in the preamble. 223. 2(c) - Part 223 will be modified in the near future and this comment will be addressed then, 224. 1 - The present language gives the Regional Administrator the discretion to require reports from the most appropriate party in any specific case. 227. 2(a)(1) - Accepted. This is consistent with the Congressional Committee reports resulting from oversight hearings during 1976 and referenced in the EIS, 227. 6 (a) (5) and 227. 6(c) - EPA's concern over the presence of car- cinogens, mutagens or teratogens in a waste is due to their potential impact on humans, not on the biota. The possibility exists of these constituents entering the food chain in some fashion, going into food species and, therefore, directed toward human beings. Delaying implementation of this requirement until adverse effects are esta- blished could allow irremediable damage to occur in the meantime. Special studies of the entire waste as well as of specific constituents can be required as needed. 227. 7 (a) - An appropriate change has been made in the criteria based on this suggestion. ------- #37 3 227. 7(d) - The comment is accepted and an appropriate change has been made in the regulation. 227.12 (b) - If a waste interacts with sea water it does not come under the classification of this section which deals with inert waste. 227.15(c) - An appropriate change has been made to this Subpart C in response to this comment. 227.16(b) - A change has been made to require full comparison of all methods of disposal and associated impacts. 227.18 (g) - The regulation clearly states that not only is bioaccu- mulation a factor to be considered, but this consideration will also be given in the context of possible adverse effects on humans, either directly or through food change interactions. 227.18(h) - The language has been changed to require an overall as- sessment of the impacts of the various alternatives to ocean dis- posal as well as ocean disposal itself. 227. 20 (a) - The consideration in this particular section of the criteria are limited to the impacts of the ocean dumping itself, not on other uses of the ocean. We do not believe it is appropriate at this particular place to consider the long-range effects of alternatives on other parts of the environment, nor do we believe that the terms "long-range" and "continuing" can be made more explicit. However, in the overall context of the criteria, a long-range effect would be one which shows evidence of a continuing trend in an adverse direction over a period of time which could be expected to continue should the noon ------- #37 4 dumping continue over that period of time. 227, 25 (b) - The provisions in this section deal with the imple- mentation plans for eliminating certain toxic materials from ocean disposal. While it is quite true that a plant may treat and use process water from a polluted source, this does not eliminate the plant's respon- sibility for meeting the water quality criteria. The provisions in this section are intended to provide some guidance on sources of pollutants and methods in which an industry could adjust its processes so as to meet the ocean dumping criteria. If a plant is using water from a polluted source which could not meet this criteria, then consideration should be given to an alternate water supply. 227. 27 (a) (1) - The criteria contain a provision for the use of an application factor other than 0. 01, if reasonable scientific evidence is provided to support the use of such a factor. 227. 27 (b) - We feel that the use of three levels of organisms in the bioassay is a reasonable requirement. The criteria states that either phytoplankton or zooplankton may be used. In many cases the laboratory conditions may not actually represent the extremes of environmental stress at a site; however, it is desirable to simulate this as closely as possible so that the interaction of the waste with the species used in the bioassay will be determined under conditions which would be appropriate to reveal the worst toxic effects. 227. 29 (a) - The criteria contain a provision for the use of a different approach toward initial mixing if there is reasonable scientific evidence to support it. ------- #37 5 228.10(c)(1) (i)(ii) - The criterion requiring detectable concentrations above normal ambient values is only one of several criteria applied in determining that a material is in a certain impact category. The ecological and environmental significance of a number of factors are included in the various parts the criteria. We believe that the detection of a pollutant or waste constituent is adequate reason for action, and it is not necessary that a criterion of statistical significance be applied here. 228.11 - The change in use of a site would be achieved through modi- fication of permit conditions. Part 222 has ample provisions for appealing such a decision. 228.13(d)(2) - The provisions given here on selection of sampling stations are considered to be guidance only when local indications show that either a reduction can safely be made or, conversely, that more stations should be taken. The sampling plan should certainly do that. 228.13(e)(l)(ii) - The requirement of bottom station density has been changed so that it is now a recommendation. There may, of course, be times when a different station density should be used, depending upon prior knowledge of the site and the type of bottom density involved. 228.13(e)(2) - The bathymetric survey is an initial phase of the base- line survey, and we believe as much detail as possible is needed at this stage to avoid overlooking significant bottom features. 228. 13(g) - Reference to these specific publications has been deleted, since some of the publications are out of date at this time. ------- TERECO CORPORATION Man's Role inthe Biosphere ECOLOGICAL SYSTEM ANALYSTS Environmental Assessments WATER QUALITY CONSULTANTS Pollution Control GLOBAL OCEANOGRAPHIC STUDIES Coastal Zone to the Abyss September 20, 1976 Mr. T.A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Dear Mr. Wastler: Having reviewed "Ocean Dumping, Proposed Revision of Regulations and Criteria" as published in the Federal Register of Monday, June 28, 1976, I am prepared to offer some suggestions as to changes that may improve the document and permit a greater chance of achieving the objectives underlying the reason for studying the disposal sites in the first place. At the outset, let me say that in overview I am pleased with many sections of the document. The places where my sentiments are at variance with the criteria center largely in the field study and reporting parts of the document. To me, sampling is a most important part of this activity and my philosophy here is simply that I would rather see a smaller number of samples properly worked up and conclusions drawn therefrom than to have a plethora of expensive samples taken and the results treated largely as a data report. The backbone of oceanography is overloaded with half-digested data reports - let's not contribute further to oceanography's demise into a sea of numbers. Please take my attached comments and utilize any or all parts thereof as you see fit. Certainly some of them are in need of expansion and more lucid explanation, but time has been a limiting factor up to now. If, however, I can be of further help to you and to EPA in regard to this effort, please do not hesitate to call upon me. I am of the opinion that ocean dumping - to be or not to be - is among the important issues shaping our whole environmental posture today. WILLIS E. PEQUEGNAj President ' WEP/pc Enclosures 600 University West P. O. Box 2848 College Station, Ta«as 77840 —— Telephone (713) 846-7087 or 846-0211 ------- Section 228.13. Guidelines for ocean disposal site baseline and trend assessment surveys under section 102 of the Act. Comments: (much of this is directed to 228.13, d (2) ). 1) I believe that the number of sampling stations should be established, as follows: a. There should be 5 sampling stations in a disposal site having an area ranging between 140 and 200 square nautical miles. They should be arranged with one station in each corner and one station in the center. b. For incineration sites that may have substantially larger areas, I recommend that there be 8 sampling stations arranged as below I would then advise that EPA make every effort to locate disposal sites of any type "away from the influence of major river inflows, ocean or coastal currents, or other features which might cause local perturbations in water chemistry, " It seems to me that it is EPA's responsibility to exercise great perspicacity in selecting dump sites or in approving those selected by consultants or contractors. Keep them away from local perturbations. This can cut down on unnecessary sampling. d. As for control stations, I see no reason for control stations when one is doing a baseline survey. This only serves to enlarge the site. When, however, one is carrying out a true monitoring survey, that is, when incineration or dumping is going on, then a control station makes sense. At such times H 234 ------- control stations should particularly be "upcurrent" of the disposal activity. As for 3 replicated hydrostations I believe this to be an unnecessary increase in sampling. Certainly no mora than two replicates should ba required. Actually, 1 would prefer to see that large water bottles (30- liter Niskin type bottles) were used so that they could take duplicate samples from each bottle at each station. Then, In the laboratory, if the runs of the first two samples (one each from the two hydrostation) had disparate values, the third should be run. If you make the investigator take two hydrostations at each master station while drifting he will in essence be doing 10 or 16 stations, depending on the type of site. He will then take duplicate samples from each bottle. Thus, he has 4 samples from 2 Niskin bottle casts at the replicate hydrostations of each master station. This gets at precision of analysis as well as time-space variability in the parameters. One should expect rather large standard deviations in such matters as phytoplankton and chlorophyll a but not very large in regard to conservative properties. How many depths should be sampled at each hydrostation? I believe the 7 or 8 depths may be too many. Permit me to suggest that the investigator should' first run an STD to the bottom, if feasible. Then, on the basis of the findings there, he should establish 3 sampling points between the surface sample and near-bottom. This would apply primarily to water depths H 235 ------- over 150m, whereas 3 depths would be sufficient in water at or under 150m. g. All of the above becomes very important in regard to water column biota, especially the phytoplankton. If 30-liter Niskin bottles are used, I see no reason why 10 liters from each replicate hydrostation can't be used for phytoplankton. These samples of water would then be filtered through 20 micron and 0.45 micron NITEX mesh. Some specific comments follow; 228.13, 3-(l). What is a "turbidity" measurement to be? For example, is a Secchi disc reading satisfactory, or does one need a transmissometer or some other type of nephelometer. Do you want to know whether it is caused by organics or inorganics? My sentiments are to the effect that if the waste is low density, a Secchi disc is satisfactory. If, on the other hand, it is high density, I suggest that bottom-to-surface profiles be taken with a transmissometer. 228.13, d (3). Water column biota. This section calls for a bottom trawl for demersal fishes. Since the demersal fishes feed from the bottom, by definition they belong to the benthos. Hence it seems to me to be unnecessary to require that a separate trawl be taken here. Combine it with the "Bottom Sampling." 228.13, e (i). Trawls. I believe that under trawl hauls there should be the specification that these should be accomplished with an otter trawl having wooden doors 41 236 ------- for hauls on the shelf and steel V-doors for the continental slope and deeper waters. Furthermore, it is suggested that hauls be of the following on-bottom durations: a) 15 minutes on the shelf b) 30 minutes on the slope to 1000m c) 60 minutes for depths over 1000m Cores It is recommended that a gravity corer not bt used for: a) sediment analysis b) meiobenthos c) microbenthos Rather I would use either a Smith-Mclntyre grab or a J-0 box corer to obtain the master sample, then 1 would subsample from the S-M or J-0 samplers by means of handheld plastic corers (3.5cm i.d.) pushed into the sediment sample. The following subsamples could be taken from each master sample: 1. Two cores for meiofauna 2. One core for shelled microbenthos e.g. forams, coccolithophores, etc. 3. One core for sediment texture, etc. The meiofauna is retained on a 62 micron sieve and the microbenthos on a 38 micron sieve. A separate grab or box-core should be taken for: a) hydrocarbons b) trace metals H 237 ------- Phototrawls 1 recommend that the phototrawl unit be deleted and a series of bottom photographs and/or video tapes be taken. Although the phototrawl appears to be good idea in IBP Handbook No. 16, "Methods for the Study of Marine Benthos," there are few people who ever have or presently use them. As a substitute, 1 suggest that a series of 35mm (at least 36) pictures be taken around the master stations with a bottom camera. In the case of shallow stations, it mav be advantageous to utilize TV and thereby video tape the bottom while the ship drifts. 228.13, e (4) Benthic Biota Regarding tissue samples of "respresentative species," 1 believe this requirement should be spelled out to read "Tissue samples of the following types of organisms shall be analyzed for persistent organohalogens, pesticides and the eleven heavy metals: 1) A predominant species of demersal fish (possibly a macrourid) 2) The most abundant macroinfaunal species (probably either a polycheate or a bivalve) 3) A dominant epifaunal species, with particular preference for a species of economic Importance (possibly a penaeid shrimp) Macrobenthos Under this category I would actually list two categories, viz., the macroinfauna and the macroepifauna. The macroinfauna should be sampled by means of the Smith-Mclntyre or J and 0 samplers. The sediment so obtained will be sieved through a 500 micron sieve. Those species retained by this sieve are the macroinfauna. The macroepifauna will be sampled with the otter trawl, along with demersal fish. Certainly one demersal fish should be tested for metals. H 238 ------- REPORT A great deal is said in the Proposed Rules about: a) Where to sample b) When to sample, and c) Laboratory analyses to be perform id upon the samples But very little is said in the Proposed -Rules about: a) The study plan that is to be submitted by a contractor and approved or disapproved by EPA. b) Going beyond a simple data report with a rather vague reference to multivariate analysis. Analysis of variance may be sufficient for some studies (e.g. baseline surveys of sites before any dumping or incineration has occurred). In this context isn't the term control area meaningless for baseline studies? c) Little is said about the evaluation of data beyond the state- ment " using appropriate methods of data analysis for the quantity and type of data available." Any report is of limited value that does not attempt to synthesize findings into a coherent summarization (executive summary) and that points out the strengths and weaknesses of the data base, evaluates the observed biological and ecological variations and judges whether their magnitudes are too large to satisfy the objectives of the study, and that does not give a professional judgment as to the predictive potential of the study. to me that EPA should say the study plan should State or define the problem in workable (reasonable) terms. Show that data collection, to the extent feasible, is based on a statistical sampling design. Indicate that data analysis will utilize analysis of variance and a multivariate method. It seems 1) 2) 3) H 239 ------- 4) Recognize that in the case of random sampling one must resort to statistical inference, since we must estimate unknown population parameters. In regard to the report, perhaps one should more clearly state what the difference is between "dominant organisms" and "indicator organisms." They may, of course, be one and the same thing. Also, I feel that "organism diversity" needs to be spelled out. Do you mean here species diversity? If so, it should be stated and perhaps you should indicate a preferred method of calculating it (say, the Shannon-Wiener formula). However, it should be recognized that such data may be of limited value in the deep water. If by organism diversity you mean differences in population numbers among stations, then analysis of variance is called for. The essential point, I think, is that one must establish a sampling program that will satisfy the criteria for meaningful application of statistical techniques. H 240 ------- #38 Response to comments received from Dr. Willis Pequegnat, TerEco Corporation, College Station, Texas 228,13 1. (a) Five stations would be a reasonable number for a site not having irregularities, may major rises or depressions near the site. We do not feel, however, that it would be appropriate to include such specific requirements in these guidelines since local conditions may very well rule otherwise. (b) These guidelines as presently construed do not deal with ocean incineration sites. When criteria are promulgated for the use of inciner- ation at sea as a standard methodology, then the guidelines will have to be modified to make an allowance such as is recommended here. At the present time we believe that the selection of sampling stations for ocean incineration sites should be done on a case-by-case basis, since they will be chosen essentially as parts of research activities or under interim permits. (c) We would certainly agree with this comment interms of selecting new sites; indeed, the criteria of sections 228. 5 and 228. 6 do require such considerations be made. Hoever, some of the existing sites are close to areas where there may be local anomalies and we have to allow appropriate flexibility in the guidelines for the study of such sites. (d) During the initial baseline survey some stations which could serve as future control stations should be sampled. This is, of course, more important for benthic conditions than for the water column. 11 O /. 1 ------- #38 2 (e) The point is well taken. The language in the guidelines has been changed to require that a minimum of two replicates should be required at each hydrostation. (f) The seven or eight depths listed are merely locations that might be considered in selection depths for sampling. This is not to imply that seven or eight samples should be taken. As stated later in the guidelines, it is indicated that three sampling depths are generally acceptable. (g) This approach is certainly acceptable, however, we do not believe that we should specify this as an essential requirement in the guidelines. 228. 13(d)(1) - We believe the type of measurements to be done should depend, as he suggests, on whether it is performed with a Secchi disc on the nature of the waste in some cases, or with a transmisso- meter in others. 228. 13(d)(3) - The point made concerning demersal fish is well taken, and an appropriate changes has been made in the guidelines. 228. 13(e)(i) - Regarding comments on trawls and cores, the detailed specifications laid out in these comments are certainly valuable. However, we do not believe that the guidelines should contain this level of specific guidance, particularly with regard to the types of sampling devices to be used since these represent the present state- of-the-art and may be improved in the future. The phototrawl requirement has been eliminated as recommended. ------- #38 3 228, 13(e)(4) - Bent hie Biota - We believe the comment is well taken, and the guidelines have been changed appropriately. Macrobenthos - The categories of macrobenthos indicated have been listed. Report - We agree with the comments made on the content of the Report; however, we do not believe that specific guidance on such a report should be presented in these guidelines. We believe that the nature of the report will to a large extent be determined by the type of sampling that was done, whether or not benthic features are regarded as more important than pelagic features, the type of data during the baseline surveys, and the type of data already available on the site and the general area. Since the plan of study, which would include an outline of what the report should say, must be approved by EPA, we feel that there will be sufficient guidelines given a surveyor during the planning period of the survey. We would not like to specify as a general rule the type of data analysis which would have to be prepared. Particularly, we would not like to specify certain type of statistical analysis which must be performed when the data available may not be sufficient to support that type of analysis. H'243 ------- 110 Edisto Avenue Columbia, South Carolina 29205 September 20, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Mr. Wastler: The following comments pertain to the EPA Proposed Revisions of Regulations and Criteria for Ocean Dumping which appeared in the Federal Register (26644-26667) Vol. 41, No. 125, Monday, June 28, 1976. These comments are being sent to you in my capacity as a private citizen. Professionally X am a marine biologist with 25 . years experience at Duke University and the University of South Carolina. I have published about one hundred technical papers, some dealing with pollution effects. In addition, I have edited two books dealing with pollution and physiology of marine organisms. Pollution studies involving estuaririe organisms have demonstrated that certain harmful effects result from long-term exposure to given toxicants. Bioassay data based on acute exposures is helpful in ascertaining environmental impacts, but by themselves they are inadequate. Species vary in the rate of bioaccumulation and the level of tolerance to a given pollutant. Although some data on interspecific differences of shallow-water organisms exist, little is known pn oceanic species. Emphasis must be placed on the effects of interaction of multiple pollutants on oceanic organisms. Again based on existing studies, two or more toxicants may have a more profound influence than if one acts alone. The proposed regulations do not appear to stress the importance of this point. As a matter of fact, the regulations fail to define trace contaminants. A trace of mercury, a trace of arsenic, and a trace of PCBs might add up to a harmful milieu for marine organisms (the multiple factor interaction principle). In reference to dredged materials (227.13 c), the elutriate test may be helpful in predicting water quality, but it does not help indicate the possible effects on benthic organisms. H 245 ------- Mr. Wastler Page 2 September 20, 1976 Special care must be taken in approving sites to dump "unpolluted" dredged material. Increased sediment load in a biologically productive area can have a deleterious effect, especially on filter feeding organisms. Ocean dumping is a complex problem, and regulations controlling disposal procedures will need periodic review in order to reflect the results of future research and technology. I hope my comments are helpful in this current revision of regulations. With best wishes. Sincerely yours FJV/sc H* 246 ------- #39 Response to comments received from F. John Vernberg, Columbia, South Carolina. In his comments regarding bioassays, the approach of using bio- assays on the liquid, solid and suspended particulate phases provides a complete spectrum of bioassay determinations dealing with the direct toxic effects of the entire waste on organisms. Thus, the interaction of specific contaminants within a waste is taken care of in the procedures specified in the regulations. In reference to the comment on section 227. 13(c), the elutriate test is used only as an indicator of immediate toxic effects from the release of pollutants during dredging or redeposition. The benthic bioassay is used to estimate long-range effects from the waste materials, and the selection of dredged material sites is subject to the same criteria as the selection of sites for other materials. H 247 ------- lfly/EAUTHorPENN8YuVA! DEPARTMENT OF ENVIRONMENTAL RESOURCES POST OFFICE BOX 2063 HARRISBURG. PENNSYLVANIA 17120 September 20, 1976 Director Oil and Special Materials Control Division U. S. Environmental Protection Agency 401 M Street, S.W. (WH-548) Washington, D. C. 20460 Dear Sir: We have reviewed the draft environmental impact statement for the proposed revisions to ocean dumping criteria. Generally the document is satisfactory. There are two portions to which we suggest changes. One paragraph on Page 91 deals with bioassay testing. Much more information in regard to the bioassay methodology, application factors, and other descriptions of the type testing to be used needs to be specified for us to evaluate the acceptability of that proposal. On Page 113, under Impact Category I, the terminology "statistically significant decreases" is used in reference to the populations of species inhabiting the disposal site. Without some definition of the term statistically significant and recognition of the state of the art in marine damage assessment, it may be difficult or impossible to set criteria. It is not without possibility there could be some biological impact that would be created by increasing an undesirable species. Therefore, we would suggest that the concept for evaluation might be related to demon- strable damage to populations inhabiting the disposal site rather than trying to determine what constitutes a "statistically significant decrease" in an aquatic population. We appreciate the opportunity to comment on this document. Sincerely yours WILLIAM B. MIDDEND0RF ' Deputy Secretary for Environmental Protection and Regulation ------- #40 Response to comments received from the Department of Environmental Resources of the Commonwealth of Pennsylvania, Harrisburg, Pennsylvania. The appropriate bioassay procedures are specified in separate publications developed by the EPA and the Corps of Engineers research staffs. The details of the tests to be used are included in these publications and in guidance on specific problems provided by EPA regional offices. The term "statistically significant" is defined in section 228. 2(f) This criterion deals only with valuable commercial and recreational species as defined in section 228. 2(g). This criterion is only one of several criteria used to assess whether or not damage to a site is in Impact Category I. H 250 ------- COORDINATING COUNCIL ON THE RESTORATION OF THE KISSIMMEE RIVER VALLEY AND TAYLOR CREEK - NUBBIN'S SLOUGH BASIN CHAIRMAN Joseph W, lander*, Jr., Secretary Department of Environmental Regulation MEMBERS Honorable Doyle E. Conner Commluioiw of Agriculture Mr. Harmon W. ShMcfc, Executive Director Department of Natural Retourcet Dr. O. Earto Fry#, Jr., Executive Director Dr. O. Earto Frye, Jr., Executive Direct Gama ft Frath Watar Fl«h CommMon STAFF Mr. Patrick M. McCaffrey, Director 2S62 EXECUTIVE CENTER CIRCLE EAST TALLAHASSEE, FLORIDA 32301 (904) 488-1372 trol District September 17, 1976 Mr. T. A. Wastler, Chief Marine Protection Branch (WH-448) Waterside Mall 401 "M" Street, S.W. Washington, D.C. 20460 Dear A1: I have received the draft EIS for the "Proposed Revisions to Ocean Dumping Criteria." Since we last talked, the "routine" mailings finally did arrive, and we have Initiated our review. I am not personally involved, as I am now on a leave of absence from DER 1n order to serve as Staff Director for the longest-named body in State Government. I anticipate returning to the Department next summer, though 1n what capacity 1s at this point uncertain. Your contact for marine matters in the Department will be Mr. Thomas X. Savage. Tom has assumed many of n\y former duties, and I am confident he will do a fine job. Thanks again for your assistance. I will be in touch. Sincerely, Patrick M. McCaffrey Staff Director PMM/fh cc: Thomas X. Savage H 251 ------- #41 Comments from Coordinating Council on the Restoration of the Kissimmee River Valley and Taylor Creek - Nubbin's Slough Basen, Tallahassee, Florida. No response necessary. Ill 2 ° fl *¦< ------- iSf National Wildlife Federation 1412 16TH ST., N.W., WASHINGTON, D.C. 20036 Phone 202—797-6800 September 22, 1976 Mr. T. A. Wastler Chiefj Marine Protection Branch Oil & Special Materials Control Division (WH-5^8) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Re: Additional Comments on Proposed Revised Ocean Dumping Regulations and Criteria Dear Mr. Wastler; As the comment deadline approaches, the National Wildlife Federation wishes to supplement its previous comments with one final submission. I enclose the "Argument" section (pp. 9-34) of a legal memorandum which we had planned to file, among other legal papers, with the Court in connection with NWP v. Train, et al., Civ. No. 75-1927 (D.D.C.). The enclosure summarizes in concise form what we view as the major legal deficiencies in the proposed revised ocean dumping criteria, as they apply to dredged material. As you are probably aware, we have refrained from filing further legal papers at this stage on the basis of a commitment from EPA (which we hope to formalize into a court-approved "Consent Order") that it will complete the final rulemaking process by no later than the end of the year. Although NWF regards the proposed revised criteria as they relate to dredged material (these criteria were given immediate interim effect by the Corps of Engineers in early July), as representing little or no improvement over the Oct. 15, 1973, version, and while our legal Interests continue to be prejudiced by ocean dumping which continues to take place without adequate environmental evaluation, we are willing to await the outcome of an expeditious rulemaking process before going back to court. We hope this approach will accomplish more than just delay. Ideally, the final ocean dumping criteria will resolve our major concerns. Even If they do not, hopefully they will permit at least a narrowing of the issues which need to be pressed before the judicial branch. In any case, we think it is worth a try. i I tf~253 ------- National Wildlife Federation Mr, T. A. Wastler Page 2 September 22, 1976 As the rulemaking process proceeds over the next 90 days, we trust you will allow us to work with you to develop a set of final criteria we can all live with. Sincerely Kenneth S. Kamlet Counsel KSK/jk Enclosure cc: Fred Disheroon, Esq. Jim Rogers, Esq. H 254 ------- I UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL WILDLIFE FEDERATION 1112 Sixteenth Street, N.W. Washington, D.C. 20036 Plaintiff, v. RUSSELL E. TRAIN, in his official capacity as Administrator, Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 and MARTIN R. HOFFMANN, in his official capacity as Secretary, Department of the Army The Pentagon Washington, D.C. 20301 and JOHN W. MORRIS, in his official capacity as Chief of Engineers, Corps of Engineers Department of the Army Forrestal Building Washington, D.C. 20314 Defendants. PLAINTIFF'S STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF ITS SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT Civil Action No. 75-1927 Kenneth S. Kamlet National Wildlife Federation 1412 16th Street, N.W, Washington, D.C. 20036 202-797-6870 Richard A. Frank Center for Law & Social Policy 1751 N Street, N.W. Washington, D.C. 20036 202-872-0670 Attorneys for Plaintiff H 255 ------- -9- III. ARGUMENT A. THE REVISED DREDGED MATERIAL CRITERIA VIOLATE THE MPRSA BY FAILING TO PROHIBIT OCEAN DUMPING WHICH MAY UNREASONABLY DEGRADE OR ENDANGER THE MARINE ENVIRONMENT OR HUMAN HEALTH The MPRSA authorizes the Secretary to issue an ocean dumping permit only where he Is able to determine that the proposed dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities, 33 U.S.C. § liU3(a).l/ The revised dredged material criteria violate this prohibition against allowing dumping not shown to be "reasonable" or safe by substituting what amounts to a presumption in favor of ocean dumping. This reversal of the statutory burden of proof Is evident throughout the dredged material criteria, as illustrated by the following examples; (1) Section 227.treats as acceptable for ocean dumping, materials which satisfy the environmental Impact prohibitions, limits, and conditions of Subpart B.2/ However, nothing in the revised criteria makes dredged materials which do not satisfy the Subpart B criteria, unacceptable for ocean dumping. 1/ The Secretary's authority to issue a permit is subject not only ¥o the § 103(a) requirement of no unreasonable degradation, but is also "[s]ubject to the provisions of subsections (b), (c), and (d)" of section 103. Although the referenced subsections permit the Secretary to approve dumping which may cause unreasonable degradation under certain circumstances, this in no way relaxes his obligation to fully discharge the requirements of section 103(a) — or the Administrator's duty to fully incorporate these requirements In the dredged material criteria. (Note: dumping may occur despite a finding of unreasonable degradation only where the Secretary certifies that there is no "economically feasible" alternative and the Administrator grants a "waiver"). 2/ As is noted in the preamble to the proposed revised regulations and criteria (kl Fed. Reg. at 26615), "each of the Subparts B, C, D, and E addresses a separate consideration which is required by the statute in Section 102. No subpart in and of itself is dispositive of the issue ..." Mere adherence to Subpart B requirements is, therefore, insufficient to support a determination that "the proposed disposal will not unduly degrade or endanger the marine environment . . (Cf., § 227.4). « 256 ------- -10- (2) Section 227.13(b) treats as acceptable for ocean dump- ing, dredged materials which satisfy any of three qualitative criteria relating to their pollutlonal status. However, noth'.ng in the revised criteria makes dredged materials which do not satisfy these criteria, unacceptable for ocean dumping. (35 Section 227.13(c) treats as acceptable for ocean dumping, dredged materials the "elutriate concentrations" of which do not exceed the "limiting permissible concentration as defined in Section 227.27," after allowance is made for dilution and the volume and rate of the proposed dumping. Nothing in the revised criteria makes dredged materials which exceed these levels, unacceptable for ocean dumping. (t) The failure to define "trace contaminants" has transformed a legal presumption against dumping dredged material containing Section 227.6(a) substances as other than trace contaminants, into the effective allowance of such dumping. I.e., in the absence of any benchmark to be applied by a would-be dumper as to when a substance exceeds trace contaminant levels, the burden is effectively shifted to the permitting authority (i.e., the District Engineer, in the case of dredged material) both to determine what a trace contaminant is and whether it has been exceeded, and to decide whether it is necessary for him to make such a determination in the first place. (55 Sections 227.6(d), 227.13(d), 227.29(a) (read together with §§ 227.13(c) and 227.27(a)(3|), and 228.10(c)(l)(v), all conclusively presume that degradation and endangerment which may occur within four hours after disposal is per se permissible under the MPRSA and the Convention. (6) Sections 227.13(b) and 227.13(c) conclusively presume that dredged material which satisfies one of three qualitative criteria or one quantitative criterion may always be ocean-dumped without producing unreasonable degradation or endangerment. EPA does not deny that this approach "may allow the dumping of dredged ------- -11- material which will have an adverse effect . . . ." (DEIS, at 153; see also. DEIS, at 21, 23, 26-27, 65, 86, Ho, 141-142, and 141). Rather, EPA contends that the "coat of full testing of all dredged material is prohibitive and unwarranted . . . (DEIS, at 153). (7) Section 228.4(65(1) permits baseline and trend assess- ment studies of dredged material disposal sites to be developed on a case-by-case basis from the results of research not yet completed, and Section 22B.9 requires a monitoring program only where "deemed necessary" by EPA or COE. These provisions effectively shift the burden from the dumper (i.e., to show that unreasonable impacts are not occurring) to the permitting authority (i.e., to look for and find such impacts). (8) Finally, as the defendants have pointed out in their Memorandum in Opposition to Plaintiff's Motion for Summary Judg- ment (March 15, 1976), at 4; "The criteria ... are not the sole basis [employed by COE] for determining the acceptability of ocean dumping of dredged material." Other "factors and policies" are taken Into account by the Corps. One of these other policies is found in Section 209.12Q(p)(l) of COE's Interim final regulations on "Permits for Activities in Navigable Waters or Ocean Waters," 40 Fed, Reg. 31319, 31333 (July 25, 1975). These regulations help to weightthe balance against strict regulation of ocean dumping by making it necessary for Division Engineers (at an intermediate level in the chain of command) to deny ocean dumping permits, while a mere District Engineer (the lowest regulatory level) Bay Issue such permits.!/ 1/ One might also make reference to the Corps of Engineers' so- called "Dumping Grounds Regulations," 33 C.F.R., Part 205- Section 205.10(a)(2) of these regulations astonishingly directs that "Cajll material [dredged material] originating In Sew York Harbor, Hudson River south of Hastings, New York, and East River west of Throgs Neck la required to be dumped at sea." (Emphasis added). Plaintiff does not pressThli" matter Before this Court because the Corps of Engineers has promised voluntarily to "purge" those portions of its "Dumping Grounds Regulations" that are inconsistent with the MPRSA. H 253 ------- -12- EPA has correctly noted that given the scientific un- certainties about ocean dumping Impacts, "the criteria regarding the composition and properties of the matter to be dumped should be stringent enough to provide adequate environmental safeguards . . (DEIS, at 33). Yet, despite the clear Intent of Congress that "Epjeralt issuance may come only after the applicant has shown that the proposed activity will not degrade or endanger human health, [etc.] , . .,"1/ the revised dredged material criteria, like their predecessor criteria, resolve all doubts as to the safety of ocean dumping against the ocean and public health. Such an approach, if. allowed to continue, can only lead to the unreasonable degradation and endangerment of the values which Congress, in enacting the MPRSA, sought to protect and safeguard. Such an approach ~ as exemplified by COE's failure to have ever denied an ocean dumping permit In the 3 1/2 years since the MPRSA first became effective — is manifestly not what Congress Intended and is in patent violation of the letter and spirit of the MPRSA. B. THE DREDGED MATERIAL CRITERIA ABE DIFFERENT PROM AND LESS RESTRICTIVE THAN THE CRITERIA FOR ALL OTHER WASTES, IN VIOLATION OF THE MPRSA AND WITHOUT A RATIONAL BASIS FOR THE DISTINCTIONS The KPRSA (§ 103(b)) requires the Secretary of the Army, in making the "lack of unreasonable degradation" determination which is prerequisite to approving an ocean dumping proposal, to "apply those criteria . . . relating to the effects of the dumping," established pursuant to | 102(a) for non-dredged wastes. There is a legal duty, in other words, to apply to the evaluation of ocean- dumped dredged material, criteria at least comparable to those applicable to non-dredged wastes under § 102(a). 1/ s. Rep. No. 151, 92d Cong., 1st Sess. (1971); H.R. Rep. No. 361, 92d Cong., 1st Sess. (1971). H 250 ------- -13- EPA has admitted thlB obligation, by acknowledging In Its DEIS (at 136) that "the criteria to be applied to [dredged materia^ must provide the same critical analyses that are prerequisite for review of permit applications for disposal of municipal and industrial wastes." By the same token, plaintiff agrees with EPA that the dredged material criteria need not be Identical in every respect to the criteria for non-dredged wastes. However, plaintiff does strenuously maintain that differences In the criteria for dredged and non-dredged wastes must be Justified as having a rational basis related to the policies and purposes of the MPRSA. Dramatic differences In the criteria for dredged and non- dredged wastes do exist. The revised dredged material criteria In fact fall to "provide the same critical analyses that are prerequisite for review" of other categories of ocean-dumped wastes And no rational basis or adequate Justification has been presented by defendants In support or this lack of comparability. A few examples of the disparity In approach of the revised criteria toward dredged and non-dredged wastes will illustrate and document plaintiff's concerns: (1) The revised criteria applicable to non-dredged wastes set forth specific quantitative limits which may not be exceeded under a special permit by wastes containing the highly toxic Section 227.6(a) substances. Yet, nothing In the revised criteria or elsewhere Imposes similar quantitative limits on the ocean dumping of dredged material containing Section 227.6(a) substances. (2) Section 227.7(c), applicable to non-dredged wastes, limits the ocean dumping of wastes containing living organisms. The revised criteria contain no comparable provision applicable to dredged material, despite the fact that dredged material H 260 ------- associated with sewage outfalls may often tie contaminated with microorganisms.1/ (3) Section 227.8, applicable to non-dredged wastes, prohibits dumping at a rate which causes an "LPC" ("limiting permissible concentration1*) based on toxicity to be exceeded. (See also, §§ 227.27(a) and 227.29). By contrast, not only do the revised dredged material criteria define the "LPC" for dredged material purposes, not in terms of toxicity, but in terms of "applicable water quality criteria" (§ 227.27(a)(3)),1a/ but they nowhere prohibit the dumping of dredged material which exceeds even this relaxed "LPC" criterion,2/ 1/ Although § 227.18(e), which does apply to dredged material, requires "consideration" of the presence of pathogenic organisms which may cause a public health hazard, this subsection applies only to the assessment of esthetic, recreational, and economic impacts. Unlike § 227.7(c), it cannot by itself be relied upon to compel permit denial. Moreover, unlike 5 227.7(c), it does not even call for any "consideration" of purely ecological effects of extending the range of pest species, or of Introducing viable, non- indigenous species to an area (as opposed to the commercial and recreational implications of contaminating seafood species with pathogenic microorganisms). la/The utter lack of justification for this disparity in approach, Ta demonstrated by EPA's own DEIS. With respect to non-dredged wastes, the DEIS states (at 120a) that; "the present state-of- knowledge [is] not yet sufficiently advanced to allow the promulga- tion and use of marine water quality criteria of sufficient ac- curacy for a large enough number of materials to serve the needs of the permit program." With respect to dredged material, however, the same DEIS makes the following contradictory assertion (at 137): "The revised procedures for determining the environmental accept- ability for disposal of dredged material In ocean waters In terms of appropriate water quality criteria provide a considerably more effective regulatory approach than the existing arbitrary classification." Indeed, the DEIS throughout provides extensive documentation for the criteria set for non-dredged wastes, but little or no documentation or Justification for the considerably weaker criteria established for dredged materials. 2/ The dredged material criteria mention the LPC only twice — In §§ 227.13(c) and (d). Subsection (c) specifies that dredged aaterlal will be considered environmentally acceptable for ocean dumping If "elutriate" concentrations, after mixing zone allow- ances, do not exceed the LPC. However, neither subsection (c), nor anything else, states that dredged material will be considered environmentally unacceptable if the LPC Is exceeded. Subsection (d) provides merely that, if elutriate concentrations do exceed the LPC, the district engineer "may" (but also, need not) specify sioassays when they will be "of value" In establishing dumping sondltlons or in determining dumping acceptability. Even if such bloassays are specified, nothing in the revised criteria or else- where sets forth any bioassay result which would dictate denial 3f dumping approval. " 261 ------- -15- Ci) Section 227.2, applicable to non-dredged wastes, makes provision for permit denial when the environmental Impact criteria of Subpart B have not been satisfied. Nothing In the revised dredged material criteria or elsewhere requires permit denial for the violation of Subpart B criteria or any other criteria.]./ (5) Section 227.9, applicable to non-dredged wastes, requires control of quantities dumped (even of Inert wastes) to prevent damage to the environment. The revised criteria contain no comparable provision applicable to dredged material, despite the fact that over nine times more dredged material is ocean- dumped each year than all other wastes combined.2/ (6) Section 227.10, applicable to non-dredged wastes, requires wastes which may pose serious obstacles to fishing or navigation or a hazard to shorelines or beaches to be dumped only at sites and under conditions which will ensure against such Interference or danger. The revised dredged material criteria, by contrast (§ 227.21 and Subpart D), require no more than "consideration" or "evaluation" of (and no controls on) esthetic, recreational, and economic impacts, and Impacts on other ocean uses. 1/ Section 227.6(a), which prohibits approvals "by EPA" for the ocean dumping of wastes containing specified substances as other than trace contaminants, in no way mitigates this defect. As noted elsewhere in this Memorandum, this subsection Is of question- able applicability to dredged materials which are ocean-dumped pursuant to COE, rather than EPA, approvals. Moreover, the lack of any operational definition of "trace contaminants," effectively makes the prohibition— even If It did apply to dredged materials— unenforceable and unlmplementable. 2/ Section 227.20(a), which applies to dredged material, provides merely for "consideration" to be given to possible long-range effects of continued dumping (as opposed to placing controls on such dumping), and Is limited In its coverage to activities which may have an Impact on other ocean uses (as opposed to those which may affect marine organisms or marine ecosystems). H 262 ------- -16- (7) Section 227.6(a) prohibits ocean dumping approvals "by EPA" for wastes containing Annex I (of the Convention) materials "as other than trace contaminants." Nothing in the revised criteria prohibits ocean dumping approvals "by COE" for wastes (i.e., dredged materials) containing Annex I materials "as other than trace contaminants." (8)(a) Section 228.12 lists Interim approved dump sites for non-dredged wastes. There is no listing of such sites for dredged materials. (b) Section 228.11(a) applicable to non-dredged wastes, requires modifications in disposal site use to be promulgated in the Federal Register (following notice and opportunity for public comment). Nothing In the revised criteria or elsewhere imposes a comparable promulgation requirement on modifications in the use of dredged material disposal sites. (c) Section 228.12 allows interim approved sites for non-dredged wastes (selected on the basis of historical usage) to remain in use without detailed study, "for a period not to exceed three years." Not only it there no comparable control on the use of dredged material sites, but § 228.4(e) affirmatively requires dredged material sites to be selected "based on historic uses of the site," along with historic knowledge, of dumping impacts in similar areas. (d) Section 228.6(b) requires site evaluation and designation studies to be "used in the preparation of an environ- mental impact statement for each" non-dredged material disposal site, but § 228.4(e)(1) leaves baseline and trend assessment requirements for dredged material dump sites "to be developed on a case-by-case basis from the results of research, Including that now in progress by the Corps of Engineers," and § 228.11(e)(2) simply provides that "a Joint environmental impact assessment for all [dredged spoil] sites within a particular area may be prepared . . . " (Emphasis added). It is not clear whether a Joint assessment need even be considered for any existing dredged spoil disposal sites. V4 PCI ------- -17- (e) Section 228.5(c) provides for termination of site use only during or after site evaluation studies, and only for sites approved on an interim basis. Since it is unclear whether existing dredged spoil sites have been "approved on an interim basis," and since nothing In the criteria requires "site evaluation studies" for dredge spoil sites within any set period of time, the revised criteria may permit the continued use of dredged material dump sites without termination ever being required or permitted. (f) Section 228.10 requires periodic evaluation of disposal Impacts for non-dredged wastes. Nothing in the revised criteria or elsewhere requires comparable evaluations for dredged materials. (g) Section 228.7 and 228.8 provide for placing limits on the total accumulation of materials at a dumpsite for non- dredged wastes and for limiting the times and rates of discharge to avoid exceeding these limits. There are no comparable provisions applicable to dredged materials. In short, there are numerous significant disparities in the approach of the revised criteria toward regulating dredged and non-dredged wastes. These disparities, separately and in aggregate, ensure that the ocean dumping of dredged material will be lesa effectively regulated than the dumping of all other wastes. No sufficient legal or technical justification has been or could be presented in defense of this disparate regulatory program. In an effort to defend this program EPA's DEIS in several places asserts that "[b]oth the Act and the Convention put dredged material in a different category from sewage and industrial wastes" (DEIS, at 62; see also, DEIS, 121), and that, therefore, "effective and implementable regulation of dredged material disposal requires a different approach from that used in the disposal of waste materials" (DEIS, at 63). U 264 ------- -18- Contrary to such assertions by EPA, however, nothing in the MPRSA or the Convention (other than the override and veto procedures of §§ 103(c) and (d)) Justifies regulating one waste category less stringently than any other. Thus, at congressional oversight hearings held in Washington, D.C. on February 27, 1976, COE's then Deputy Director of Civil Works, Brigadier-General Kenneth E. Mclntyre stated that: "The act singles out dredged material, because, in most Instances, it does not have the characteristic effects of what is commonly considered a pollutant in the form of domestic and industrial waste."1/ However, when asked to supply written documentation to back up this assertion, the General was forced to retract It: [M]y assertion that this was the reason dredged material was singled out in the Act [i.e., that its polluting effects are different from those of other wastes] cannot be documented and is probably inaccurate. I stand corrected on this point.2/ In fact, the only reason Congress dealt with dredged material in a separate section of the MPRSA was to integrate with- in one agency — the Corps of Engineers — authority over all aspects of dredging and dredged material disposal: This system, as agreed upon by the conferees, leaves to the Secretary of the Army the permit authority for disposal of dredged material, which would be used in connection with his existing authority to issue permits for dredging.3/ 1/ Joint Hearings on Ocean Dumping — Fart 2 Before the Subconm. on Fisheries and Wildlife Conservation and the Environment and the Sub comm. on Oceanography of the House Co™., on Merchant Marine and Fisheries, ^th Cong., 2d Sess., Ser. 25, at 228 (1976) (herein- after, "Joint Oversight Hearings"). 2/ Joint Oversight Hearings, suprs, id., at 243—. 3/ H.R. Re. No. 151)6 (Conference Report), 92d Cong., 2d Sess. (Oct. 9, 1972), 1972 U.S. Code Cong. & Adm. News 4278. ------- -19- This was the same approach — and for the same reason — as that employed In the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §1251, et ses.., in which dredge and fill dis- charges Into inland waters are regulated by the Secretary under Section 40*1, while all other pollutant discharges are regulated by the EPA Administrator (or delegated to the states) under Section 402.1/ In passing the MPRSA, Congress plainly recognized the pollution and environmental impact potential of dredged material. Section 2(a) of the MPHSA, for example, expresses the congressional finding that unregulated dumping of all material endangers human health and the marine environment. (The definition of "Material in § 3(c) specifically includes "dredged material"; accord, the Water Act, in which "pollutant" is defined to include "dredged spoil" [§ 502(6)]), Beyond this, however, the legislative history of the MPRSA reflects a clear awareness, on the part of the congressional committee members responsible for the legislation, of the potential impacts of dredged material ocean dumping. Thus, the Senate hearings on the ocean dumping bill contain the follow- ing observations by Senator Inouye: 1/ Thus, in an analysis prepared for his colleagues by Senator Muskle on the significant provisions of the conference agreement, Senator Muakle noted: The Conferees were uniquely aware of the process by which the dredge and fill permits are presently handled and did not wish to create a burdensome bureaucracy In light of the fact that a system to issue permits already existed. At the same time, the Committee did not believe there could be any justification for permitting the Secretary of the Army to make determination as to the environmental implications of either the site to be selected or the specific spoil to be disposed of in a site. Thus, the Conferees agreed that the Administrator of the Environ- mental Protection Agency should have the veto over the selection of the site for dredged spoil disposal and over any specific spoil to be disposed of in any selected site. Senate Debate on the Conference Report, in Congressional Research Service, Library of Congress, 93d Cong., 1st Sess., Ser. 1, A Legislative History of the Water Pollution Control Act Amend- ments of 1972 (Comm. Print for Senate Comm. on Public Works), at 177. 266 ------- -20- As I recall, one of the major reasons for this type of legislation has been the corps' rather Indiscriminate dumping of [dredged] material into the Great Lakes, one of the major causes of pollution in that area. • • • Taken by itself, I suppose the scientists would say mud, clay, rock, and sand would not be considered pollutants; but if mud, clay, rock, and sand are dumped into an ocean environment where you have living organisms, fishing grounds, coral beds, would not these materials — rock, clay, mud, and sand — become a dangerous pollutant to that type of environment, and kill all the fish, kill all the plants •Just as effectively as you would with chemicals? » • I think the record would indicate that we are dumping about 50 million tons of dredged spoil per year. It Is incon- ceivable to me to conclude that this type of dumping is not in any way hurt- ing the ocean environment .... I would think that the strongest provision should be made in disposition of spoil when one considers that it represents 80 percent of all the rubbish we dump into the ocean by weight.1/ The only things that have changed since Senator Xnouye made these statements are that (1) there is now twice as much dredged materialocean-dumped and (2) it now accounts for over 90, rather than 80, percent of all material ocean-dumped. In short, there isn't a shred of evidence that Congress intended for dredged material to be ocean-dumped any more freely than non-dredged wastes. All indications are to the contrary. As far as the Convention is concerned, EPA makes much of the distinction between "wastes" and "other matter," arguing CDEIS, at 62) that since Anne* X of the Convention "identifies lredged material as a 'material' rather than a waste, the framers >f the Convention obviously thought there was a substantive 1/ Hearings on Ocean Waste Disposal Before the Subconun. on Oceans md Atmospherr. if the Senate Comm. on Commerce, 92d Cong., 1st 5esB., Ser. i:, at 292-9** (1971). H 267 ------- -21- dlfference . . . Ev«n If this were so, however, as EPA acknowledges In the DEIS (at 62), tjie Convention specifies that "the same care Is to be taken In the disposal of dredged material In the ocean as In the disposal of anything else that Is proposed for ocean dumping." In fact, dredged material Is not characterized differently In the Convention from other wastes. Paragraph 9 of Annex I, which refers to "wastes or other materials," provides as examples of "other materials," sewage sludges, as well aa dredged spoils. EPA has never contended that sewage sludges quality for special treatment because the Convention refers to them as "mate- rials" rather than wastes. How then can It argue that dredge spoils deserve different treatment not only from that accorded to "wastes" but al3o from that accorded to "other materials," such as sewage sludge? So, It Is not true that the Convention refers to dredged materials In unique terms, let alone subjects such materials to uniquely relaxed requirements. Even If It did, Section 102(a) of the MPRSA would still require the more stringent provisions of domestic law to be applied. C. THE REVISED DREDGED MATERIAL CRITERIA ALLOW THE OCEAN DUMPING OF SUBSTANCES THE DUMPING OF WHICH IS PROHIBITED BY THE CONVENTION, AS INCOR- PORATED BY REFERENCE INTO THE MPRSA Section 102(a) of the MPRSA, as amended by P.L. 93-254, 38 Stat. 50, March 22, 197^, requires the Administrator, "[t]o ;he extent that he may do so without relaxing the requirement of ;hls title . . , , In establishing or revising [ocean dumping] irlterla, [to] apply the standards and criteria binding on the Jnlted States under the Convention [on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,] Including H 263 ------- -22- its Annexes."1/ One of the most specific and significant provisions of the Convention is Its prohibition in Article IV(1)(a) of "the dumping of wastes or other matter listed In Annex I . . ."2/ Seven categories of substances appear on the Annex I list [the "black list" substances], including organohalogen compounds (e.g., DOT, PCBs), mercury and mercury compounds, cadmium and cadmium com- pounds, and oils "taken on board for the purpose of dumping."3/ Compounds In each of these categories are often found as contamin- ants in 3pol1 dredged from river and harbor bottoms, and spoil containing these contaminants Is often ocean-dumped. The blanket prohibition against the ocean dumping of Annex I substances is relaxed in only two narrow situations: (a) If the "substances . . , are rapidly rendered harmless" on contact with seawater (provided they do not render marine organisms unpalatable or endanger human or domestic animal health) (Paragraph 8); and (b) If the "wastes or other materials (e.g., sewage sludges and dredged spoils) contain[ ] the matters referred to ... as trace contaminants" (Paragraph 9) >i!/ 1/ The Convention was agreed to In London on November 13, 1972 and entered Into force on August 30, 1975 (after the required 15 latlons deposited their Instruments of ratification). The United States Senate gave its advice and consent to U.S. participation 3n August 3, 1973, and the U.S. deposited its Instrument of ratification on April 29, 197^. The United States Is, therefore, fully bound by the requirements of the Convention. \/ "[W]astes or other matter" is defined in Article IIICO to Include "material and substance of any kind, form or description." [¦here can be no doubt, therefore, that the Article IV prohibition igainst dumping of wastes containing Annex I substances extends to Iredged material. \J The four mentioned categories correspond to the materials listed In § 227.6(a) of the ocean dumping criteria. [/ Wastes exempted from the Annex I prohibition under Paragraph 8 >r 9 remain subject to the provisions of Annexes II and III. Ft 269 ------- -23- The original ocean dumping criteria (§ 227.22(e)) automatically consider the materials listed in revised § 227.6(a) (I.e., the Annex I substances) "as trace contaminants," "when they are present In sewage sludge, dredged material, or In wastes from Industries which do not use or produce the constituents identified in this section." This approach was so clearly unacceptable and so apparently not what the Trainers of the Convention had In mind, that the defendants have wisely abandoned it. EPA and COE have apparent- ly also come to recognize that the prohibition against dumping Annex I materials does, in fact, extend to dredged materials, and that neither dredged materials nor any other waste category is exempted across-the-board from this prohibition.1/ It remains for this Court to determine only whether or not the revised dredged material criteria, in fact, satisfy what the defendants now acknowledge to be a binding requirement of the Convention. As plaintiff shall demonstrate, the criteria do not properly Implement the Convention. The revised dredged material criteria fall short of compliance with the Convention's prohibition against ocean dumping dredged material containing Annex I substances in two significant respects: (1) Although it la COE, rather than EPA, which is responsible for approving the ocean dumping of all dredged material, the revised ocean dumping criteria prohibit only the approval "by EPA" of waste dumping Involving the substances prohibited by Article XV and Annex I of the Convention (see. § 227.6(a) of the revised criteria). No provision In the revised criteria or else- where prohibits approvals by the Corps of Engineers of the ocean lumping of dredged material containing these proscribed substances. 1/ Thus, Section 227.1(b) of the revised criteria includes § 227.6 (a) among the criteria said to be applicable to dredged material md which must be complied with for an applicant to be deemed to mye met the EPA criteria for dredged material. Similarly, § 227. 13(d) requires bioassay testing of dredged material containing i 227.6(a) constituents as other than trace contaminants. And, DEIS nowhere contends (see, e.g., DEIS, at 8, 36, 37, ^0-^5, re-83, 90, 120) that the Convention's prohibition against dumping innex I substances applies any less to dredged materials than to )ther wastes. w 270 ------- _2U_ (2) The revised criteria prohibit approval (by EPA) of the ocean dumping of substances proscribed by the Convention, as "other than trace contaminants," without anywhere defining "trace contaminants." Consequently, even if § 227.6(a) were reworded to include approvals by COE, the Convention's prohibition would re- main unenforceable and Incapable of implementation. In defense of Its failure to define "trace contaminants," EPA has contended (see the preamble to the revised ocean dumping regulations and criteria, 41 Fed. Reg. at 26645) that "defining a trace contaminant in numerical terms is scientifically impossible." Whether or not the inability to define something in "numerical terms," is sufficient justification for not defining it in any terms at all (plaintiff maintains that it is not), the revised criteria and the DEIS both demonstrate that it is, in fact, en- tirely possible to establish even a numerical definition (and a scientifically-supportable one) for "trace contaminants." Thus, the revised criteria and the DEIS together provide at least two bases for numerically defining trace contaminants. The first basis is set forth in Section 227.6(b) and is documented in great detail in the DEIS at 41-54. Thus, Section 227.6(b) sets forth explicit numerical limits for mercury and cadmium compounds present in both liquid and solid portions of ocean-dumped wastes. These Units are based on the assumption that a 50* increase above natural background levels in seawater and sediment (after appropriate allowances for Initial mixing) is not likely to adversely impact the environment. Section 227.6(b) also specifies procedures for establishing discharge limits for organohalogens and oil and grease, for which there are no natural background levels. No Justification has been given (and none is possible) for not employing the numerical limits of Section 227.6(b) to regulate the ocean dumping of dredged material — at least on an Interim basis — until EPA and COE can come up with limits they regard as more appropriate. ------- -25- The second Basis in the revised criteria and DEIS for numerically defining "trace contaminants," appears in the DEIS at pp. 40 and 73. The DEIS states (at kQ): A "trace contaminant" Is conceptually an impurity present In very small amounts, usually regarded as near the limits of detectability. A "trace contaminant" in a waste would, therefore, be a very small concentration of a material not regarded as a normal constituent of a waste. And (at 78): There is general agreement that a "trace contaminant" 13 a constituent present in a waste in very small quantity, usually near the limits of detectability by standard analytical methods." Standard methods „>xiefc for analyzing the metal content in solid and liquid wastes and information Is available to EPA (as reflected in the DEIS) on the natural background levels of mercury and cadmium In unpolluted marine sediments. Plaintiff Is at a loss, therefore, to understand why it Is "scientifically impossible" to define "trace contaminants" as any concentration of § 277.6(a) substances which can be detected In dredged material proposed for ocean dumping (or be detected above natural background levels, in the case of mercury and cadmium) by the use of approved analytical procedures. EPA, however, appears not to agree that the generally accepted definition of trace contaminant provides "an adequate sasls for regulatory purposes," because'the detectability of a constituent may have little bearing on its environmental Impact." (DEIS, at 78). In other words, EPA has reserved the right to ignore a legal prohibition against dumping toxic chemicals ir» detectable amounts, because it thinks toxicity rather than letectability is the appropriate criterion to employ. Plaintiff Is not aware of any principle of law which Ulows an administrative agency to ignore an explicit statutory ind treaty requirement merely because it disagrees with it. tt 272 ------- -26- In summary, plaintiff agrees with EPA (DEIS, at 20) that the Article IV and Annex I prohibition against ocean dumping Section 227.6(a) substances as other than trace contaminants, like other evaluation requirements of the MPRSA and the Convention, "must be turned Into specific criteria by which a permit application can either be approved or rejected," In failing to define "trace contaminants," as the term relates to dredged material, defendants have fallen to satisfy this requirement, and have failed to honor a mandatory legal prohibition. Plaintiff also agrees with EPA (DEIS, p. 136) that the dredged material criteria "must provide the same critical analyses that are prerequisite for review of permit applications for disposal of municipal and industrial wastes," Again, defendants have failed to satisfy thi3 requirement, by limiting the applica- bility of § 227.6(a) to "approvals by EPA," and by failing to justify the exclusion of approvals by COE. D. THE REVISED DREDGED MATERIAL CRITERIA ALLOW OCEAN DUMPING WITHOUT FULL PRIOR CONSIDERATION OF SOME OF THE EVALUATION FACTORS SPECIFIED IN THE MPRSA AND THE CONVENTION Section 103(b) of the MPRSA (read in conjunction with § 102(a)) requires the dredged material criteria to take account of seven statutory evaluation factors relating to ocean dumping effects and twenty-one (partially overlapping) evaluation factors under the Convention. The Defendants have also apparently abandoned their earlier contention that Section 102(a) obliges the Administrator merely to consider, in the course of developing criteria, but not actually H 273 ------- -27- to incorporate within the criteria themselves, the statutory evaluation factors. See, e.g., DEIS, at 16-10, 20, 29-31, 136.1/ Based upon a careful review of the revised regulations and criteria and of the DEIS prepared by EFA, plaintiff is Impelled to the conclusion that the revised dredged material criteria remain legally deficient under the MPRSA and the Convention in at least three respects. They fail to require proper dumpsite study and designation; they fail to take proper account of biological, ecological,and human health effects of ocean dumping; and they fail to properly address the long-term and cumulative effects of ocean dumping. 1. Failure to Require Prior Dumpsite Study and Use of EPA Designated Dumpsltea. Article IV(2) of the Convention requires that "[a]ny permit shall be issued only after . . . prior studies of the character- istics of the dumping site, as set forth in Section B and C of [Anne* III]." The revised dredged material criteria violate this requirement in that they fail to condition the approval of dredged material ocean dumping on prior dumpsite study.2/ Thus, Section 228.4(e) of the revised criteria specifies — contrary to the prior study requirement of the Convention — that "[~ ]lte selection will be made based on historic uses of the site" and on "historic knowledge" of disposal impacts in Blmilar areas. Similarly, contrary to the Convention's requirement that 1_/ Table I in the Draft Environmental Impact Statement (at 16-18), in fact, matches individual statutory and treaty evaluation requirements against the specific provisions of the revised ocean dumping criteria believed by EPA to address those requirements. 2/ Not only do the revised criteria fail to condition the approval of dredged material ocean dumping on prior dumpsite study, but they fail to take even the lesser step (taken by the revised criteria for non-dredged wastes) of allowing the use of unstudied existing sites only on an interim basis. Existing dredged material durapsites need neither be studied nor phased-out. H 274 ------- -28- duinpsltes be characterized in advance of dumping — as to water characteristics (Annex III (B)(6)), bottom characteristics, includ- ing biological productivity (Annex 111(B)(7)), and the effects of prior dumping activity, Including heavy metal background reading and organic carbon content (Annex III (B)(8)) — Section 228.1(e)(1) specifies that baseline study requirements can be deferred until the results of ongoing and future research are available. Although Section 228.4(e) does state that "[s]tudies for the evaluation and potential selection of dumping sites will be conducted [subject to six listed exceptions] In accordance with the requirements of §§ 228.5 and 228.6(a)," nothing in the revised dredged material criteria requires such studies to be performed on existing dumping sites. Since (unlike the criteria applicable to non-dredged wastes) nothing in the revised criteria places a deadline on the continued use of unstudied existing dredged material dumpsites, the COE is left free to continue indefinitely approving the ocean dumping of dredged material at unstudied and unevaluated disposal sites. Indeed, formal termination of unstudied dredged material dumpsites seems all but precluded by the revised criteria. Section 228.5(c) provides for termination of dumpslte use only during or after site evaluation studies, and only for sites presently approved on an Interim aasis. Since the revised criteria do not require "site evaluation studies" for dredged material sites within any set period of tine. If ever, and since existing dredged material sites are nowhere Siven interim approval under the revised criteria, use of dredged naterlal sites need never — and for that matter, may never — be terminated. The continued granting of ocean dumping approvals by the Jorps of Engineers, as authorized and encouraged by the revised :riterla in the absence of prior dumpslte studies, Is plainly Inconsistent with and in violation of Article IV(2) and Annex III 'B) of the Convention. H 275 ------- -29- The site designation procedures of the revised criteria also violate a requirement of the MPRSA. Thus, Section 103(b) of the MPRSA requires that, In selecting sites for disposal of dredged material, the Secretary of the Army "shall, to the extent feasible, utilize the recommended sites designated by the Administrator . . . ." The revised dredged material criteria contain no such requirement,!/ In addition, despite the MPRSA's vesting of authority in the EPA Administrator and the EPA Administrator alone (Section 102(c)) to "designate recommended sites or times for dumping." and despite great attention In the revised criteria make no provision whatever for dredged material dumpsite designation by EPA.2/ 1_/ Instead, the revised ocean dumping criteria shift the initia- tive to the Corps of Engineers. Section 225.2(a) requires the District Engineer to include In public notices sent to the EPA Regional Administrator, "[a] statement as to whether the site has been designated for use by the Administrator," and, if not, "a statement of the basis for the proposed determination that no designated site is feasible . . . Under this approach, the Corps both proposes and disposes. 2/ Which agency does the designating of sites has important legal and practical consequences. Thus, Section 102(a)(1) of the MPRSA specifies that, in designating recommended ocean dumpsites, "the Administrator shall utilize wherever feasible locations beyond the edge of the Continental Shelf." (Emphasis added). If someone other than the Administrator does the designating, this requirement evaporates. (Indeed, the absence of any discernible legislative Intent to exempt dredged material from this requirement, is itself strong evidence that Congress intended that it Is the Administrator who Is to do the designating). A further legal consequence of allowing the Corps of Engineers, rather than EPA, to designate dredged material dumpsites is a diminished application of the National Environmental Policy Act ["NEPA"]. Thus, under EPA's May T, 1974, "Statement of Policy" on preparing environmental impact statements, EPA commits Itself to preparing environmental Impact statements in connection with all "designation of sites for dumping under section 102(a) [of the MPRSA]." If another agency (i.e., COE) does the designating, this commitment likewise evaporates. All that remains, is the far weaker provision of Section 227.8(e) which allows a "joint environmental Impact assess- ment" (not even Impact "statement") to be prepared for "all sites within & particular geographic area" based on studies of a typical site or sites in that area. From a practical standpoint, it stands to reason that EPA's review of dumpsite suitability would be more searching and detailed if it were doing the designating than if all it did was review stacks of public notices prepared by another agency. H 276 ------- -30- 2* Fallure to Adequately Consider Biological, Ecological, and Hunan Health Effects. The revised dredged material criteria fall to require full consideration of the wide range of factors relating to the effects, of ocean dumping on human health and marine ecosystems, as required by the Convention and the MPRSA. Section 102(a) of the MPRSA requires. Inter alia, that, In evaluating proposals to ocean-dump both dredged and non-dredged materials, consideration be given to effects "on human health" (Par. (B)), effects on fisheries resources and various marine species (Par. (C)), and effects "on marine ecosystems," Including biological concentration and transfer, and changes In ecosystem and community structure and function (Par. (D)). The Convention (Annex III) Imposes parallel requirements. For example, It requires that 'account be taken of biological properties, such as the "presence of viruses, bacteria, yeasts, parasites" (Par. (A)(3)), "toxicity" (Par. (A) (<»)), »[a]ccumulatlon and biotransformation In biological materials or sediments" (Par. (A)(6)), and "[p]osslble effects on marine life" (Far. (C)(2)). Table I In the DEIS (at 16-18), Identifies the provisions of the revised criteria on which EPA relies to satisfy the Indicated evaluation requirements of the MPRSA and the Convention. Neither the provisions relied upon by EPA nor any other provisions In the revised criteria adequately take Into account the Indicated evaluation requirements of the MPRSA and the Convention. For example, heavy reliance is placed upon the Subpart B criteria (notably, Section 227.13), for meeting the evaluation requirements of MPRSA Sections 102(a)(B) (effects on human health ind welfare), 102(a)(C) (effects on fisheries resources, plankton, fish, shellfish, wildlife), and 102(a)(D) (effects on marine scosystems, particularly with respect to potential changes in ^ecoystems and community structure and function). This reliance Is misDlaced, because the orocedures specified by Section 227.13 for leterralng the environmental acceptability of dredged material H 277 ------- -31- dumping are oriented toward compliano with "appropriate water quality criteria" (DEIS, at 137). Toxicity and food chain contamination which may result from direct contact by bottom- dwelling and filter-feeding organisms with suspended and settled polluted dredged material, and which could not be detected by monitoring changes in water quality, are totally unaddressed by Section 227,13. Subpart B and Section 227.13 are similarly deficient in addressing the toxicity and accumulation and biotransformation concerns of Convention Annex 111(A)(1)) and (A)(6). Bioassay tests, even if required to be applied conslntently to all ocean-dumped dredged material, would not satisfy the Convention's concerns about bloaccumulation. DEIS, at 26-27; see also. Lee and Plumb, 197^, at 50.1/ And, (at least short-term) bioassays will not sufficiently assess the potential for biological transformations of harmless dredged material constituents into harmful ones — trans- formations which occur more rapidly (at least for the microbial methylation of sediment-bound mercury) when the dredged material is in suspension (as would be true under dumping conditions), Lee and Plumb, 1971*, at 111, supra, n.l. Finally, Convention Annex III, Paragraphs (A)(3) (biologica: properties of waste, Including presence of viruses, bacteria) and (C)(2) (possible effects on marine life) are inadequately taken account of by the revised dredged material criteria. Thus, no applicable provision of the revised criteria deals with the possible presence of pathogenic organisms in terms of their human health, ecological, or biological effects (as opposed to their esthetic, recreational and economic impacts). And, no applicable 1/ G.P. Lee and R.H. Plumb, Literature Review on Research Study for the Development of Dredged Material Disposal Criteria 19, Sponsored by and prepared Prepared for Office of Dredged Material Research, U.S. Army Engineer Waterways Experiment Station, DMRP Contract Report D-7"-l (June 1971) R278 ------- -32- criteria provision considers impacts on marine life for its own sake and in terms of the ecological balance (as opposed to the bearing of marine life impacts on man's exploitation of marine resources). 3. Failure to Adequately Consider Long-Term and Cumulative Effects. The revised dredged material criteria also fail to require full consideration of the wide range of factors relating to the long-term and cumulative effects of ocean dumping, as required by the Convention and the MPRSA. Section 102(a) of the MPRSA requires, inter alia, that, in evaluating proposals to ocean-dump both dredged and non-dredged wastes, consideration be given to "transfer, concentralon, and dispersion . . . through biological, physical, and chemical processes" (Par. (D)(1)), "persistence and permanence" of dumping effects (Par. (E)), and the "effect of dumping particular volumes and concentrations"(Par. (F)). Parallel requirements are imposed by Annex III of the Convention. Among the considerations required to be taken into account by the Convention are total quantites of material dumped over various time intervals (Par. (A)(1)), physical, chemical and biological persistence (Par. (A)(5)), "[accumulation and biotransformation in biological materials or sediments" (Par. (A)(6)), susceptibility to change and Interaction in the aquatic environment with other dissolved subBtances (Par. (A)(7)), "Mate of disposal per specific period" (Par. (B)(2)), and "[e]xlstence and effects of other dumpings which have been made in the dumping area" (Par. (B)(8)). Table I in the DEIS (at 16-18) tabulates the provisions of the revised criteria upon which EPA relies to satisfy the indicated evaluation requirements of the Convention and the MPRSA. Neither the provisions relied upon by EPA nor any other provisions in the revised criteria adequately take into account the indicated evaluation requirements of the MPRSA and the Convention. Li 970 ------- -33- The revised dredged material criteria fail utterly to take into account — the persistence and permanence of dumping particular volumes and concentrations (MPRSA § 102(a)(F)), total amounts dumped over a given period of time (Convention Annex III (A)(1)), physical, chemical, and biological persistence (Convention Annex 111(A)(5)), accumulation in biological materials or sediments (Convention Annex 111(A)(6)), susceptibility to changes and interaction with other dissolved substances (Convention Anne* 111(B)(2)), and existence and effects of other dumpings which have been made in the dumping area (Convention Annex 111(B)(8)) — as required by the MPRSA and the Convention. Thus, the elutriate and bioassay procedures of Section 227.13 measure only short-term effects and have no predictive value for the long-term; they also view each barge load and dumping activity in isolation from one another. Only effects which cumulate to violate "applicable water quality criteria" (§§ 227.13(d), 227.27 (a)(3)) stand any chance of being considered under the revised criteria.1/ Neither the MPRSA nor the Convention permits impact evaluations to be limited in this way to effects on water quality alone. 1/ EPA, in its DEIS, has acknowledged some of the revised criteria': shortcomings in assessing long-term and cumulative dumping Impacts: (a) bloassays do not measure the potential for bloaecumulation effects (at 26-27); (b) the long-term environmental impact poten- tial of toxic constltutents of solid materials is much greater than the immediate toxic effect as a result of consumption and transformation by benthlc biota (at 48); (c) bloassays give no measure of potential long-range chronic effects (at 57); (d) if there is a concentration build-up from successive dumps, management of the disposal site becomes more complicated than provided Cor in the criteria (at 83): (e) the criteria do not consider the ever-present possibility that there may be chronic effects due to the buildup of waste constituents in water, sediment, or biota, even though there may be no detectable effects within 4 hours (at 110); and (f) the proposed criteria are adequate to protect against acute effects only (at 1^1-1*42). Studies done for COE (Lee and Plumb, 197*), supra, at 31 , n.l) point out 30me of the shortcomings In the "elutriate test11" procedure of § 227.13(c): (a) it does not differentiate between large versus small volumes of dredged material or large versus small volumes of receiving water (at 10-11); (b) It measures only short-term leaching of contaminants into the water (at 31); (c) it is meaningful only if used together with information about existing water quality at the dumpsite (at It); (d) it tells nothing about the possibility of biological uptake and food-chain concentration and transfer or contaminants, which may be adverse to fish feeding (footnote continued on next page) H' 280 ------- -31)- With respect to marine ecosystem effects associated with biological, physical, and chemical transfer £tnd concentration processes (required to be considered by MPRSA § 102(a)(D}}, the revised dredged material criteria are deficient for a similar reason. Although the "elutriate test" of § 227,13(c) considers physical transfer of contaminants from dredged material to the surrounding water, it ignores direct transfers to marine organisms and indirect transfers to marine organisms by way of chemical and biological transformations. Also Ignored are physical and biological concentration processes which may offset dilution and dispersion and maintain toxicity at a high level. In short, while the proposed revised dredged material criteria come somewhat closer to compliance overall with the evaluation requirements of the MPRSA and the Convention (e.g., In addressing dumping effects on esthetic, recreational, and economic values, and on other uses of the ocean), they remain deficient in the procedures they establish or fall to establish for the study and designation of dumpsites, and for assessing unreasonable degradation and endangerment involving human health, marine eco- system, and biological effects of ocean dumping, and involving long-term and cumulative dumping effects, generally. (footnote continued) on benthic organisms and to man (at 50, llU); and (e) it may under- state the transfer of contaminants from dredged material into the surrounding water resulting from the complexing of heavy metals with chlorides in seaw&ter (at 112), complexlng with seawater organic matter (id.), cycling through aquatic plants (at 113), Increased surface area for leaching through burrowing by benthic fauna (id.), microbial transformations (at ll3-lli|), and mobiliz- ation where freshwater dredged material is ccean-dunped (at 118- H 281 ------- #42 Additional comments received from National Wildlife Federation (NWF), Washington, D.C. See response to NWF, #3. H 282 ------- MANUFACTURING CHEMISTS ASSOCIATION 1B25 CONNECTICUT AVENUE, N. W. WASHINGTON, D. C, 20009 {202) 483-6126 ALBERT C. CLARK VICE PRESIDENT TECHNICAL DIRECTOR September 22, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Material Control Division (WH548) U.S. Environmental Protection Agency 401 M Street S.W. Washington, D. C. 20460 Subject; Proposed Revisions of Regulations and Criteria Concerning Ocean Dumping Dear Mr. Wastler; In the Federal Register of June 18, 1976, the Environmental Protection Agency published proposals for revising regulations and criteria applicable to the ocean dumping of wastes under the Marine Protection Research and Sanctuaries Act of 1972, as amended. Ocean dumping is a subject of considerable interest to municipalities and industry, especially the chemical industry. The Manufacturing Chemists Association (MCA) is a nonprofit trade association having 188 United States company members representing more than 90% of the production capacity of basic industrial chemicals within this country. Our members have more than 1600 plants located in nearly every state for the manufacture of chemicals. Many of these have long utilized ocean dumping as an environmentally sound option for disposal of certain industrial wastes. Herewith are MCA's comments on the proposals for maintaining ocean dumping under appropriate controls. H 283 ------- -2- The preamble indicates that these revisions meet "a need to specify in more detail the considerations which go into (determining) whether a permit will be issued". This is reasonable as is the later statement that the "criteria have been modified to reflect recent advances in scientific knowledge". Unfortunately, this open-minded assertion is negated by the following indication of "EPA1s intent to eliminate ocean dumping of unacceptable materials as rapidly as possible". Further on, reference is made to the general criterion of producing "no detectable changes in biota". There are no qualifications as to the degree of acceptability of such changes, or their desirability. This arbitrary position is reflected in the following sections: 1. Section 220.3(d) would curtail ocean dumping by prohibiting the issuance of new permits after April 23, 1978 except for those municipalities then holding a permit and those industries holding permits and having land-based treatment plants under construction. Such a prohibition on the issuance of interim permits after April 23, 1978 seems contrary to the policy of Congress stated in section 2 of P.L. 92-532, the Marine Protection Research and Sanctuaries Act of 1972. The policy is clearly one of control by regu- lation, not prohibition. The National Research Council has recently concluded that with appropriate care and continuing study, the ocean may be an attractive sink for some industrial residues. There should be provision for carefully controlled and limited issue of new interim permits anticipating a gradual reduction consistent with the developing state of technology, but not an abrupt and arbitrary termination. 2. It is reasonable to require certain factors to be considered in determining the need for ocean dumping. Section 227.15 enumerates several such factors, including "raw materials and manufacturing or other processes resulting in waste and whether or not these materials are essential to the provision of the applicant's goods or services or if other less polluting materials or processes could be used". A literal application of the authority implied here could result in the Administrator specifying which raw material or processes may be used in manufacturing any given product. This kind of intrusion into H 284 ------- -3- manufacturing options is a serious abridgement of producers' rights in freedom of selection within their lines of business. It is clearly recognized that EPA is charged with controlling industrial releases into the environment. However, such a directive does not authorize EPA to dictate how products shall be made. These options should remain open to producers. 3. In both section 221(j) and section 227.15(c)(7) it is noted that "storage" is one of the factors that is to be considered in the need for ocean dumping. Except in a few special situations, the storage of wastes must not be regarded as a viable disposal method for either short- or long-term basis. Local, state and federal statutes and regulations concerning the storage of all materials are proliferating at a very rapid pace, greatly increasing the difficulty and costs of finding suitable storage for all materials including wastes which may be safely barged to sea for environmentally safe disposal. 4. Section 228,13 is entitled "Guidelines for Ocean Disposal Site Baseline and Trend Assessment Surveys". In fact this section goes far beyond such directions to specify overly-prescriptive requirements. Such narrow prescription must result in precise specification of survey routes. Among the drawbacks inherent in this approach are inflexibility and serious discouragement of technological advance. Far better would be a set of survey guidelines put together in terms of objectives. There remain many materials and situations where ocean dumping is the best means of disposal and where ocean disposal overall will have the least objectionable environ- mental impact. Ocean dumping must not be excluded as a viable means of disposal. Sincerely, tf 265 ------- #43 Response to comments received from the Manufacturing Chemists Association, Washington, D. C. 1. 220. 3(d) - The EPA response to these comments is presented in the Preamble. 2. 227. 15 - These criteria deal only with ocean dumping. When a waste does not meet the criteria for ocean dumping, it is within the scope of these regulations to require a very detailed examination of the sources of the waste and the causes for its not meeting criteria to detemine whether or not there is a sufficient need for dumping to justify the issuance of an interim permit. 3. 221. (j) and 227. 15(c)(7) - We agree that storage is not a viable long-term alternative. However, it can be quite useful as a short- term alternative when it is necessary to develop new treatment facilities. 4. 228. 13 - We do not believe that the guidelines presented in this section are overly prescriptive, nor do we believe that having these guidelines discourages technological advancement. Certainly a number of new sampling techniques and approaches could be used as they are developed. The guidelines are presented here are intended to provide a basic set of guidelines for baseline surveys, and not inflexibly determine exactly what should be done in every case. H 2SG ------- , |w LtcJue of Women Voters of the United States ¦ 1730 M St.. NW. Washington, D.C. 20036 (202) 296-1770: September 23, 1976 Mr. T. A. Mastler, Chief Marine Protection Branch (WH-548) U.S. Environmental Protection Agency 401 M Street, SW Washington, DC 20460 Dear Mr. Wastler: The League of Women Voters of the United States has long supported national policies to preserve and protect our valuable natural resources. League mem- bers are aware that although oceans serve as our most productive resource, they also serve as the final receptacle for all water-borne pollutants, receiving the waste load of polluted Inland waters as well as the discharge from outfall pipes and direct dumping of waste materials from vessels. Since the passage of the Marine Protection, Research and Sanctuaries Act (MPRSA) in 1972, the League has followed with great interest the Environmental Protection Agency's progress in promulgating regulations to prevent and/or limit the dumping of hazardous wastes into,the oceans. It is within that context that the following comments on the proposed revision of the regula- tions and criteria on ocean dumping are submitted. Part 220 Section 220.3(d) Interim ocean dumping permits We commend EPA for prohibiting the issuance of interim permits to facilities which have never before dumped wastes in the ocean,to new facilities,or to modified or expanded facilities. This provision will be particularly effec- tive in protecting the ocean environment from increased dumping of municipal sewage sludge. We support the establishment of a cut-off date {April 23, 1978) for the issu- ance of interim permits. The assumed purpose of the interim permit deadline-- to phase out ocean dumping of harmful or potentially harmful wastes—may be negated, however, by the number of waste materials that could possibly be exempted from compliance. It should be made clear in this section that EPA, and not the applicant, will decide between phasing out and compliance with the environmental impact criteria established under the regulations. We urge the agency, in implementing the regulations after they are finalized, to strictly enforce subsection (2)1s requirement that a facility granted an Y '^RESIDENT ^^^fUTHC-CLUSEN OFFICERS Vice Presidents R-jlhj Hinerfeld LofChmonl. New vork Kan F Waterman Muscatine, iowa Secretory KayFeias Monstieid Criio Itaosurar VvonneG Sees DIRECTORS _ean(? AixJew Billings Montana Connie fortune • Washington D C M Joanne Hayes Judith M Head ColumDus Indiana JuQi'nB Heirnann 3etnesda Voylana Betty N MacOoraia Bridgetcn Missouri Pougnkeepsie New vork _ Madison Wisconsin rt* 287 A MOllyO EXECUTIVE DIRECTOR Peggy lamp! ------- Mr. T. A. Wastler -2- September 23, 1976 extension from the 1978 deadline will indeed be able to phase out or modify the nature of its wastes to meet the criteria by 1981. Recognizing that the two major dumpers of sewage sludge—New York and Philadelphia—are now under sched- ules to end dumping by 1981, we also encourage stringent adherence to this timetable. Part 222 Section 222.3 Notice of application We commend EPA for expanding its public notification efforts on the different categories of ocean dumping permits, including the publication of a summary of information contained in permit applications, an explanation of the factors considered in reaching tentative determination and procedures regarding pub- lic hearings. This provision will increase the information available to the public and enable it to better participate in the decision making process. Part 223 Section 223.2(a)(3) Modification, revocation or suspension of permits We endorse the review of permit issuance with consideration to the total and cumulative environmental effects of waste dumping on particular disposal sites. Part 227 Section 227.6 Definition of trace contaminants The failure to define "trace contaminants" makes enforcement of these provisions a farce. We suggest using the numerical limits established in Section 227.6(b) for these substances as a starting point for determining trace contaminant levels. We recommend that Section 227.6(a)(5) be expanded to include mutagens and ter- atogens in addition to carcinogens. Four-hour dilution time period We question the presumption that degradation and endangerment which occurs within four hours after disposal is permissible and in accord with the intent of the MPRSA and the Convention on the Prevention of Marine Pollution's pro- visions. Any firm, initial mixing period fails to take into account the length of time required during an actual dumping process and the overlapping of dump- ing activities at given disposal sites. Taking these factors into consider- ation could conceivably double or triple the "safe" period, rendering the time period restriction both impossible to enforce and inadequate as a safe- guard. We suggest that further clarification be made as to the selection and use of this seemingly arbitrary four-hour period. Criteria applicable to dredged materials We commend EPA for its attempts to improve the criteria for dredged materials by no longer using the terms "polluted" and "nonpolluted" to differentiate between acceptable and unacceptable dredged materials for ocean dumping. In light of the following comments, however, we feel that more progress can be made in strengthening these criteria. We question the establishment of different (and seemingly more lenient) stan- dards for regulating dredged materials than for non-dredged materials. Oredged materials should be made subject to the prohibition against dumping those con- stituents listed in Section 227.6(a) as other than trace contaminants. Correc- ting this would mean adding "and the Corps of Engineers" after "EPA" to H 260 ------- Mr. T. A. Wastler -3- September 23, 1976 Section 227.6(a). In reference to Section 227.13(b), criteria for the issuance of ocean dumping permits for dredged materials should include requirements for what is considered unacceptable as well as acceptable. The criteria falsely assume that "acceptable" dredged materials are automatically safe for ocean dumping. Even unpolluted dredged materials can create adverse environmental effects if too much is dumped or if they are dumped at an inappropriate site. Such action could seriously impair photosynthetic processes and alter indigenous bottom-dwelling organ- isms, as well as cause immediate suffocation of marine life. By including "unacceptable" criteria, the burden of proof would be shifted from allowing all dumping not shown to be harmful (the intent under the present section) to prohibiting all dumping not shown to be safe. Finally, equivalent evaluative standards should be applied to dredged materials and to non-dredged wastes in determining their dumping impacts on the environ- ment. The MPRSA states in Section 103(a) of Title I that "the Secretary may issue permits...where the Secretary determines that the dumping will not unreason- ably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." The use of water quality as the single criteria for evaluating the dumping effects of dredged materials only partially fulfills this MPRSA requirement. Section 227.1(b) should be revised to require that dredged material dumpers comply with aJQ_ applicable provisions of the criteria. Section 227,17 Attention to aesthetic values We support the attention given to aesthetic values in determining the impacts of ocean dumping. Section 227.27 Bioassay requirements We commend EPA for improving the bioassay requirements, providing a more rep- resentative sampling of sensitive marine organisms for testing. This will lead to more accurate test results and hopefully minimize the adverse impacts of dumping on marine life at disposal sites. We appreciate the opportunity to comnent and submit suggestions on this revision of the ocean dumping regulations and look forward with interest to EPA's prom- ulgation of the final regulations. Sincerely, Jean Anderson Chairman, Environmental Quality Committee H 263 ------- #44 Response to comments received from the League of Women Voters, Washington, D. C. Section 220. 3(d) - Responses to comments on this section are included in the Preamble. Section 222. 3(d) - Responses to comments on this section are included in the Preamble. Section 223.2(a)(3) - Part 223 will be revised in the future, and this comment will be addressed at that time. Section 227. 6 - This section has been redrafted in response to the comments received. Four-hour dilution time period - The MPRSA does not address the question of initial mixing. The Convention addresses it only by mentioning that there are certain materials which may be rapidly rendered harmless by chemical, physical, or biological processes in the sea. There is no evidence to suggest that the approach taken in the regulations is in violation of either the MPRSA or the Ocean Dumping Convention. A choice of four hours allowance for initial mixing was made when the regulations were first published in October 15, 1973. Since that time, no responsible scientist has offered any evidence that this is a poor assumption. From a prac- tical standpoint, we have included in the regulation a provision that if reasonable scientific evidence is presented to indicate that a different approach toward initial mixing is appropriate, it can be U 290 ------- 2 used with the acceptance of EPA. We recognize the fact that the four-hour time period for initial mixing is essentially a judgmental factor and could be regarded as arbitrary. However, there is no scientific evidence on one side or the other to suggest that one hour is better, or that 24 or 48 hours are more reasonable. The four- hour factor is based on diffusion phenomena in marine waters ob- served by EPA scientists. There is no scientific documentation that this is good, bad or ndifferent. We recognize that in dumping any material into the ocean some damage will occur during the period of initial mixing. This occurs in any part of the environment whenever you dispose of any waste; it happens on land, it happens when materials are put into the air. The concept of initial mixing is not unique to the ocean dumping program-- it appears in the water quality criteria document and it is used in the implementation of the NPDES permit system. Neither the MPESA nor the Ocean Dumping Convention place any specific strictures on how initial mixing shall be used, but we do believe that it is reasonable to make an initial allowance for mixing processes shortly after dumping that would bring the levels of toxic constituents down to levels where they would not be a danger to the marine environment. The extent of damage that is likely to occur within the period of initial mixing is certainly far less than would occur in the ninety-six hour time period of which bioassays are normally run. We believe statements in the EIS are quite accurate with regard to initial mixing and the damage that is likely V* 281 ------- #44 3 to occur during that initial period, and that the National Wildlife Federation comments regarding damage that could occur during the first hour as representing a very substantial danger to the marine environnment are a gross exaggeration of the actual situation, and are not supported by any scientific rationale. The statement quoted from the EPA Assistant Administrator for Research and Develop- ment that diffusion phenomenon provide adequate protectionn only for materials known not to accumulate is accurate. The LPC is de- signed to take care of such materials. Those materials which are known to bioaccumulate are prohibited as other than trace contami- nants and the appropriate criteria are set in section 227. 6. Criteria applicable to dredged materials - The same criteria are now applied to both the dredged material and to other materials. Section 227. 17 - We are pleased to see that the EPA position is being supported in this case. rt 292 ------- RICHABO i, MARLAND, PH.D. DBECTOB TELEPHONE NO. 54M915 STATE OF HAWAII OFFICE OF ENVIRONMENTAL QUALITY CONTROL OFFICE OF THE GOVERNOR MOHM.EKAUWILAST. ROOM 301 HONOtULU. HAWAII 96613 September 21, 1976 QiORQE R. AfllYOSHI OOVERNOR Mr. T. A. Wastler, Chief Marine Protection Branch (WH-548) Oil and Special Materials Control Division Environmental Protection Agency 401 M St. S.W. Washington, D.C. 20460 Dear Mr. Wastler, Officials from both the State of Hawaii and the City and County of Honolulu have reviewed the Proposed Revisions of Regulations and Criteria related to Ocean Dumping (40 CFR Parts 220 through 229), as published in the Federal Register of June 28, 1976. We have no objections to these proposed revisions. Indeed, we favor their adoption as presented and so recommend. eryjtruly yours ichard E. Marland Director cc; James Kumagai, Dept. of Doak Cox, Environmental Kazu Hayashida, Dept. o Health Center, University of Hawaii ! Public Works H 2 83 ------- #45 Comments received from State of Hawaii, Office of Environmental Quality Control, Honolulu, Hawaii. No response necessary. a rc r ------- University of New Hampshire College of Engineering and Physical Sciences September 22, 1976 Mr. T, A. Wastier Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D, C. 20460 Dear Mr. Wastler; Thank you for the copy of the Draft Environmental Impact Statement for the Ocean Dumping Criteria. First several general comments. I have read the National Wildlife Federations analysis of the DEIS (August 13, 1976) and agree with most of their points. They are in general, valuable and should be carefully considered by the EPA. The DEIS should be more willing to admit that some of the methods are not very good, but are the best presently available. This particularly applies to the elutriate test. The following comments include those supplied to me by Dr. C.L. Grant, Chairman, Department of Chemistry at UNH who has had considerable experience with trace metals in sediments and the elutriate test. Certainly the elutriate test has not been considerably improved if only water at the dredge site Is used in the extraction. If dredging and dumping are to occur in water with different salinities than the elutriate test should be run on both water types since there will be different impacts on each area. This is often the case where estuarine or river waters are dredged and spoils dumped in coastal ocean waters. The proposed rules suggest that the impact is only in the dredge area and not the disposal area. There are limited guidelines on details for conducting the elutriate test. For example, release and/or adsorption of trace metals will be very different for the sediments depending on whether or not they were initially anoxic and allowed to oxidize during storage or the reverse. In some cases, metals such as zinc may be removed from the dredge site supernatent perhaps due to precipitation - adsorption reactions, even though there were substantial levels of the zinc in the sample. Department of Earth Sciences James Hall Durham, New Hampshire 03824 (603) 862-1718 M 295 ------- Mr, T. A. Wastier September 22, 1976 Page 2 The relationship between values obtained in the elutriate test for a given compound may not be meaningful relative to the Limiting Permissible Concentration since the forms of the compounds or metals are not defined in the same manner as used for the LPC determination. I agree with the DEIS that bulk analysis of sediments give little information on over all impact of spoils dumping. However, I do feel that the impact of this spoils material comes from more than what is released in the elutriate test and, thus solid or suspended material bioassays should be used as well. Finally, the bioassay tests used appear to ignore the short-term, less than four hours, exposure to high levels of pollutants present in the dumped material. Perhaps the DEIS should state that they do not know the impact during this time period, but it is safe to assume that some organisms will be killed during this initial dumping phase. Thank you for your consideration. Sine yours, Theodore C. Loder Assistant Professor Department of Earth Sciences cc; Mr. Kenneth S. Kamlet TCL:las H 296 ------- #46 Responses to comments received from the University of New Hampshire. The basis for testing of dredged material has been expanded to include suspended particulate and solid phase bioassays as mandatory procedures in many cases. The other commments are addressed in the responses to comments by the National Wildlife Federation, #3. h 297 ------- V TXAGRIDEPT AUS * 30- 2*# EPA WSH 0 • EPA WSH WU WSH TLXA102 WAA1 12(1042X2-0 1 67 72E267 )PD 09/23/76 1041 185 « 80.. 5"" J '0 5163714600 TDMT ATLANTIC BEACH 22 0 9-23 1041A EST PMS MB KENNETH BIGLANE DIRECTOR OIL AND SPECIAL MATERIALS ENVIRONMENT AL PROTECTION AGENCY# DLR 401 M ST NORTHWEST WASH DC 20460 ATLANTIC BEACH NEW YORK ENDORSES THE COMMENTS OF THE NATIONAL WILDLIFE FEDERATION ON THE EPA REVISED OCEAN DUMPING CRITERIA ON DREDGE SPOILS FEED RUDIN DEPUTY MAYOR VILLAGE OF ATLANTIC BEACH NY 11509 1238A EDT H 299 ------- #4? Responses to comments received from Atlantic Beach, New York. See responses to comments by the National Wildlife Federation, #3. 300 ------- COMMENTS UPON PROPOSED REVISIONS OP REGULATIONS AND CRITERIA UNDER THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972 SUBMITTED BY CITY OF PHILADELPHIA WATER DEPARTMENT CARMEN F. GUARINO, Commissioner 1180 Municipal Services Building Philadelphia, PA. 19107 301 ------- TABLE OF CONTENTS Page GENERAL COMMENTS ..... 2 (1) Ambivalence of Regulatory Attitude ..... 4 (2) Bifurcation of Rulemaking for Ocean Disposal by Dumping and By Outfall 6 (3) Application of Different Standards to Ocean Disposal of Dredged Materials ..... 8 SPECIFIC COMMENTS 9 SPECIFIC PROPOSED REVISIONS: PART 220 — PROPOSED REVISION: § 220.3 Categories of Permits 10 PART 222 — PROPOSED REVISION: § 222.6 Presiding Officer ......... 13 S 222.8 Recommendations of Presiding Officer 15 § 222.11 Conduct of Adjudicatory Hearings .... 16 S 222.12 Appeal to Administrator 21 PART 223 — PROPOSED REVISION: § 223.2 Modification, Revocation and Suspension 22 PART 227 — PROPOSED REVISION: § 227.2 Materials Which Satisfy the Environ- mental Impact Criteria of Subpart B 23 § 227.6 Constituents Prohibited As Other Than Trace Contaminants 24 # 302 ------- (ii) Page PART 227 -- PROPOSED REVISION: (cont'd) § 227,7 Limits Established for Specific Waste or Waste Constituents 36 § 227.10 Hazards to Fishing, Navigation, Shorelines or Beaches . 37 § 227.15 Factors Considered .... 38 § 227.16 Basis for Determination of Need for Ocean Dumping 39 § 227.17 Basis for Determination . 40 § 227.18 Factors Considered 41 § 227.19 Assessment of Impact ........ 42 § 227.27 Limiting Permissible Concentra- tion (LPC) . 43 § 227.29 initial Short Term Mixing 44 PART 228 — PROPOSED REVISION: § 228.2 Definitions . 53 § 228.9 Disposal Site Monitoring ....... 54 § 228.10 Evaluating Disposal Impact ...... 55 § 228.11 Modificaiton in Disposal Site Use .... 58 § 228.13 Guidelines for Ocean Disposal Site Baseline and Trend Assessment Surveys Under Seciton 102 of the Act 59 APPENDIX A Comments by Raytheon Oceanograph5.c & Environmental Services Division Regarding fclutriate Test for Dredged Spoxls Al APPENDIX B Summary of Toxicity Information for Cadmium and Inorganic Mercury Bl APPENDIX C Bibliographic References ....... CI 303 ------- COMMENTS UPON PROPOSED REVISIONS OF REGULATIONS AND CRITERIA UNDER THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972 SUBMITTED BY CITY OF PHILADELPHIA WATER DEPARTMENT The City of Philadelphia has a number of comments and suggested changes to the Environmental Protection Agency's proposed revisions of the regulations and criteria issued under the Marine Protection, Research, and Sancturies Act of 1972. 41 Fed. Reg. 26644 (June 28, 1976). By and large, the City believes that the Agency will find that comments and suggestions directed toward specific proposed regulations and criteria will be most helpful. The large bulk of the City's comments are accordingly in the form of specific suggested revisions to the language of particular regulations and criteria, each of which is accompanied by an explanatory comment. M 304 ------- - 2 - In a few instances, however, tba City's comments sweep across such a wide number of the EPA proposed revisions that this approach is not feasible. These general comments are set forth briefly at the outset. The comments upon the suggested revisions to the Criteria contained in Parts 227 and 228 are the result of an analysis of the EPA Proposed Criteria by the Oceanographic & Environmental Services division of the Raytheon Company. A technical Appendix A is also appended to these comments setting forth a review by the Raytheon of the literature on the elutriate test for dredge spoils. GENERAL COMMENTS The City of Philadelphia Water Department agrees that substantial revisions to the regulations and criteria issued under the Marine Protection, Research, and Sanctuaries Act of 1972 (henceforth "the Act") are appropriate and indeed necessary at this time. The initial regulations issued immediately follow- ing passage of the Act represented an effort by the Agency at that time to provide for the implementation of this important statute. Experience since that time has revealed the need for more refined techniques for dealing with recurring problems under the Act. Both procedurally and substantively, enough experience is now available to allow a much more detailed codi- fication of requirements and standards to be applied than was possible in 1973. H 305 ------- - 3 - Despite its broad agreement with the need for substan- tial revisions to the regulations and criteria, the City of Philadelphia has substantial differences with a number of the proposals and with certain aspects of the basic philosophy underlying these proposals. The City's basic differences with the policy orientation of the proposed revisions, which will 1/ be taken up first, are threefold: (1) The ambivalence reflected in the proposed revisions between (i) seeking the most environmentally suitable and practicably feasible method of waste dis- posal (an approach to which the City of Philadelphia subscribes), and (ii) attempting to embody preconcep- tions and prejudgments in regulations and criteria that might lead to a rejection of ocean disposal even when it represents the best feasible alternative (an attitude with which the City of Philadelphia would take vigorous issue)? (2) The bifurcation of rulemaking proceedings to separate the selection of criteria governing ocean dis- posal by dumping and ocean disposal by outfall; and (3) The application of radically different criteria to the ocean disposal of dredged materials and the ocean disposal of all other 'materials. Each of these items will be discussed separately. 1/ The City's specific comments are detailed in the succeeding section. H 306 ------- 4 - (1) Ambivalence of Regulatory Attitude The general approach reflected in the Proposed Criteria of Part 227 in most respects generally reflects an interpretation of the Act under which the Agency, in passing upon permit appli- cations, should determine whether ocean disposal is the most environ- mentally suitable alternative which is practicable and feasible. See, e.g., Proposed § 227.15(c). Such an approach is both open- minded and consistent with the EPA's earliest interpretations of the Act. It does not reject ocean disposal in all instances, nor relegate ocean disposal to the disfavored status of an inferior alternative to be rejected as soon as any other alter- native becomes available. To the contrary, this approach embodies the view that permit applications should be reviewed on a case-by- case basis, without prejudgment. While the City of Philadelphia has many specific suggestions regarding the proposed Part 227, subject to these suggestions the basic approach is one to which the City can and does subscribe. In at least two instances, however, a much different and harsher approach has been injected into the proposed regu- lations and criteria. At the conclusion of the Proposed Criteria 227.16(c), language appears—wholly unrelated to that which pre- cedes and follows—stating in effect that even though ocean dis- posal may be found environmentally superior, or at least the most suitable alternative available in environmental terms, the Agency may nevertheless require permittees "to terminate all ocean dumping by a specified date. ..." And in the general description of H 307 ------- - 5 - categories of permits in Proposed Regulation 220.3, the proposed regulations would purport to impose certain limitations upon the time when interim permits will be granted and the categories of persons which may apply for interim permits. In both these instances, the proposed regulations and criteria imply and to a degree directly state that ocean disposal is disfavored in all instances, and should be or may be eliminated in all instances where feasible alternatives exist—without any case-by-case determination of relative environmental suitability or any scientific justification for an across-the-board determination! In proposing new limitations on interim dumping permits, the Agency stated that it "relied" on "many of the factual assumptions" which are "presented in 'Decision to [of] the Administrator, Ocean Disposal Permit No. PA 010,' September 25, 1975," which involved an appeal by the City of Philadelphia of a permit condition requiring it to terminate ocean disposal by 1981. In that decision, of course, the Administrator upheld the permit condition. But this affirmance was not acknowledged by any evidence of actual significant harm from ocean dumping, nor upon any showing that any feasible alternative actually existed. To the contrary, the Administrator relied upon the possibility of "potential harm," and upon the conclusion that the problems with implementing possible alternatives "appear to be manageable." Decision of the Administrator 4, 6. These H 300 ------- - 6 - determinations were accepted by the City of Philadelphia as presenting a sufficient basis to justify its expenditure of substantial funds in actively seeking to implement possible alternatives to ocean disposal which would be environmentally superior. However, by their very nature, these determinations— or more accurately, predictions—were and are subject to possi- ble modifications on the basis of actual experience. Accordingly, the City of Philadelphia can certainly not agree that the 1975 Decision of the Administrator should or can be interpreted, either as a matter of law or a matter of common sense, as a determination applicable to all ocean dumping for all time, without regard to actual scientific evidence or practical experience that may materialize in the future. The City of Philadelphia therefore submits that the relevant portions of Sections 220.3(d) and 227.16(c) should be deleted in order to bring these sections into conformity with a proper interpretation of the Act and the regulatory approach generally reflected in other passages of the proposed regulations and criteria. (2) Bifurcation of Rulemaking for Ocean Disposal by Dumping and By Outfall The present regulations provide that the same criteria shall' govern "permit applications for the dumping or discharge through.outfalls or other structures" of waste materials. 40 H 309 ------- C.F.R. § 227.1(b). The succeeding subsection of the present regulations acknowledges that the relevant statutory provisions, Section 102(c) of P.L, 92-532, 33 U.S.C. § 1412(c), and Section 403(c) of P.L. 92-500, 33 U.S.C. § 1343(c), require the Administrator to consider essentially the same factors in passing upon permit applications. Despite this statutory and regulatory background, the proposed revisions of the regulations and criteria under the Marine Protection, Research and Sanctuaries Act exclude ocean disposal by outfall or other structure from their scope. Proposed Regulation § 220.2(e).- In proposing these revisions the Agency has stated that it "will propose revisions to the ocean outfall criteria presently appearing in 40 C.F.R. Part 227" sometime "in the near future." 41 Fed. Reg. 26, 644 (June 28, 1976). The City of Philadelphia does not wish to appear obstructionist by inflexibly demanding that rulemaking regarding the two relevant types of ocean disposal proceed simultaneously in a single proceeding. The City does believe, however, that whatever regulations and substantive criteria are to be applied to ocean dumping should also be applied to ocean disposal by outfall. If the subsequent rulemaking regarding ocean disposal by outfall which the Agency promises to undertake leads to this result, the City will obviously have no quarrel with the Agency on this score. The City wishes to plainly state its contention, which it believes indisputably supported by law, that a regulatory H 310 ------- regime which would apply different substantive criteria to ocean disposal by dumping and ocean disposal by outfall would be unlawful. (3) Application of Different Standards to Ocean Disposal of Dredged Materials Section 103(b) of the Act, 33 U.S.C. § 1413(b), states that "the Secretary [of the Army] shall apply those criteria, established pursuant to [Section 102(a) of the Act, 33 U.S.C. § 1412(a)]," in reviewing permit applications for the disposal of dredged material. Section 103(c) of the Act, 33 U.S.C. § 1413(c) in turn requires the Administrator to review the deter- minations of the Secretary to ensure "compliance with the criteria established pursuant to [§ 103(a) of the Act, 33 U.S.C. § 1414(a)]. There is certainly nothing in this clear statutory language to suggest that radically different substantive criteria should or can lawfully be applied to the ocesn disposal of dredged material, on the one hand, and all other wasted materials, on the other hand. But this is precisely the approach reflected in the present proposed regulations. The City of Philadelphia submits that this is un- reasonable and unlawful. If the ocean disposal of dredged ma- terials will not, in fact, unreasonably degrade the marine environment, then it should be possible for such disposal activities to survive scrutiny according to the same criteria H 311 ------- _ 9 - applied to other forms of ocean dumping. The City of Philadelphia therefore suggests that all substantive criteria applicable to the ocean disposal of waste materials generally should also be applicable to ocean disposal of dredged materials. See also Appendix A (Technical Comments by Raytheon regarding treatment of dredge spoils). SPECIFIC COMMENTS The City of Philadelphia's specific proposals regarding particular proposed regulations and criteria are itemized below. In each instance, the proposed re- vision suggests specific changes in language, indicated by dashed-lines through material to be deleted and by underscoring new language to be added. These specific proposed changes are followed in each instance by comments stating the reason for each proposal. H 312 ------- - 10 - SPECIFIC PROPOSED REVISIONS PART 220 PROPOSED REVISION: § 220.3 Categories of Permits (d) Interim permits. P5riei?-fee-Apifil-237-l&?8- [IJnterim permits may be issued under certain 'conditions in accordance with Subpart A of Part 227 to dump materials which are not in compliance with the environmental im- pact criteria of Subpart B of Part 227, or which ase efeheufwise-anaeeepfeabte-fee-eeean-dampinf-as-deteenained in-aeeeedanee-witeh would cause substantial adverse effects if dumped under the criteria of Subparts D or E of Part 227 or for which an ocean disposal site has not been designated on other than an interim basis pursuant to Part 228 of this Subchapter H; provided, however, no permit may be issued for the ocean dumping of any materials listed in Section 227.5, or for any of the materials listed in Section 227.6, except as trace contaminants?—psevidei-fasfehej*—fchafc-fehe-eeapli- a»ee-dafee-ef-Ap5?il-237-19?87-S0es-net-apply-feor —She-damping-ef-wasfees-fsem-aewaefe-tereafemenfe weifka-when-fehe-Refienal-ftdminisfeeafeee-defeermtBes-fchafe fehe-applieaftfe-has-exes'eised-his-besfc-effesfea-'fee-eemply wifeh-all-eeqaiffementes-ef-a-speeial-peemiferres? *(2f—She-dttapinf-ef-aBy-efeheK-wasfces-fcy-exiafeirBf dwpera-when-fche-Regienai-AdmiBtsfcaeafcasf-detieeaiftes-'fchafc fche-damper-has-afefeempteed-in-geed-faifeh-te-eempiy-wsth fche-dafce-e£-A»sfil-237-i9?8T-and-has-a-fejfeafcmenfc-#ae±iitsy ttndee-een9fcjfuefci©»-©n-a-sehedale~adequafee-fee-pej?aifc-phas±n§ eafc-ef-eeeaR-damping-Off-eeBpiianee-wifch-fche-eififcesia-ef Sajbpa3?te-B-by-April-23T-1981r-afc-fche-lafcestT Ho-iftfeerim-pejfmifc-will-be-gsranted-fes-fehe-duRiping-of wasfee-fsaiR-a-faeiiifey-whieh-has-Refe-psevieasiy-daiaped wastees-in-fehe-oeean—fexeepfe-when-fehe-faeiiifey-is epesfafced-fey-a-aaaieipalitey-ftew-damping-saeh-wasfeesW f3fem-a-new-faes:l±fcy7-03f-£j?o»-fche-expansion-es-medi€iea- teieR-e£-an-exi3fci»f-faeilifcy--affce!f-fche-eifeefcive-dafee of-'fehese-regulafcionsT—Ne-intee^im-pesmife-wili-be-iaaaed fesf-fehe-dampiftf-ei-any-aafceifial-iR-the-eeeaR-fes-whieh an-iRfeeifiin-pefflftife-had-pjfevieaaly-been-issaeel-ttRleas-fehe H 313 ------- § 220.3 - 11 - applieaBfe-demeRSfcrafees-fehefe-he-has-exereised-hia feeafe-efiesfes-fee-eeraply-wifeh-alt-pifevisiens-ef-'fehe Buevieasiy-iasHei-seiraitST • * * • COMMENT: The criteria set forth in Part 227 pro- vide adequate standards to determine whether an interim permit should or should not be granted, and grant the Administrator proper discretion in making such determinations. Since this is so, there is no justification for a prejudgment in these regulations that no interim permits will be granted after April 23, 1978, even with the special exceptions provided in the Proposed Regulation § 220.3(d). Accordingly, the language of the Proposed Regulation § 220.3(d) has been revised to eliminate this prejudgment. In addition, a minor revision has been made to substitute the language "would cause substantial adverse effects if dumped under" for the language "are otherwise un- acceptable for ocean dumping as determined in accordance with" in describing the nature of a determination which may be made in applying the criteria of Subparts D or E of Part 227. There may well be instances in which there may be "substantial adverse effects" of the types specified by Subparts D and E of Part 227 which are nevertheless not "unacceptable" if no environmentally superior alternatives are available. ------- § 220.3 - 12 - Finally, the last sentence in the EPA proposed § 220.3(d) has been deleted. An applicant's failure to comply with the provisions of a previous interim permit should of course be a major consideration in determining whether a new permit should be issued. But there is no reason why the Agency should risk restricting its own discretion by adopting a regulation which might be argued to make denial a subsequent permit mandatory in all instances where a permit holder has failed to comply with any term of a previous permit, particu- larly in view of the large multiplicity of provisions of varying significance contained in many present permits. ------- - 13 - PART 222 PROPOSED REVISION : § 222.6 Presiding Officer A hearing convened pursuant to this Subchapter H shall be conducted by a Presiding Officer, The Ad- ministrator or Regional Administrator, as the case may be, may designate a Presiding Officer. For adjudicatory hearings held pursuant to § 222.11, the Presiding Officer shall be an Administrative Law Judge appointed under 5 C.F.R. § 9307203 (1976) BPft-empleyee-whe-ha3-had-Re-pj?±er eonneefeie»-wtt;h-fche-pe3?mife-applieafcien~a:R-qttesfcieR7-ineltti- ing-witehettte-limiteateienT-tehe-perfeemanee-ef-invesfeigateive-ei? pjfeseea-fcinf-iaReteioas-es-aBy-efehes-faBe-feienST-aRd-whe-ia Refe-eiRpleyed-in-'fehe-eRfesfeemeRfe-diviaioR-eif-any-segienal eRfoeeemeRte-effieeT COMMENT: In those instances where adjudicatory hear- ings are held pursuant to § 222.11, the use of an Administrative Law Judge is warranted to insure an impartial, effectively con- ducted proceeding. Administrative Law Judges, by the nature of their appointment, job security, and experience are both quali- fied to preside over an adjudicatory proceeding and accustomed to making decisions on a quasi-judicial basis. EPA employees, despite their best intentions, will often not be similarly qualified. Based upon the experience of the first several years under the Act, it does not seem likely that adjudicatory hearings will become so numerous in the future as to make the use of Administrative Law Judges in such proceedings infeasible or unduly burdensome. 8 316 ------- § 222.6 - 14 - If the revision proposed by the City of Philadelphia is not accepted, the EPA proposed § 222.6 should at the very least be substantially tightened to provide greater guarantees (which the City of Philadelphia believes would still not be sufficient) of impartiality and insulation from improper in- fluences. A possible revision might be: .... The Presiding Officer shall be an EPA employee who has had no prior connection with the administration or enforcement of the Act or any permits or permit applications thereunder, and who does not report directly or indirectly to any such person below the Administrator. ------- - 15 - PROPOSED REVISION: § 222.8 Recommendations of Presiding Officer .... the Presiding Officer will prepare and forward to the Administrator or to the Regional Administrator, as the case may be, written recommen- dations relating to the issuance or denial of, or conditions to be imposed upon, the proposed permit and the record of the hearing, if any. Such recommenda- tions shall contain a brief statement of the basis for the recommendations including a description of evidence relied upon in justification for permit provisions which differ from any tentative deter- minations issued prior to the hearing or for any permit denialI Copies of the Presiding Officer's recommendations shall be provided to any interested person on request, without charge. Copies of the record will be provided in accordance with 40 CFR 2. COMMENT: The new language proposed for this section is intended to impose upon the Presiding Officer an obligation to explain the basis for any recommendations which differ from those of the tentative determination issued prior to a hearing. In past instances involving permits issued to the City of Philadelphia, permit provisions have been included which could not, insofar as the City could determine, be explained or justified on the basis of any evidence presented at hearings prior to permit issuance. In such circumstances, an applicant is confronted with the basic unfairness of a permit condition premised upon evidence, if any, which the applicant has not had notice of or any opportunity to rebut. « ruo ------- - 16 - PROPOSED REVISION: § 222.11 Conduct of Adjudicatory Hearings (e) Adjudicatory hearing procedures. (1) The burden ef-pseef-and of going forward with the evidence shall: (i) In the case of any adjudicatory hearing held pursuant to §-222Tl07-be-eft-the-appi±eante § 222.10(b)(1) be on the person filing a request under § 222.10(a) as to each issue raised by the request; (ii) In the case of any adjudicatory hearing held pursuant to § 222.10(b) (2) be on the' applicant; and (iii) In the case of any adjudicatory hearing held pursuant to § 223.2 or pursuant to Part 226, be on the Environmental Protection Agency. (5) Rulings of the Presiding Officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters, shail-be-£inal-an£ shall appear in the record. (6) Interlocutory appeals are disfavored and may not be taken except in exceptional circuiP stances. COMMENT; The revision proposed for subparagraph (e)(1) eliminates the reference to the "burden of proof," while retain- ing the reference to the "burden of going forward." In order to provide for an expeditious hearing, it is necessary and appropriate to indicate which party has the responsibility for 319 ------- § 222.11 _ 17 - presenting evidence initially. It is not necessary, in order to conduct the hearing, to make ultimate legal determinations in advance of which party has the "burden of proof." By and large, the City of Philadelphia believes that under the Act the Administrator has the ultimate responsibility for making certain determinations, and that Congress has indicated no, preconception amounting to a presumption either that permits should be granted or that permits should be denied. If this is correct, the concept of a "burden of proof" is ultimately inapplicable to proceedings under the Act. The City recognizes that other parties have in the past taken a different view of the law. The City submits that it is neither necessary nor prudent to attempt to resolve this debate in adopting new regulations. In allocating the burden of going forward, the City submits that it is inappropriate to require an applicant to go forward with evidence in those instances where some other party has, in effect, initiated an appeal by requesting an adjudicatory hearing. In those instances, the burden of going forward should logically belong to the party pursuing an appeal. In those instances where an adjudicatory hearing has been initated by the Administrator or Regional Administrator, and where no party has filed a written request, the City accepts the proposition that the applicant should bear the burden of going forward with the evidence, if only in order to provide some means for conducting the hearing. ------- § 222.11 - 18 - The proposed revision to subparagraph (e) (5) is included to allow for the possibility that the Administrator or Regional Administrator might ultimately determine upon review that a Presiding Officer acted improperly in admitting or excluding evidence, or in allowing or disallowing cross- examination, or in other procedural matters. It would likely be a rare instance where such determinations would be necessary, but the possibility should not be totally precluded in these regulations. The proposed revision to subparagraph (e)(6) is included to allow the Administrator or the Regional Administrator greater flexibility in allowing interlocutory appeals in those very rare, exceptional circumstances where such a procedure might be appro- priate. Since such appeals would be entirely discretionary, the Administrator or Regional Administrator would be under no obli- gation to accept such appeals. ------- - 19 - PROPOSED REVISION § 222.11 Conduct of Adjudicatory Hearings (cont'd) (f) Decision after Adjudicatory Hearing. (1). . . . the Presiding dfficer shall submit to the Administrator or the Regional Administrator, as the case may be, proposed findings of fact and conclusions of law, his recommendation with respect to any and all issues raised at the hearing, and the record of-the hearings. Such findings, conclu- sions and recommendations shall indicate the evidence relieved upon to support .individual findings and contain a brief statement of the basis for the recommendations. . . . (2) Within 20 days following submission of the Presiding Officer's proposed findings of fact, conclusions of law and recommendations, any party may submit written exceptionsj-ne-Heife-fehan-SS-pages in-ien§fch7 to such proposed findings, conclusions ana recommendations and within 30 days following the submission of the Presiding Officer's proposed findings, conclusions and recommendations any party may file written commentST-RO-»©3fe-fchan-19-pa§es-in lengthy on another party's exceptions. Brevity and concision are encouraged in any such exceptions or commentiT Within 45 days following the submission of the Presiding Officer's proposed findings, con- clusions and recommendations, the Administrator or the Regional Administrator, as the case may be, shall make a determination with respect to all issues raised at such hearing and shall affirm, reverse or modify the previous or proposed determination, as the case may be. Notice of such determination shall set forth the determination for each such issue, shall briefly state the basis therefor and shall be given by mail to all parties to the adjudicatory hearing. COMMENT: The new language suggested for subpara- graph (f}(1) is intended to impose upon the Presiding Officer the obligation to identify the evidence which relates to indi- vidual findings. Such a process vastly simplifies the task of rl 322 ------- § 222 - 20 - parties wishing to file exceptions to any such findings, and also makes it far easier for the Administrator or Regional Administrator to determine whether particular findings are in fact supported by evidence of record. The proposed revision to subparagraph (f) (2.) elimin- ates the page limitation upon exceptions filed to the Presiding Officer's proposed findings, conclusions and recommendations, and upon comments filed in response to exceptions. Proceedings involving permit applications under the Act are, as experience has proven, likely to encompass extensive technical scientific evidence. The issues at stake are of great importance to the public and to applicants. In such circumstances, it is wholly unrealistic and unreasonable to expect parties to limit their exceptions to 20 pages in all instances. Courts of law sometimes impose page limitations upon briefs, although such limits are invariably much more liberal than those contained in the Proposed Regulation S 222.11(f)(2); limitations upon exceptions to proposed findings are, to say the least, much more unusual. The City of Philadelphia submits that the Administrator and Regional Administrators are adequately protected from un- reasonably burdensome filings by a statement that brievity and concision are encouraged in exceptions and comments, particularly in view of the time limitations imposed for the filing of such exceptions and comments. ------- - 21 - PROPOSED REVISION: § 222.12 Appeal to Administrator (b) The notice of appeal shall-be-ne-mesre-tehan 38-pagea-in-lengteh-anel shall contain: (1) The name and address of the person filing the notice of appeal; (2) A concise statement of the facts on which the person relies and appropriate citations to the record of the adjudicatory hearing; (3) A concise statement of the legal basis on which the person relies; (4) A concise statement setting forth the action which the person proposes that the Admini- strator take; and (5) A certificate of service of the notice of appeal on all other parties to the adjudicatory hearing. COMMENT. The page limitation imposed by the Proposed Regulation § 222.12(b) should also be deleted, for the same reasons suggested in proposing a deletion of the page limita- tions contained in the EPA Proposed Regulation § 222.11(f) (2). (d) Within 20 days following the filing of a notice of appeal in accordance with this section, any party to the adjudicatory hearing may file a concise written memorandum, nor-mere-then-lS-pages-in le»gfch7 in response thereto. COMMENT: The page limitations imposed by the Proposed Regulation § 222.12(d) should also be deleted. H 324 ------- - 22 - PAET 22 3 PROPOSED REVISION; § 223.2 Modification, Revocation and Suspension • • • * (c) Requests for hearings. . . . (2) Whenever (i) a written request satisfying the requirements of paragraph (c) (1) of this section has been received and-fehe-Adwinisfesafeee-er-Regienai Adminisfeifafcejfy-as-fche-ease-iRay-beT-defcesatries-fehafc saeh-jfeqaest-geesenfes-aabsteanteial-iasaes-ef-pufeiie inteveatT or (ii) the Administrator or Regional Admini- strator, as the case may be, determines in his dis- cretion that an adjudicatory hearing is appropriate. . . . COMMENT: Section 105 of the Act, 33 U.S.C. § 1414(f) provides without qualification that "no permit shall be revoked or suspended until the permittee shall have been given notice and opportunity for a hearing on such violation and proposed suspension or revocation." In view of this unambiguous statutory language, there is no justification or basis for the language of the Proposed Regulation § 223.2(c)(2) requiring a deter- mination by the Administrator or Regional Administrator that "substantial issues of public interest" are presented by a proposed modification, revocation or permit suspension before a hearing need be held. H 325 ------- § 227.2 - 23 - PART 227—CRITERIA FOR THE EVALUATION OF PERMIT APPLICATIONS FOR OCEAN DUMPING MATERIALS SUBPART A—General PROPOSED REVISION: § 227.2 Materials Which Satisfy The Environ- mental Impact Criteria of Subpart B (a) . . . : (1) There is no need for the dumping, en? and alternative means of disposal are available, as determined in accordance with the criteria set forth in Subpart C . . . . COMMENT: The propose of this minor revision is, it is believed, simply to state more accurately the proper and intended findings which would be required under Subpart C in order to justify a possii'- permit denial in a situation where the environmental impact criteria of Subpart B are satisfied. That is, there should be both an absence of a need for dumping and the existence of practicable alternatives. For example, it would be improper to deny a permit in every instance simply because a practicable alternative existed, even though a need was found for ocean disposal, since this finding would entail an appropriate balancing under Proposed Criteria § 227.15(c) of "the relative environmental impact and cost" of all feasible alternatives including ocean dumping. H 326 ------- S 227.6 - 24 - SUBPART B—ENVIRONMENT IMPACT PROPOSED REVISION: § 227.6 Constituents Prohibited As Other Than Trace contaminants. (a) . . . . (5) Known ee-SHspeeteed carcinogens or materials suspected to be carcinoginic by responsible scientifTc opinion. (b) A materialT-ofeher-fehaft-drefigeel-mateesialT containing any of the constituents listed in paragraph (a) of this section may be dumped pursuant to a special permit when the following requirements are satisfied: (1) Meeeujfy-and-ifcs-eeffipettnds-ase-pireseftt-iB-any aeiid-ahase-ef-a-wafeeffial-in-eeneenfeBateiens-tesa-'tehan 0-r:?5-»g/k«7—•and-tehe-feetea3:--eeneenfe!?atei©R-ef-me3;ett!fy-in fche-ii^HiS-Bhaae-ef-a-mafeeffiai-is-lesa-tehaft-lTS-mg/ke-j- (2) eadmiHiR-and-ifcs-eompoun^a-aafe-psesenfc-ia-any aolid-phase-ef-a-Hiafcesial-iR-eeneenfesateiens-less-fehaR 8T6-mf/kg7-and-fche-teeteai-esBeeRfesafci©»-e§-ead»itt»-iR fehe-l±qatd-phase-ef-a-»afceafial-ia-les9-'feliaR-3T0-»f/k§T (1) The total concentration of mercury, cadmium or their compounds in the waste as transported for dumping is such that the limiting permissible concen- tration as defined in § 227.27 is not exceeded at any point in the marine environment after short term mixing as defined in § 227.29. (2) The total concentration of mercury, cadmium or their compounds in the waste as transported for dumping ii such that (i) in the case of wastes which have been dumped at a disposal site for three or more years, no statistically significant accumulations of these materials above normal ambient values attributable to past ocean gisposal of the waste are present in the sediments of tRe disposal site or surrounding area, or (ii) in tfie" case of wastes not previously dumped at a site for three or more years, an analysis of known settling velocities for the solid constituents of the waste and the Kydrodynamic properties of the site demonstrate that such statistically significant accumulations above normal ambient values are not reasonably to be expected to occur. (3) The total concentration of any or all organo- halogen constituents in the waste as transported for ------- § 227.6 - 25 - dumping is such that the limiting permissible concen- tration as defined in § 227.27 is not exceeded at any point in the marine environment after short term mixing as that term is defined^in § 227.29. vrifeheate-gegayd-fee allewanee-fejf-a:«iteial-mixiR§--i3-les3-fehaR-a-eeneeftfeffa- feien-ef-aaeh-eensteifettenfes-kRewR-fee-be-feexie-fee-maeiae ereanisRisr—5he-detesminatien-e€-the-'fc©xieifc?-valae-wiil be-baaed-on-exi9.feing-9eienfcifie-dafca-or-deyeieped-by- the-tise-o£-biea3say-aethed3-eendaefeed-in-aeeesda«ee-wifch appifOved-BPA-pi;oeedusre»- (4) The total amounts of oils and greases as iden- tified in paragraph (a)(4) of this section do not produce a visable surface sheen in an undisturbed water sample when added at a ratio of one part waste material to 100 parts of water. (c) «... (d) The prohibitions and--limitations of this section-do- not apply to the constituents identified in paragraph (a) of this section or in the case of quantitatively measured limita- tions shall be appropriately recalculated when the applicant can demonstrate that such constitutents are (1) present in the material only or partially as chemical compounds or forms (e.g., inert insoluble solid materials) non-toxic to marine life and nonbioaccumulative in the marine environment, or (2) present in the material only or partially as chemical compounds or forms which, within four hours after disposal, will be rendered non- toxic to marine life and non-bioaccumulative in the marine environment by chemical or biological degradation in the sea; provided they will not make edible marine organisms unpalatable; or will not endanger human health or that of domestic animals, fish, shellfish, and wildlife. (e) .... COMMENT: The proposed revision to subparagraph (a)(5) relating to carcinogenic or possibly carcinogenic materials is intended merely to state explicitly what the present language of the EPA proposed subparagraph should be interpreted to state im- plicitly—i.e., that there must be some responsible basis to regard a material as a "suspected carcinogen." ------- S 227.6 - 26 - The minor revision in line 1 of paragraph (b) re- flects our general comment, discussed earlier, that dredged materials should be treated in a manner comparable to other materials. The major changes suggested in Proposed Criteria § 227.6 relate to the treatment of mercury and cadmium in sub- paragraphs (b)(1) and (2), and of organohalogens in subpara- graph (b)(3). The rationale for the City of Philadelphia's recommended approach is as follows: Mercury and Cadmium. The approach reflected in the existing Criteria § 227.22(f)(1) and (2) is based upon arbitrary assumptions concerning acceptable concentrations of mercury and cadmium in marine waters, and the fate of ocean dumped waste materials and their constituents. With regard to the first point, the existing mercury and cadmium criteria employ a stan- dard based upon the use of background levels in determining per- missible concentrations. This approach was rationalized at the time the existing criteria were promulgated on the ground that information regarding acute and chronic toxicity for mercury and cadmium in sea water was not available, as explained in the Draft Environmental Impact Statement ("DEIS") at pages 41-45. The DEIS acknowledges at page 81 that limiting permissible concentrations for mercury and cadmium can now be defined on the basis of acute and chronic toxicity values. Despite this availability of scientific evidence, the previous standard based upon background ------- S 227.6 - 27 - levels is proposed for retention in the new Criteria. This retention of a now outmoded approach is arbitrary and does not 1/ reflect responsive use of now-available toxicity information. Accordingly, the City of Philadelphia suggests in its suggested rewriting of subparagraph (b)(1) that the concentration of mercury and cadmium should be governed by the limiting per- missible concentration as determined under Proposed Criteria § 227.27 (which is itself the subject of a suggested change, as discussed subsequently). The suggested rewriting of subparagraph (b)(1) also differs from the existing criteria in referencing the total con- centration of mercury and cadmium, rather than positing a distinc- tion between a "solid phase" and "liquid phase." This aspect of the rewriting suggested by the City of Philadelphia, as well as the new subparagraph (b)(25 suggested, reflects the need for a revision of the pivital assumption regarding the fate of ocean dumped materials which underlay the existing criteria at the time of their adoption. In postulating a permissible "solid phase" concentra- tion of mercury or cadmium, the existing criteria assumed that all particulate metals assayed in the barge would settle rapidly to the bottom; indeed, the extraordinary assumption made was that this particulate matter would sink directly to the bottom, coming to rest through many fathoms of turbulent ocean water at a point directly beneath the point of release. 1/ A summary of some of the information available (from Bernhard & Zattera, 19755 is presented in Appendix B. ------- § 227.6 - 28 - The particulates defined as comprising the "solid phase" were those which do not pass through a 0.45 micron filter in analysis. There is, however, no basis for assuming that this size class of particulates invariably settles directly to the bottom in all cases. Of course, in the absence of reasonably definite knowl- edge permitting a meaningful prediction of the fate of these par- ticulates, some assumption must be made—either that they will sink tg the bottom, or that they will remain, for practical pur- poses, in suspension in the water column. The choice of assump- tions reflected in the existing criteria, and proposed for retention in the new criteria, was extraordinary, however. Even in the absence of definite knowledge concerning the fate of specific classes of particulates, the general characteristics of the waste material in question should provide some guidance. For example, the bulk density of sewage sludge is less than that of sea water, being approximately 1.01 for New York sludge and approximately 1.015 for Philadelphia sludge. Sea water density at both sites is about 1.024. If nothing more is known about the likely fate of - specific particulates, this density comparison should indicate that if anything is to be assumed, the more reasonable presumption would be that such waste materials will behave as a liquid. Regardless of the reasonableness of the assumption originally made in 1973, the evidence gathered since then demon- strates that no simple assumption that all particulates sink ------- § 227.6 - 29 - directly to the ocean floor is remotely justified. For example, studies on the New York Bight sludge indicate that the settling velocities of both fine and-.-even more clearly—superfine par- ticles, which together comprise 60% of the total particulate mass (which itself is only 2.6% of the total), are so slow as to render the likelihood of their settling to the bottom remote (Raytheon 1976a). As shown in Table 1, the settling velocities of medium size particulates, which comprise an additional 30% of the total mass, are also sufficiently slow to raise, at the least, serious question whether they sink to the bottom. Only 10% of the total particulate mass, consisting of heavy particu- lates, seem likely to settle to the bottom, and of course very little can be said even there concerning the dispersion that may occur before these heavy particles reach the ocean floor. This evidence is consistent with transissometer data collected by EPA at the Philadelphia disposal site during Operation Wakefall. These data show that the sludge plume spreads above the thermo- cline for several hours (for example, Payne 19 76). Sediment data collected by EPA at the Philadelphia dump site provides even more conclusive proof of the unreason- ableness of the previous assumption regarding the fate of par- ticulate matter. The permissible concentration for the so-called "solid phase" of cadmium in the present Criteria § 227.22(f) (?) is .6 ppm. The actual "solid phase" concentration of cadmium in Philadelphia sludge, measured according to present EPA standards, is approximately 80 ppm, more than a hundred times the present permissible concentration. Since this present limit was based on an assumDtion that it would result in a 50% inrreasp nvpr ambient ------- - 30 - TABLE 1 SETTLING VELOCITY OF SIZE CLASEES OF PARTICLES FROM NEW YORK BIGHT SEWAGE SLUDGE Size Class Percent of Total Settling Velocity (em/s) Heavy 10 0.76 Medium 30 0.064 Fine 30 0.0056 Superfine 30 0.00003 From Raytheon, 1976a. B 333 ------- § 227.6 - 31 - Philadelphia sludge, with its enormously higher "solid phase" cadmium concentration, should have resulted in massive increases in sediment cadmium concentrations. Nothing like that has happened, of course. The sediment cadmium concentrations found by EPA, as shown in Table 2, range from 0.08 to o.264 ppm, which is well within the range of—indeed, on the low side of—normal ambient sediment cadmium concentrations in control areas. (DEIS, p. 45) In short, the EPA assumption that the total "solid phase" of particulate matter sinks directly to the bottom, which was to say the lease improbable at the time of its adoption, has found no support and substantial refutation in all the evi- dence collected since that time. The City of Philadelphia sub- mits that by far the more reasonable assumption, so long as some blanket assumption must be made in the absence of definite data, is that waste materials such as sewage sludge behave as a liquid. This approach is reflected in the proposed rewriting of subpara- graph (b)(1). This suggested approach does not, it should be emphasized, make any effort to assume that either mercury or cadmium disappears? the presumption being applied, rather, is that the total concentration of mercury and camium remains in the water column, and that its possibly toxic effects should be measured there. This is, quite simply, the most reasonable presumption based upon available evidence. In fact, failure to make this presumption would actually result in failure to protect"the water column. To the extent that nothing definite is known concerning the fate of ocean dumped materials, possible adverse effects upon sediments are best measured by actual empirical evidence, rather ------- - 32 - TABLE 2 COMPARATIVE SEDIMENT TRACE METAL DATA (mg/kgdw> Location Reference Cadmium Mercury Hempstead Survey Udell et al. •1974 - East Dump Site - Control 2:5 <0.1 - 'Acid Waste Disposal Area Vaccaro et al. 1972 - Station Three - Control - Hudson Canyon 1.3 0.2 2.3 - Philadelphia Ocean Disposal Site - Quicksilver* - Fetch* - Ides* - Deep Six* - Touchstone* Palmer et al. 1973 tear et all 1974 Lear et al. 1975 Lear et al. 1975 Lear, 1976 <1 <1 0.264 0.091 0.081 <0.01 <0.01 0.020 0.688 New York Bight, North Alternate Disposal Site Raytheon, 1976 NOAA, 19 <1 <1.0 0.23 ^ , Detectable and less than values averaged for conservative mean. H 335 ------- § 227.6 - 33 - than unwarranted assumptions. Accordingly, the first portion of the suggested new subparagraph (b)(2) focuses upon the possible existence of statistically significant accumulations of mercury or cadmium in sediments. Of course, to the extent enough information i£ known concerning settling velocities and other dynamics affecting the fate of waste material constituents, reasonable predictions can and should be made, and this possibility is provided for by the second part of the new subparagraph (b)(2). Organohalogens. The Proposed Criteria § 227 (b) (3) treats organohalogens in a way wholly inconsistent with the general standard of a limiting permissible concentration. In effect, the proposed approach allows for no dilution whatsoever of waste materials following ocean disposal. There is no reason for this wholesale rejection of reality. To the contrary, to the extent that the standard for a limiting permissible concen- tration is developed in a way which reasonably satisfies the need to protect the marine environment, the logical and correct treat- ment of organohalogens should be the same.. The suggested change to subparagraph (b)(3) reflects this approach. The only justification offered for the EPA approach, as stated at page 5 3 of the DEIS, is that "since wastes are likely to be mixtures of compounds [i.e., organohalogens] in which syner- gistic effects are likely, it was felt that this additional safety factor [i.e., allowing for no dilution whatsoever] was desirable." ------- S 227.6 - 34 - This fleeting effort toward justification is incon- sistent with the statement at page 57 of the DEIS which indi- cates that the application factor of 0.01 suggested for use in defining limiting permissible concentrations is itself based upon "mixed waste application factors." There is, moreover, no reference provided for the proposition that "synergistic effects 1/ are likely" with organohalogens. If such synergistic effects are present, they should be identified and made the basis for a specially defined application factor, rather than utilized improperly as the basis for an arbitrary total refusal to consider dilution which unquestionably occurs. Finally, the City of Philadelphia has suggested a change to paragraph (d) which takes into account those circum- stances where some but not all of the constitutents identified in paragraph (a) are present in a non-toxic or non-bioaccumulative form, or in a form rapidly rendered non-toxic and non-bioaccumula- tive. The Proposed Criteria would provide merely that the pro- hibitions of § 227.6 do not apply at all when all of the consti- tuents identified in paragraph (a) are in a harmless form of a form rapidly rendered harmless in the ocean. It will be much more common, in all likelihood, for a portion of such constituents to be in a harmless form. Both common sense and the evident intent of the present EPA Proposed Criteria indicate that these inter- mediate situations should be taken into account, and that the 1/ However, Macek (1974) reports synergistic effects with fresh water fish for organohalogens which are on the order of two- or three-fold. H ------- S 227.6 - 35 - quantitative limitations of paragraph (d) should be appropriately calculated to exclude whatever proportion of the constituents identified in paragraph (a) are present only in a harmless form. H 330 ------- § 227.7 - 36 - PROPOSED REVISION-. § 227.7 Limits Established 'for Specific Waste or Waste Constituents (c) Wastes containing living organisms may not be dumped if the organisms present would endanger human health or that of' domestic animals, fish, shellfish and wildlife by (1) Extending the range of biological pests, viruses, pathogenic microorganisms or other agents capable of infesting, infecting or extensively and permanently altering the normal populations of organisms; (2) Degradeing uninfected areas; or (3) Introduceing viable species not indigenous to an area. COMMENT; The purpose of this proposed revision is to make clear that limitations upon the disposal of waste containing living organisms should be applied not as a platonic abstract but in order to, and only when necessary to, protect human life or health, or the health of other valuable species. The suggested language included is drawn from subparagraph (d) of the EPA proposed § 227.6. H 330 ------- § 227.10 - 37 - PROPOSED REVISION: § 227.10 Hazards to Fishing, Navigation, Shorelines or Beaches (a) Wastes which may present a serious obstacle to fishing or navigation may be dumped only at dis- posal sites and under conditions which will ensure no unacceptable interference with fishing or naviga- (b) Wastes which may present a hazard to shore- lines or beaches may be dumped only at sites and under conditions which will insure no unacceptable danger to shorelines or beaches. COMMENT; The purpose of this proposed revision is to make explicit the intention that a standard of reason- ableness or acceptability is to be applied under this section; language susceptible to a possible interpretation as imposing an absolute standard of no risk at all would be improper since all possible alternatives might have higher risks of environ- mental harm than a small but perceptible risk of the sort specified by this section. H 340 ------- § 227.15 - 38 - SUBPART C—Need for Ocean Dumping PROPOSED REVISION: § 227.15 Factors Considered The need for dumping will be determined by evalua- tion of the following factors: (a) Degree of treatment necessary and feasible for the waste to be dumped, and whether or notthe waste ma- terial has been or will be treated to this degree before dumping .... COMMENT: The purpose of this proposed revision is to indicate that a standard of necessity as well as feasibility should be applied in imposing treatment require- ments upon materials before disposal. This standard is already indicated by Proposed Criteria § 227.16(a)(1), which discusses "practical improvements" in waste treatment "to reduce the adverse impacts of the waste on the total environment." ------- § 227.16 - 39 - PROPOSED REVISION: § 227.16 Basis for Determination of Need for Ocean Dumping (c) The duration of permits issued under Sub- chapter H and other terms and conditions imposed in those permits shall be determined after taking into account the factors set forth in this section. Nefe- witehateandin§-eeispiianee-wifeh-Sufepaj;tes-B7-B7-and-E-ef fehi»-Pasfc-22?-pei?mifeteee9-mayr-en-fehe-ka9i9-e#-fehe need-fer-and-alteernafeives-fee-eeean-daiHping r-be-se- aHiafed-fee-fcesfminafee-all-eeeaR-daiBBiRf-by-a-speeified dafcer-te-phaae-eut-all-eeean-dttHipiRf-eves-a-apeeiiie# pesied-eaf-peifieisy-fce-eeRfeinae-ifeseareli-aRi-ievelep- menfe-ef-alteejfRafeiye-mefeheds-ef-dispesal-aad-make pej?iedie-repertes-ef-saeh-j?e9ea5eh-aR€l-ieveiepme»fe-iH esdeff-fee-pffeviie-aMifcienai-infejfmafcieR-ieff-peffieiie review-ef-tehe-need-fesr-and-alteeieRafeives-fee-eeeaR-iainp- tRfr-eif-fee-feake-aaeh-efchee-aefcien-as-the-AdmiRiafesafeer e5f-fche-RegieRai-A§fa±Ristufafeeff7-as-fche-eaee-may-be7 defeesmiRes-fee-be-Reeesaary-ee-appreBifiafeeT COMMENT: The language proposed for deletion is, it is submitted, superfluous and inappropriate. In those instances where applicants have complied with Subparts B, D and E of Part 227, there is neither need nor justification for a requirement that ocean dumping be terminated. To the con- trary, the conclusion to be drawn from compliance with Sub- parts B, D and E is that ocean dumping of the waste in question is the most acceptable alternative means of disposal in view of all the factors to be considered as specified by the statute and regulations. See City of Philadelphia General Comment (1). ------- § 227.17 - 40 - SUBPART D—Impact of the Proposed Dumping or Possible Alternatives on Asthetic, Recreational and Economic Values PROPOSED REVISION: § 227.17 Basis for Determination (a) The impact of dumping or possible alterna- tive methods of disposal or recycling on esthetic recreational and economic values will be evaluated on an individual basis using the following considera- tions ! (1) Potential for affecting recreational use and values of ocean waters, inshore waters, beaches, o« shorelines, land resources or the atmosphere; (2) Potential for affecting the recreational and commercial values of living marine or terrestrial resources. (b) For all proposed dumping or possible alterna- tives full consideration will be given to such non- quantifiable aspects of esthetic, recreational and economic impact as: (1) Responsible public concern for the conse- quences of the proposed dumping or possible alterna- tive; (2) Consequences of not authorizing the dumping including without limitation, the impact on esthetic, recreational and economic values with respect to the municipalities and industries involved. COMMENT: Since the propriety of ocean dumping should be evaluated in comparison with the acceptability of alternative methods of disposal or recycling, Subpart D and specifically § 227.17 should be revised to make explicit the consideration of the impact of such possible alternatives on esthetic, recre- ational and economic values. ------- S 227.18 - 41 - PROPOSED REVISION: § 227.18 Factors Considered (a) Nature and extent of present recreational and commercial use of areas which might reasonably be expected to be affected by the proposed dumping; (b) Existing water quality, and nature and extent of disposal activities, in the areas which might reasonably be expected to be affected by the proposed dumping; (c) Applicable water quality standards; (d> Visible characteristics of the materials (e.g., color, suspended particulates) which result in an unacceptable esthetic nuisance in recreational areas; (e) Presense in the material of pathogenic organisms which may reasonably be expected to cause a public health hazard either directly or through contamination of fisheries or shellfisheries; (f) Presence in the material of toxic chemical constituents released in volumes which may reasonably be expected to affect humans directly; (g) Presence in the material of chemical con- stituents which may reasonably be expected to be bioaccumulated or persistent and may have an adverse effect on humans directly or through food chain interactions; (h) Presence in the material or any consti- tuents which might reasonably be expected to signifi- cantly affect living marine resources of recreational or commercial value. COMMENT: The proposed revision is intended to provide explicit content in place of the potentially ambiguous term "may" or "might." The language suggested for insertion is drawn from the introductory passage of Proposed Criteria § 227.21. ------- § 227.19 PROPOSED REVISION: § 227.19 Assessment of Impact An overall assessment of the proposed dumping and possible alternative methods of disposal or recycling will be made based on the effect on esthetic, recreational and economic values based on the factors set forth in this Subpart D, in- cluding where applicable, enhancement of these values, and the results of the assessment will be expressed, where possible, on a quantitative basis, such as percentage of a resource lost, reduction in user days of recreational areas, or dollars lost in commercial fishery profits or the profitability of other commercial enterprises. COMMENT; See Comment to § 227.17. 14 345 ------- § 227.27 - 43 - SUBPART G-DEFINITIONS PROPOSED REVISION: § 227.2 7 Limiting Permissible Concentration (LPC) (a) The limiting permissible concentration is: (1) That concentration of a material or chemical constituent in the receiving water which, after reasonable allowance for initial short term mixing, as specified in § 227.29, will not exceed a toxicity threshold de£ined-a9-0r01-ef determined (i) from an appropriate application factor (set at 0.01 unless reasonable evidence considering the toxi- cology and transformations of the chemical in question in the marine environment suggests otherwise) applied to a concentration shown to be acutely toxic to appro- priate sensitive marine organisms in a bioassay carried out in accordance with approved EPA procedures or (ii) upon the basis of chronic toxicity data relating to appropriate sensitive marine organisms; or (2) Qr91-ef a concentration of a waste material or chemical constituent otherwise shown to be detri- mental to the marine environment. (3) Wifch-j?eapeefc-fce-djfedged-mafcetfial7-fchafc-een- eeRfcjfafcien-ef-a-majejf-eenafcifcueRfc-in-fche-eiufcriafce whiehy-affeeir-allewaRee-feif-iRifeial-mixing-as-pifevideel in-S-SS:?TS9--dees-nefc-exeeed-applieable-wafeej?-qualifcy erifceffiar (b) "Appropriate sensitive marine organisms" shall mean at least one species representative of phytoplankton or zooplankton, crustacean or mollusk, and fish species chosen from among fehe-mesfe appropriate sensitive species indigenous to the disposal site or commonly found in simi- lar marine environments documented in the scientific literature or accepted by EPA as being reliable test organisms for the anticipated impact on the ecosystem at the disposal site. Bioassays, except on phytoplankton or zooplankton, shall be run for a minimum of 96 hours under temperature, salinity, and dissolved oxygen condi- tions representing the extremes of environmental stress at the disposal site. Bioassays on phytoplankton or zooplankton may be run for shorter periods of time as appropriate for the organisms tested at the discretion of EPA. COMMENT: See Comment to § 2 2 7.29 below. ------- § 227.29 - 44 PROPOSED REVISION: § 227.29 Initeiai Short Term Mixing (a) Initeiai Short term mixing is defined to be that dispersion or diffusion of a waste which occurs within €e«ff 24_ hours after dumping. The limiting permissible concentration shall not be exceeded at any point in the marine environment after initial short term mixing. (b) The miximum concentration of a dumped ma- terial after initial short term mixing shall be estimated by one of these methods, in order of preference: * * * (4) When no other means of estimation are feasible, the dumped waste may be assumed to be evenlv distributed after feae 24. hours over a column of water 20 meters deep bounded on the surface by the release zone. COMMENT: it is appropriate to address Proposed Criteria § 227.27 and § 227.29 together because the City of Philadelphia's suggested changes in both sections largely concern the same matter, the proper use and arbitrary abuse of the con- cept of "safety factors" in determining appropriate standards. The City's suggested changes are directed toward three aspects of this issue: (1) the circumstances in which the use of an "application factor" is appropriate (see suggested change to § 227.27(a)(1) & (2)); (2) the type of marine organisms upon which bioassays should be performed (see suggested change to § 227.27(b)),- and (3) the time period over which short term mixing should be measured (see suggested change to § 227.29). (1) Use of "Application Factors." The rationale for the use of an "application factor" in determining a limiting ------- § 227.29 - 45 - permissible concentration ("LPC"), as described on page 48 of the DEIS, is to take into proper account the possibility of chronic toxicity effects when only accute toxicity data are available. The City of Philadelphia agrees with the appropriate- ness of an "application factor" to provide a reasonable margin of safety in these instances, although it has suggested a change to subparagraph (a)(1) of Proposed Criteria § 227.27 to allow for the possible use of a different "application factor" than 0.01 when a deviation is justified by reasonable scientific evidence. The rationale for the use of a "application factor" disappears, however, when actual chronic toxicity data are available. The proposed criteria could be read, in literal terms, by a person unfamiliar with their background, to require the use of an"application factor" even when chronic toxicity dataare being used. The City of Philadelphia's other suggested change to subparagraph (a)(1) would prevent this misreading of the regulations. In addition, the City suggests that the use of an "application factor," particularly an arbitrary 0.01 factor, is inappropriate in the context of subparagraph (a)(2), which speaks of a waste concentration "otherwise shown to detrimental to the marine environment." In the absence of any prior specification of what type of "detrimental" effect may be involved, it would be arbitrary automatically to require the use of such an "appli- cation factor" to provide a perhaps unnecessary and unjustifiable "safety factor." ------- § 227.29 - 46 - (2) "Appropriate Sensitive Marine Organisms." The City of Philadelphia submits that any reasonable need for a margin of safety is more than amply satisfied (1) by defining the LPC upon the basis of a 0.01 application factor when only acute toxicity data is available and (2) by measuring actual acute toxicity with reference to an extended 96-hour bioassay proce- dure. There is no scientific justification for going further to require the use of the most exquisitely sensitive species that can be identified in performing bioassay tests, possibly even species not found in the type of marine environment where ocean dumping is occurring, species which may be much more sensi- tive to various types of environmental stress than species which are indigenous to the area. Whenever possible, bioassay tests should be conducted with organisms selected from among appro- priate sensitive species indigenous to or stocked into the area and representing a diversity of phylogenetic types from the major seasonal successions and life stages. Many organisms are more sensitive in larval, reproductive, molting, or fry stage. However, other criteria such as availability and ease of maintenance in the laboratory should be considered. If the species is the "most sensitive," it may not survive under controlled laboratory con- ditions, quite aside from the bioassay conditions. For these reasons, the City of Philadelphia has suggested an appropriate rewriting of paragraph (b) of § 227.27. ------- § 227.29 - 47 - (3) Time Period for Measuring Short Term Mixing. The Proposed Criteria § 227.27(b) would require bioassays generally to be carried out for a minimum of 96 hours. But having measured acute toxicity on this extended 96-hour basis, Proposed Criteria § 227.29 would measure the dilution and dispersion that a waste material will undergo in the ocean only during the much, much shorter period of 4 hours. This represents a glaring inconsistency of procedure unjustified on any scientific basis. If concentration levels in the ocean are to be measured only over a 4-hour period, then bioassay tests should correspondingly be carried out only for a shorter period sufficient to measure the acute toxicity which might result from the exposure to waste materials during this brief period of mixing which occurs in the dispersion plume. Conversely, if bioassays are to be carried out for 96-hours, di- lution factors should be measured over a period sufficient to assess likely exposure levels during a period corresponding to the bioassay procedure. If the latter approach is chosen, end the City of Philadelphia believes that it is appropriate, a strong argument could be made for measuring dilution and dispersion over a 48- hour period, which would represent a mid-point in the 96-hour bioassay time frame. During the first 48 hours after ocean disposal, concentrations would be higher than the 48-hour point level; correspondingly, the concentrations during the second 48 hours would be lower; and, in the absence of more concrete data, ------- § 227.29 - 48 - it would be reasonable to expect the 48-hour concentration level to represent a reasonable approximation of the average total concentration level during the first 96 hours. To be conservative, the City of Philadelphia has suggested in its rewriting of Criteria § 227.29 that short- term mixing be measured over a 24-hour period. This represents a halving of the 48-hour period which might be taken to represent a best estimate of average 96-hour exposure levels, and accord- ingly encompasses an additional margin of safety. The use of such a period is also consistent with the available data regard- ing dilution and dispersion of ocean dumped materials such as sewage sludge. To illustrate this graphically, cadmium concentrations for Philadelphia sludge following ocean disposal and related toxicity factors are shown in Table 3. Cadmium concentrations are plotted on the vertical axis and time on the horizontal axis; consistently with the City of Philadelphia's suggested change to Proposed Criteria § 227,6, total concentrations of cadmium (rather than simply so-called "liquid phase" concentrations) are shown. Because dilution effects are so great, it is necessary to use a logarithmic scale to reflect a 10,000-fold range of concentrations. The decline in cadmium concentration with dilution and dispersion is shown by the line labeled "actual concentration," which starts at an initial level for Philadelphia sewage sludge of 8,000 ppb. The decline in "actual concentration" was calculated using the far H 351 ------- - 49 - TABLE 3 RELATIONS OF ACUTE AND CHRONIC TOXICITY TO ACTUAL EXPOSURES FOR CADMIUM INT PHILADELPHIA SEWAGE SLUDGE DISPOSED AT SEA lOPOO-i INITIAL CONCENTRATION IN SLUOOE (I.OM pp6) spoo- MUTE TOXICITY LEVEL-24 HR TL, (EfSLEH, 1B71] (Z.400 500- ACUTE TOXICITY LEVEL -SI HR TLJO I (EISLER, 1971) (320 ppb) 100- 50- 10- OIRIVEO CHRONIC TOXICITY LEVEL (EISLER, 1371) (0.5! ppb) 0.5- ACTUAL CONCENTRATION (RAYTHEON. 1i?B) AMBIENT CONCENTRATION tUSEPA DRAFT i.l* 12?) (OJZ ppb) 40 BO TIME (HOURS 80 100 352 ------- § 227.29 - 50 - field dispersion model developed by Raytheon (1976b) and using a dilution factor of 30,000 at 4 hours, which is consistent with the 4-hour figure used in the DEIS (and in developing the present criteria). The dilution factors indicated .by the Raytheon far field model are also shown separately in Table 4. Also shown in Table 3 are rectangular exposure curves for acute toxicity to cadmium developed by the EPA Narrangansett Laboratory (Eisler, 1971). The values are for TL50 at 24 hours and 96 hours for Cranqon septemspinosa, the most sensitive of 13 marine species tested. (This species would qualify as an "appropriate sensitive" species.) A chronic toxicity level de- rived by Eisler is also shown. This is a somewhat lower indicated chronic toxicity level than would result from the use of the 0.01 "application factor" suggested in the DEIS for calculating esti- mating chronic toxicity levels from known acute toxicity levels. The area under the acute toxicity curves and the actual concentra- tion curve represent cumulative exposure over time. It might be noted that the gradient of the actual concentration curve shows a significant leveling off at approxi- mately the 24 hour period which Philadelphia has suggested as an appropriate time over which to measure short-term mixing. Comparing the acute toxicity curve and the actual con- centration curve, it can be seen that the exposure reflected in the toxicity curve for a 24-hour TLg0 is more than 10,000 times greater than the maximum exposure an organism could receive if it 1*353 ------- - 51 - TABLE 4 MINIMUM DILUTION FACTORS PREDICTED BY FAR-FIELD MODEL CRAYTHEOH 1976b) 400,000- =3 5 200,000- 100,000- 100 20 40 60 80 TIME (HOURS) H 354 ------- § 227.29 - 52 - maintained itself in the maximum of the actual concentration. Similarly, the use of the 96-hour TL50 would provide an extremely large margin of safety over the actual exposure which any organism could experience over 96 hours. Hence, on the basis of the data shown in Table 3, there would be no basis whatever to expect any acute toxicity from cadmium. Thus, there is a very large margin of safety built into the approach suggested by the City of Philadelphia. There is a similar large margin of safety for any possi- bility of chronic toxicity, as can be seen by comparing the actual concentration curve with the derived chronic toxicity curve suggested by Eisler (1971). In short, the City of Philadelphia submits that the Proposed Criteria §§ 227.27 and 227.29 as drafted by EPA carry the concept of "safety factors" to extraordinary lengths, so extraordinary as to pass beyond the bounds of any reasonable scientific caution into the relm of using proported scientific evidence as a basis to justify a somehow predetermined decision to outlaw ocean dumping. The changes suggested by the City of Philadelphia embody more than adequate "safety margins." ------- - 53 - PART 228—CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN DUMPING PROPOSED REVISION: § 228.2 Definitions (h) Experimental design means a statistical pro- cedure for allocating sampling sites which directly takes into account those factors which are likely to cause variability in the quantity or quantities being measured. Water depth, water temperature, sediment size, current speed and current direction are all factors which may need to be built into the design. Such designs in- elude (but are not limited to) factorial designs, analysis of variance designs, and latin square designs. Some criteria for acceptable experimental designs are given in; Cochran and Cox (1957), Experimental Designs; Sheffe (1959), Analysis of Variance; and other similar texts. COMMENT: In order to prove that a significant difference between stations is occurring due to ocean dumping, it is neces- sary to control all those factors which may affect the quantities being measured. These factors are controlled through an appro- priate experimental design. If factors which are known to cause variability in the quantities being measured are not included in the experi- mental design, then the influence of these uncontrolled factors can not be separated from that due to disposal in the interpre- tation of results. Appropriate experimental designs also have the prop- erty that they allow the scientist to include the maximum number of factors in the most efficient manner; i.e., the fewest number of stations that need to be measured. An experimental design should include not only site allocation and replication, but also method of analysis. orf ------- § 228.9 - 54 - PROPOSED REVISION: § 228.9 Disposal Site Monitoring The monitoring program, if deemed necessary by the Regional Administrator or the District Engineer, as ap- propriate, may include baseline or trend assessment sur- veys by EPA, NOAA, other Pederal agencies, or contractors, special studies by permittees, and the analysis and in- terpretation of data from remote or automatic sampling and/or sensing devices. The primary purposes of the monitoring program is to evaluate the impact of disposal on the marine environment by referencing trend assess- ments in affected and control areas. These assessments will reference the monitoring results to a set of base- line conditions in both areas. When disposal sites are being used on a continuing basis, such programs may consist of the following components. . . . COMMENT: It is necessary to establish genuine con- trols for monitoring the disposal area in order that trends due to conditions in the disposal area can be distinguished from trends which may be the result of more global conditions, e.g., changes in current or climate, early breakdown of thermocline, fishing pressure, etc. It should always be possible to select a control site near the disposal area. If no such control site is available, this may indicate uniqueness of the site and its unsuitability as a disposal area. A test of the genuiness of control areas should be that baseline measurements of the con- trol area do not differ in a statistically significant manner from the site when examined by appropriate multivariate techniques ------- § 228.10 - 55 - PROPOSED REVISION: § 228.10 Evaluating Disposal Impact (c) • • • . (15 Impact Category I: The effects of activities at the disposal site shall be categorized in Impact Category I when one or more of the following conditions is present and can reasonably be attributed to ocean disposal activities: (i) There is idenfcifieafele statistically signi- ficant progressive movement or accumulation, in de- tectable concentrations above normal ambient values, of any waste or waste constituent from the disposal site within 12 nautical miles of any shoreline, marine sanctuary designated under Title III of the Act, or critical area designated under section 102(c) of the Act; or (ii) The biota, sediments, or water column of the disposal site, or of any area outside the disposal site where any waste or waste constituent from the disposal site is present in detectable concentrations above normal ambient values, are adversely affected to the extent that there are statistically significant decreases in the populations of valuable commercial or recreational species, or e£-speei£ie-apeeiea-e£-Metea easentsial-fee-fche-pffepegateien-ef-sttek-apeeies- changes in abundance, composition, or diversity of the biotic com- munity which supports these valuable species, within the disposal site and such other area as compared to popu- lati ons and communities of the same organism in the control area in-eemparafele-leeafciena-eutside-sueh-site and-asea; or (v) When-any-fcexie-waateT-teexse-waafce-eensteifeuenfeT er-teexie-bypsedttete-ef-waafee-infeearaefeien-ia-identified in-fcexie-eeneeRfej"ateieft3-afeeve~nesr»a3:-ambieftfe-valttea-eafe- aide-fche-dispeaal-aite-more-tehan-feHJf-houjra-affceff-dia- pesalT COMMENT: The proposed revision to subparagraph (c)(1) should certainly be implicit in the present language, but the new 358 u ------- S 228.10 - 56 - language would make explicit the obvious point that only adverse effects upon the environment attributable to ocean disposal activities could justify placing a disposal site in Impact Category I. The proposed change to subparagraph (c)(1) is also obvious in its rationale. Unless demonstrated by appropriate tests for statistically significance, a suspected "progressive movement or accumulation" is not "identifiable" in any meaningful scientific sense. The proposed change to subparagraph (c)(1)(ii) is justified for the following reasons: In most continental shelf habitats, there is a small set of valuable commercial or recre- ational species (usually of large individual size) and a large set of species (usually of small individual size) upon which the valuable species rely to a greater or lesser degree for support. In most cases, the exact ecological relations between these two sets of species is not sufficiently known to accurately identify "specific species of biota essential to the propagation of valuable species." Because of this, it is more practical and meaningful to deal with this large set as a whole than with individual components. The three variables which measure the ecological condition of this set of species are abundance, com- position, and diversity (measured as evenness and number of species). All of these can be assessed for statistically signficant changes by multivariate methods. Furthermore, the species of this com- munity of smaller organisms generally have a shorter life cycle ------- § 228.10 - 57 - than valuable species and will consequently react more rapidly to environmental degradation. The proposed deletion of subparagraph (c)(i)(v) is justified on the grounds that (1) the use of impact categories is oriented towards the presence of long-term effects, while subparagraph (v) deals with acute effects, and (2) the presence of waste materials in toxic quantities is adequately dealt with by Subpart B of Part 227. If subparagraph (v) is to be retained, it should be revised to read: (v) When any toxic waste, toxic waste constitutent, or toxic byproduct of waste interaction is consistently identified in toxic concentrations above normal ambient values outside the disposal site more than feas 24 hours after disposal. I.# r* r% ------- § 228.11 - 58 - PROPOSED REVISION: § 22 8.11 Modification in Disposal Site Use (c) When the EPA management authority deter- mines that activities at a disposal site have placed the site in Impact Category I, the Administrator or the Regional Administrator, as the case may be, shall place such limitations on the use of the site as necessary to reduce the impacts to acceptable levels and shall undertake a more intensive monitoring program to determine whether actually significant effects are occurring or have occurred. COMMENT: When tests of statistical significance are conducted at a 951 significance level, as provided in EPA Proposed § 228.2(f), the nature of the analysis is such that "outlier" data can be expected 5% of the time which will lead to a rejection of the hypothesis that there has been no change from ambient values, even though no actual change from ambient levels has occurred. Because statistical analysis is imperfect in this sense, it is appropriate to undertake a more intensive monitoring program when statistically significant changes appear to have occurred, in order to test whether an actual change is present or whether the results are an artifact of the statistical technique. H 361 ------- s 228,13 - 59 - PROPOSED REVISION: § 228.13 Guidelines for Ocean Disposal Site Baseline and Trend Assessment Surveys Under Section 102 of the Act. The purpose of a baseline or trend assessment sur- vey is to determine the physical, chemical, geological, and biological structure of a proposed or existing dis- posal site at the time of the survey. A baseline or trend assessment survey is to be regarded as a compre- hensive synoptic and representative picture of existing conditions in the disposal and control areas; .... The field survey data collection phase of a disposal site evaluation or designation study shall be planned and conducted to obtain a body of information feefeh represen- tative of the site and control areas both at the time of study and obtained by techniques reproducible in precision and accuracy in future studies. ... An initial disposal site evaluation or designation study should provide an immediate baseline appraisal of a particular site and control areas, but it should also be regarded as the first of a series of studies to be continued as long as the site is used for waste disposal. . . . [at end] All data collected during a baseline or trend assessment sur- vey, and all analyses or assessments of such dat.i, shall be made promptly available to any person which has applied for or been or issued a permit for ocean disposal of waste materials at such disposal site, and any such person shall be promptly informed of the availability of such data, analyses or assessments. COMMENT t As discussed above in support of changes to § 228.9, the application of normal scientific method requires measurements on both disposal and control areas to identify changes which are associated with local conditions at the disposal area. The sentence added at the end of this preamble to § 228.13 is intended to make explicit a point which should be obvious in its justification. Such data should also be available, of course, to any other interested person. H 362 ------- § 228.13 - 60 - (a) Timing. Baseline or trend assessment sur- veys will be conducted with due regard for climatic and seasonal impact on stratification and other con- ditions in the upper layers of the water column. Where a choice of season is feasible, trend assessment surveys should be made during those months when pollu- tant accumulation within disposal sites is likely to be most severe, or when pollutant impacts within dis- posal sites is likely to be most noticeable. The recommended sampling seasons are; {j) period of strati- fication - after the thermoclxne has been well es- tablished, and before it begins to breakdown; and -(ii) period of mixing - before the thermocline begins to form and the water column is well mixed. ~ COMMENT: There are probably two different dispersion regimes associated with stratified and mixed conditions. During stratified conditions, much of the dispersion plume will spread along and above the thermocline, but when the water column is mixed, this layering probably does not occur. Sampling at the end of the period of stratification or mixing before it changes should measure the maximum effects typical of each period. {c) Numbers and locations of Sampling Stations. The numbers and locations of sampling stations will depend in part on the local bathymetry with minimum numbers of stations per site fixed as specified in the following sections. . . . Sampling shall be done within the dump site itself and in the contiguous area. Stiff ieienfc-eenfcifel-afcatiens-aateaide-a-iispesai-sifce shali-be-eeeapied-fee-ehaeaefeesfiee-tehe-eentsrel-asea-en- viffenmente-ate-ieaste-aa-welrb-aa-tehe-dispesai-sitee-ifeselfT Where there are known persistent currents, sampling in contiguous areas shall include at least two stations downcurrent of the dump site, and at least two stations upcurrent of the site. Control areas shall be established for as many bathymetric types as are identified in the disposal area. The number of stations xn each bathymetric type shall be equal in both affected and control areas. Subsequent to the first baseline survey, data from the site and control areas shall be compared by multivariate techniques to verify that there are no significant dif- ferences between the areas. Control stations should be W 363 ------- § 228.13 - 61 - selected to be as similar as possible to disposal site stations. The location of sampling stations shall be chosen according to a statistical experimental design to enable quantitative statements to be made about fac- tors of interest such as physiographic areas, water depth, sediment size, expected areas of sediment deposition, and so forth. COMMENT: It can be expected that properties such as water depth, sediment size, physiographic area, salinity and so forth will cause the benthic community and various waste elements being monitored to vary from station to stations. Unless these factors are taken into account in an experimental design before monitoring begins, it cannot be determined with any degree of accuracy what reasons may account for any statis- tical differences discovered. For example, if one station is found to be significantly higher in sediment concentrations of a particular heavy metal, this may be due to sediment size rather than any accumulation of waste materials. Unless sediment size was directly considered in the experimental design, no causative statement about the signficant differences found can be made. See also Comment to § 228.9. (d) Measurements in the Water Column at and Near the Dump Site. (1) Water Quality Parameters Measured. . . . (i) Afc-ene-sfcatien-neajf-fche-eenfceff-ef-fche elisjsesal-sifeeT Sampling stations for water column measurements shall be chosen according to a statis- tical experimental design which considers such factors as current flow, water mass types, tempera- ture, salinity and other pertinent hydrographic factors. In the disposal area, the timing of sampling in relation to disposal events shall also be controlled. • [S] amples of the water colwr. shall be taken for the analysis of the following parameters: H 364 ------- § 228.13 - 62 - mercury, cadmium, copper, chromium, zinc, lead, arsenic, selenium, vanadium, beryllium, nickel, pesticides, petroleum hydrocarbons, and per- sistent organohalogens. These samples shall be preserved for subsequent analysis by or under the direct supervision of EPA laboratories in accordance with the approved plan of study. . . . (3) Water Column Biota. ... At each station vertical or oblique tows with appropriately- meshed nets shall be used to assess the microzoo- plankton, fehe-nekteen, and the macrozooplankton, and a bottom trawl shall be used to assess demersal biota • • • » COMMENT: The basis for this proposed revision to subparagraph (d)(1)(i) is essentially the same as that for the proposed revision to subparagraph (c). In the absence of an appropriate statistical design, no statement of causality attri- buting statistical differences to the effects of ocean disposal can be validly made. It is, of course, especially important to control the water column sampling in the disposal area in relation to disposal activities. This consideration is especially important in sampling stations which are down-current from the dump and which will experience pulses in certain water quality para- meters as the plume drifts through. The justification for the change to subparagraph (d)(3) is as follows: Since it is the intent of the program to monitor organisms which are characteris- tic of the water column into which materials are disposed, sampling the free-swimming nekton organisms would be of little avail and add considerably to the time and cost of a survey (additional ¦H 365 ------- § 228.13 63 sampling with gill nets, purse seins, or mid-water trawls is implied by this term), Most free-swiraming organisms will be able to avoid deleterious conditions and will be transient in the area. Without very extensive sampling and experimenta- tion the impact on this group of organisms would be extremely difficult to assess. Trawl samples will capture those free- swimming forms associated with the bottom, hence the most likely to respond to material inputs (e.g., elevation of trace metal levels). (e) Measurements of the Benthic Region. (1) Bottom Sampling. Samples of the bottom shall be taken for both sediment composition and structure, and to determine the nature and numbers of benthic biota. (i) At each station sampling may consist of core samples, grab samples, dredge samples, trawls, and bottom photography or television, where available and feasible, depending on the nature of the bottom and the type of disposal site. Each type of sampling shall be replicated sufficiently to obtain a representative set of samples. The minimum numbers of replicates of successful samples at each continental shelf station for each type of device mentioned above for the base- line survey are as follows: iieaaee-nambers-of-eeplieafces-may-be-allewed-in-wafcer deeper—fchan-SSe-iRefeersT-afe—fchose-sifees-where-polltifeien impaefes-en-fehe-befeteeH-affe-anlikeiy-in-fehe-jadgmenfe-e# the-BPA-manageraent-aatherifeyT The number of replicates for subsequent monitoring shall be determined by de- tec tibility/cos t criteria analysis of the baseline data. However, the number of replicates taken at every station of each monitoring plan must be the same .... Cores Grabs Dredge Trawl Phototrawl — 3 5 3 ¦129 2-120 X60 "'"Minute tow H 36G ------- - 64 - § 228.13 (3) Nature of Bottom. The size distribution of sediments, mineral character and chemical quality of the bottom will be determined to a depth appropriate for the type of bottom. The following parameters will be measured at all stations: particle size distribution, major mineral constituents, texture, settling rate, and organic carbon. These five parameters will be mea- sured in a sub-sample from each replicate grab sample analyzed for benthic biota or trace metals. (i) At several stations near the center of the disposal site, samples of sediments shall be taken for the analysis of the following parameters: mercury, cadmium, copper, chromium, zinc, lead, arsenic, selenium, vanadium, beryllium, nickel, pesticides, persistent organohaiogens, and petroleum hydrocarbons. These samples shall be preserved for subsequent analysis by or under the direct supervision of EPA laboratories in accordance with the approved plan of study. In so far as the state-of-the-art allows, sediment samples shall be analyzed for the phase of sediments the trace metals are found in. COMMENT: With reference to the first suggested change in subparagraph (e)(1)(i), if a sample is worth taking it must be taken in replicate in order to estimate sampling error and pro- vide the basis for statistical inference. For this reason at least two trawl samples should be taken. The number of replicates is best determined from con- sideration of the level of detectability (per cent of change in a measured quantity) desired and the variance. In general, the more replicates the better the detectability. However, additional replicates add increased detectability very slowly while cost in- creases in a linear manner. The gain in detectability of five replicates as opposed to two or three may not justify increased cost. The choice of detectability levels is thus not simply a technical decision, but must also be related to cost. Attainable £ 367 ------- § 228.13 - 65 - levels of detectability will vary among different parameters. In general, chemical parameters have greater detectability than biological parameters, and higher numbers (or concentrations) show greater detectability. Decisions concerning the number of replicates must be made for each parameter on its own virtues. Unequal numbers of replicates for each station should never be built into a sampling design because tests for statis- tical differences between means is sensitive to differences in variances. Since the variance of a mean is proportional to the reciprocal of the number of replicates, a finding of significant differences between means may only be reflecting unequal numbers of replicates. With reference to subparagraph (e)(3), the composition and abundance of the benthic biota is very dependent upon sediment type. Also trace metal concentration per unit weight will be a function of sediment type. Information on sediment type should be available for each replicate in order to interpret results in a satisfactory manner. It is necessary to compare disposal areas and control areas for systematic changes in sediment, and to avoid attributing the effects of variability of sediment in the samples to disposal. As for the suggested change in subparagraph (e)(3)(i), trace metals may be located in several phases of the sediments— solution, ion exchange, organic materials, metalic coatings, crystalline solids, etc. (Gibbs, 1974). Metals from the sludge may accumulate greatly in one or some of these phases. An increase in this one phase may be a more sensitive indication of sludge impact than would total metal values. t, n ------- § 228.13 - 66 - (f) Other Measurements. (1) Hydrodynamic Features .... (i) Current Measurements. When current meters are used as the primary source of hydrodynamic data, at least 4 5_ current meter stations with at least 3 meters at depths appropriate for the observed or expected discontinuities in the water column should be operated fee-aa-ieftf-as-peaai- ble-daeing throughout the survey. Where feasible, current meters should be deployed at the initiation of the survey and recovered after its completion. Sfeafeiena-aheald-be afe-ieasfc-a-mile-apaffUr-aRd-aheeld-be-plaeed-aleng-tehe-lenf axis-ef-tehe-dttiRping-sifce-—Fef-dtunping-aifeea-meife-fehan-lQ vniies-aleng-tehe-leng-ajfisT-ene-ewsffenfe-inefcer-steafeien-eveaey 5-JBilea-aheald-be-epejfafeed. At a minimum, the five sampling stations should be placed at the four corners and the middle of a grid pattern enclosing the sampling site. This allows for a resolution of current patters throughout the study area. For large dumping sites which exhibit variable cur- rent patterns, additional current meter stations should be placed on a line between each of the corner stations. Where there are discontinuities in the surface layers e.g., due to land runoff, stations should be operated in each water mass. COMMENT: The basis for this change is that current meters placed on a grid system will provide a better resolution of horizontally varying current patterns. A line of current meters merely gives a cross-sectional picture which is sufficient only if the current patters are constant throughout the disposal site. However, near-shore continental shelf regions are usually complex hydrodynamic areas. A grid pattern also provides boundary value data for potential hydrodynamic/watcr quality modeling studies, whereas a line pattern will not. ------- APPENDIX A Comments by Raytheon Oceanographic & Environmental Services Division Regarding Elutriate Test for Dredged Spoils In the past, the EPA adopted criteria for disposal of dredged material which assayed pollution tendencies on the bulk composition of the sediments. This approach was not technically valid for many reasons and led to the joint efforts of the Army Corps and the EPA to develop a more reasonable approach to assay pollution tendencies. The result of the efforts of these two groups was the elutriate test. The elutriate test was developed to simulate hydraulic dredging conditions. The elutriate test combines one volume of the sediment to be dredged with four parts (volume) disposal site water. The combination is then mixed 30 minutes, allowed to settle one hour and filtered to remove particulate material. The filtrate (that which passes through the filter) is then subjected to several chemical analyses. A factor of 1.5 times the chemical contaminant concentration of disposal site water is then used as the criterion for determining if sediments are polluted or not. The particulate phase of the sample may or may not be analyzed. That decision is left to the discretion of the District Engineer. However, such analysis of the particulate phase is not strictly part of the elutriate test. Al H370 ------- As such, the elutriate test does not provide and should not be used to provide information on the significance of chemical contaminants present in disposal sediments once they have reached the bottom. Lee et al.t (19 75) cite several variables of the elutriate test which may alter the results, including: (1) Sediment to liquid ratio (2) Length of time of water/sediment contact (3) pH (4) Method of agitation (5) Particle size (6) Nature of sediment and water (7) Dissolved oxygen concentration Given this variability, the elutriate test is not an absolute scientific measurement to assess potential impact on dredge spoil disposal on the environment. Lee, et al. (1975) states that the elutriate test has a number of deficiencies which are related to oxygen concentration during the test and recommended the following changes be made; (1) Incorporate compressed air mixing during 30 minute shaking period, (2) Reduce volume of sediment used from 20% to 5%, (3) Perform evaluation for a wider variety of sediments and utilize the elutriate test for water column effect prediction, and (4) Abandon the bulk chemical composition criteria approach. A2 H 371 ------- The results of Lee's elutriate test experiments in- dicate that no release of cadmium, copper or lead to the water column is expected from most sediments as a result of dredge spoil deposition. Lee et al. (1975) performed an in-depth literature review. The major conclusions of the literature review are: (1) There is little technical justification for much of the disposal criteria which "label sediment concentrations 'excessive'" in many areas of the United States. The only result is the creation of substantially more expensive disposal activities. (2) "There would likely be little or no relation- ship between the bulk heavy metal content of a sediment and its potential impact on water quality during dredging and dredged material disposal. The implication that release of metals from dredged sediment is proportional to the relative concentrations in the sediments is not substantiated. This is based on the fact that heavy metals occur in a wide variety of forms in the sediments, of which many are not available to the bioligic community." (3) Inorganic mercury is not likely to enter biologic processes, but will be methylated by bacteria. This form of mercury is very toxic. However, only an estimated 1% of mercury in the environment is in the methyl form, but this represents 90% of mercury in the biota. (4) Very few studies appear in the literature concerning metal release from dredged material, however, May (1973) indicated no detectable change in cadmium and mercury concentrations in water column while Windom (1973) reported an initial cadmium increase followed by a decrease with time and mercury levels were not signifi- cantly above ambient water column concentrations. H 372 ------- There thus appears to be ample evidence that disposal of dredge spoil in the marine environment has little or no im- pact on the water column. However, neither Lee's study, the development of the elutriate test, nor the DEIS considers the impact of dredge spoil disposal on the sediments. This would appear to be an area of potentially major impact, both in sediment chemistry and benthic infaunal community structure. Permissible barge levels of mercury and cadmium are defined inconsistently for dredge spoils versus other waste materials. In the case of other waste materials, permissible levels are defined for a liquid phase and solid phase as parti- tioned by a 0.45 micron filter. For dredge spoils, values are determined from the elutriate test from which only the filtrate is analyzed, while the settled residue may or may not be analyzed, as decided by the District Engineer for the con- stituents he deems important. Thus, in the case of waste materials other than dredge spoils, the total amount of mercury and cadmium is subject to regulation; in dredge spoils, *7 only a small fraction. The inconsistency is of potentially great importance. The results presented in Table 5 show that the disposal of dredge spoil introduces equal or greater amounts of mercury and cadmium compounds into the marine environment. Dredge spoil */ The DEIS (p. 61) claims that the disposal of dredge spoil will have a "scrubbing" effect on the water column. But no mention is made of concentrations in the sediment. A4 H 373 ------- disposal introduces 45 to 115 times more cadmium to the ocean than does sludge disposal. The massloadings of mercury are similar for the two types of disposal. Mueller et al. (1976) estimated the percent contribution by pollutant into the New York Bight Apex. A graphic repre- sentation of these data appears in Table 6 and Table 7. Dredge spoils are the source of most of the pollution attributed to barging in the New York Bight. In fact, they estimate only about 6% of the heavy metals in barged materials come from sewage sludge. In view of this evidence, dredge spoils should be subjected to whatever standards are applied to other waste materials with regard to total possible impact. A5 H 1 r-1 r ------- TABLE S MASSLOADING AND BARGE CONCENTRATIONS OF DREDGE SPOILS AND SEWAGE SLUDGE FOR TWO DISPOSAL SITES. New York Bight Apex Philadelphia Dredge Spoil Sewage Sludge Sewage Sludge Metal C M C M C M Cadmium 62 2 3.7 0.044 8.0 0.017 Mercury- 0.40 0.013 1.1 0.013 2.2 0.005 C = barge concentration (ppta) H = massloading (metric tons/day) From Mueller et al., 1275, A6 H 1751 ------- TABLE 6 (Page 1 of 3) BARGED WASTES IN THE NEW YORK BIGHT 1960-1975 woo 28.9 SEWAGE SLUDGE 2X2% ACID WASTES CELLAR DIRT 10G1 «2.4*i DREDGE spoil «y20 24.8% SfclVAGE SLUDGE CHEMICAL WASTES 46.2% DREDGE 22.9% ACtO WASTES SPOIL CELLAR DIRT , 1952 22,0% SEWAGE SLUOGE 55.0% DREDGE SPOIL CHEMICAL WASTES 16,t% ACID WASTE CELLAR O RT 1963 CHEMICAL WASTE 22.5 SEWAGE SLUDGE 30.6* ACID WASTE 33,0* DREDGE SPOIL CELLAR OlRT 19G4 24,4% SEWAGE SLUDGE 51.256 DREDGE SPOIL i9.a* ACID WASTES CELLAR D RT 1965 27,8% SEWAGE SLUDGE 45.7% DREDGE SPOIL 19.0% ACID WASTE CELLAR DIRT From Mueller et al., 1975. ™ H 376 ------- TABLE 6 (Page 2 of 3) BARGED WASTES IN THE NEW YORK BIGHT 1960-1975 32.2% SCWACE SLUOGC 43.5% OHCOGE STOIL 21.9? ACID WASTE 1967 60. v40 SOT 26.2* SEWAGE SLUDGE 14.!* AGIO sJVASTES I SG.6% OftEOGE spoil rzo Cellar DIRT 3.1* CELLAR DIRT 1968 - 31* SEWAGE SLUDGE 44% OHEDGE SPOIL CHEMICAL WASTES 21.7* ACID WASTES CELLAR DIRT 1969 0.5* CHEMICAL WASTES BOr . te,s% 24.3% SEWAGE SLUDGE 54.6* ORCOGE SPOIL CELLAR DIRT 1970 2* HCMtCAi. - ASTE 38.4* SEWAGE SLUDGE 35.7* OREOGE SPOIL 18J* ACtO WASTE CELLAR DIRT 1971 16.9* SEWAGE SLUDGE 66.6* OREOGE SPOIL 12.5* ACID WASTE CHEMICAL WASTE CELLAR DIRT A8 H 377 ------- TABLE 6 (Page *3 of 3) BARGED WASTES IN THE NEW YORK BIGHT 1960-1975 1972 18.2* SEWAGE SLUDGE 58.7% DREDGE SPOIL 14.3* ACID WASTES CELLAR DIRT 1974 33.3% SEWAGE SLUQGE 20.4% ACIO WASTES 35.1 % OREOGE SPOIL CELLAR DIRT 1973 305% SEWAGE SLUOGE 44.3* DREDGE SPOIL CHEMICAL WASTES 17 ACID WASTES CELLAR OIRT 1975 19.5% SEWAGE SLUOGE CHEMICAL WASTES 11.4% ACID WASTE A9 H 370 ------- TABLE 7 WASTES RELEASED IN NEW YORK BIGHT - CUBIC METERS YEAR DREDGE SEWAGE CHEMICAL ACID CELLAR MATERIAL SLUDGE WASTES WASTES DIRT 1960 429,000 2,920,000 2,350,000 565,000 1961 4,769,000 2,560,000 5,250 2,370,000 619,000 1962 6,740,000 2,770,000 9,940 1,950,000 617,000 1963 5,490,000 3,256,000 528,000 4,430,000 775,000 1964 6,530,000 3,118,000 2,530,000 578,000 19.65 4,950,000 2,950,000 ___ 2,010,000 698,000 1966 4,350,000 3,210,000 2,180,000 243,000 1967 7,040,000 3,260,000 115 1,760,000 389,000 1968 4,860,000 3,430,000 63,500 2,400,000 306,000 1969 7,550,000 3,410,000 65,700 2,330,000 483,000 1970 3,750,000 4,040,000 122,000 1,990,000 609,000 1971 11,500,000 2,930,000 170,000 2,160,000 517,000 1972 9,770,000 3,020,000 568,000 2,380,000 741,000 1973 6,220,000 4,280,000 508,000 2,400,000 632,000 1974 3,910,000 3,720,000 447,000 2,270,000 801,196 •1975 4,660,000 3,650,000 550,000 1,990,000 130,000 From Mueller, et al., 1975. A10 H 379 ------- APPENDIX B Summary of Toxicity Information for Cadmium and Inorganic Mercury A summary of available toxicity information for cadmium and inorganic mercury is shown on Tables 8-10 on the following pages. For a full discussion of cadmium toxicity and marine organisms, see Eisler, 1971. B1 H 380 ------- TABLE 8 EFFECTS OF ORGANIC AND INORGANIC MERCURY ON MARINE ORGANISMS Effects Cone. ug/1 Reference* "Fhytooanad" 5 u ~, HgCl, aethyl-Bg-Cl ethyl-Hg-Cl naphthyl-Hg-Cl 7 u length 20-min-LC-l00 20-nin-LC-100 20-mln-LC-100 ,20-Bin-LC-lCO 3320 220 130 129 Hoffiaann, 1950 Fhytoplanktoa, natural population Inhibition C-14 uptake HgCl, + CH.Hg 1 •c 0.75 Esauer and Martin. 1972a Zooplaakton, freshly caught BgCLi 150-oin-LC-lOQ oaehyl-Hg-Cl 75-min-LC-100 •thyl-Hg-Cl 40-min-LC-lOO 2000 2000 2000 Kotatorian •thyl-Hg-Cl 3-Bia-LC-lD0 8-aHn-LC-l.OO 3000 2000 Copepod nauplii «thyl-Hg-Cl 6-oin-LC-100 14-ain-LC-lQO 3000 2000 Folychaetes larvae •thyl-Hg-Cl 18-ain-LC-100 2000 CkteMydomoiiHi ip. HgClj PMA 301 growth inhibition 301 growth inhibition 101 growth inhibition 8 0.5 0,3 Huszl, 1972 Chlo/itLtx ip. BgCli PMA. 501 growth inhibition 301 growth inhibition 101 growth inhibition 7 0.5 0.06 Pk*toia.c£yl(ta HUca'tau-Cu* BgClt SOX growth, inhibition FMA 501 growth inhibition 201 growth, inhibition. 16 4 0.06 PlumtuUa ettgani HgCl, aethyl-Hg-Cl l»-h-LC-50 18-h-LC-50 3120 44 Boney tt tU., 1959 FXA - Fhenylmercurie acetate. From Bernhard and Zattera, 1975. B2 H 381 ------- TABLE 9 EFFECTS OF MERCURIC CHLORIDE ON MARINE ORGANISMS £! . 'hatodactytum t*u.c.oAnutum "Vkytononad" Phytoplankton UacJiotyitU pyxJ-iiia LaminaAia hyptAboAta PotyiipkorUa ilutUculoia yiuttajuia tttgam Invertebrates Zoopl&nxton Balaniu' batanoidu Buguta nvuLtxna ELimin-Liu A p. Spiilonbii tanltoia WaXtJuipoia cueullata iiXtnt Vitiduta Crustaceans Acajutia claa&i kuttmia iaMi.no. CaJicU.niu aaernu larvae adult C. matnai, adult CAangoit ciangon larvae adult Hornoaila gamtaJlLii larvae NiAotta ipiiUpii 0phMiOtA.oc.ha ip. PanduZuA montagiu. Una pugZtatoi, females under stress, 5*C, 51.S Molluscs CaJidiua tdu.lt C«uioitAia commntiaiii larvae C. viAgi/Uca, larvae UyCHuA tduLii ptanlUatui, larvae OitAia tduJXi larvae adult Ventu japonica Ei2isy AngtUila japoiu.ca Fanduliu htXtAocLLtui Effects Growth Inhibition 20-min-LC-100 natural population, Inhibi- tion C-14 uptake 501 reduction of photo- synthesis growth Inhibition reduction of respiration sporellngs LC-50. sporellnzs growth lnhlb. after 24 h exp. freshly caught 150-mln-LC- 100 A8-h-LC-90 larvae, 2-h-LC-50 2.5-h-LC-50 larvae, 2-h-LC-50 2-h-LC-50 malformation of tentacles after 3 months 2.5-h-LC-50 2.5-h-LC-50 2-h-LC-50 16-h-LC-50 (dubious res.) 50-h-LC-50 48-h-ET-50 48-h-LC-50 48-h-ET-50 48-hrLC-50 48-h-ET-50 24-h-LC-50 30-h-LC-50 48-h-LC-50 60-d-LC-0 8-d-LC-50 48-h-LC-50 2-h-LC-50 48-h-LC-50 48-h-LC-O 2-h-LC-50 48-h-ET-50 48-h.-ET-50 C6-10)-d-LC-100 highest conc. tolerated for more than 50 h 96-h-LC-50 enzyme inhibition (xanthine oxld.) Cone. ug/1 7 3300 1 50 10 2500 1750 120 2000 1000 200 300 140 120 >1 50 800,000 1,800,000 100 10,000 14 1200. 1000 10 5700 6000 33 700 10 1000 180 180 10,000 180,000 5.6 1 13,000 1 4200 300 20 310 700 References Nuzzl, 1972 Hoffmann, 1950 Knauer and Martin, 1972a Clendennlng and North, 73c Hopkins and Kaln, 1971 Boney, 1971 Hoffmann, 1950 Clarke. 1947 Wisely and BUck, 1967 Corner and Sparrow, 1956 Wisely and Bllck, 1967 (Carbe, 1972 Corner and Sparrow, 1956 Wisely and Bllck. 1967 Brown and Ahsanullah, 1971 Connor, 1972a Porcmann, 1968 Connor, 1972 Portmann, 1968 Connor, 1972 Barnes and Stanbury, 1948 Brown and Ahsanullah, 1971 Portmann, 1968 Vemberg and Vernberg, 1972 Portmann, 1968 Wisely and Bllck, 1967 Calabrese tX. at., 1973 Connor, 1972 Irukalama it at., 1962 Oshima, 1931 Jacklm it at., 1970 Froa Bernard and Zattera, 1975. B3 H 382 ------- TABLE 10 EFFECTS OF CADMIUM OK MARINE ORGANISMS Effects Cone. wg/1 References Xav«rtebr*t«a (oKbtii 96-h-LC-SO 820 Eialex, 1971 Elf.tnt vikA100 3 -ooutfaa HVit*U v-Uitui 96-MX-aO 11,100 EUler, 1971 CzAcJ.nu.4 mat*&6 96-h-LC-SO 4100 Eliler, 1971 C\a*gon ttpitnspinna 96-h-I.C-50 320 F»j)UAIM lon§ica\p*4 96-h-LC-JO 320 falatmintil* vutgaiUi 95-H-LC-50 420 ClsnkoitAia viitgiiUta 56-d-TL-a 200 USDI, 1968 iOS-d-tt-o 100 119-d-LC-100 200 Shujtar and Prlnglo, 1969 Ui/a Meiiatia 96-h-LC-50 2200 Eliler, 1971 96-d-LC-O 100 Pringle t£ ai., 1968 Uyzlin4 idutAA 96-fc-LC-50 - 23,000 EUlar. 1971 HanasUut ebiotvtut 96-h-lC-SO 10,500 UAOta,tpini cinetta 96-h-LC-50 6600 n*u Cyp*J.no4en vtuUtaafui 96-h-LC-50 50,000 EUler. 1971 Fimdu^iu kttviatliXiit 96-h-LC-SO 55,000 96-h-LC-SO 27,000 Jack la U al., 1970 ¦fear 1 h pathological change* Intestine 50,000 Gardner and YevlcH, 1970 F. majoJCjU 96-h-LC-50 21,000 Etaler, 1971 From Bernhard and Zattera, 1975. B4 H 383 ------- APPENDIX C BIBLIOGRAPHIC REFERENCES * Barnes, H. and F.A. Stanbury. 19 48. The toxic action of copper and mercury salts both separately and when mixed on the harpacticoid copepod, Nitocora spinipes (Beeck). J. Exp. Biol. 25: 270-275. Bernhard, M, and A. Zattera. 197 5. Major pollutants in the marine environment. In: Marine pollution and marine waste disposal, p. 19 5-300. * Boney, A.D. 1971. Sub-lethal effects of mercury on marine algae. Mar. Poll. Biol. 2:'69-71. * Boney, A.D., E.D.S. Corner, and B.W.P. Sparrow. 19 59. The effects of various poisons on the growth and viability of sporeling of the red algae Plumaria elegans (Banneu) Schm. Biochem. Pharmac. 2: 37-49. * Brown, B. and M. Ahsanullah. 1971. Effect of heavy metals on mortality ana growth. Marine Poll. Bull. 2: 182-187. Brungs, W.A. 1969. Chronic toxicity of zinc to the fathead minnow, Pimephales oromelas Rafinesque. Trans. Amer. Fish. Soc. 98: 272-279. * Calabrese, A., R.S. Collier, D.A. Nelson and J.R. Mclnnes. 1973. The toxicity of heavy metals to embryos of the American oyster (Crassostrea virginica). Marine Biol'. 18: 162-166. Calloway, R.J., A.M. Teeter, D.W. Browne and G.R. Ditsworth. 197 6. Preliminary analysis of the dispersion of sewage sludge discharged from vessels to New York Bight waters. Limnol. and Oceanogr. Special Symposium Volume. In press. * Clarke, G.L. 1947. Poisoning and recovery in barnacles and mussles. Biol. Bull. 92: 73-91, * Clendenning, X.A. and W.J. North. 1960. Effects of wastes on the grant kelps, Macrocystis pyrifera. In: E.A. Pearson, ed. First intern, conf. wastes disposal in the marine environment. Pergamon Press, New York, p. 82-91. Cochran, W.G. and G.M. Cox. 19 57. Experimental designs. John Wiley and Sons, Inc., New York. 611 p. * Connor, P.M. 1972. Acute toxicity of heavy metals to some marine larvae. Mar. Poll. Bull. 3: 190-19 2. * as cited in Bernhard and Zattera, 1975. CI ------- * Corner, E.D.S. and B.W. Sparrow. 1956. The modes of action of toxic agents I Observations on the poisoning of certain crustaceans by Cu and Hg. J. Mar. Biol, Assn. U.K. 35: 531-548. Eisler, R. 1971. Cadmium poisoning in Fundulus heteroclitus (Pisces; Cyprinodontidae) and other marine organisms» J. Pish. Res. Bd. Canada. 28: 1225-1234. * Gardner, B.R. and P.P Yevich. 1970. Histological and hema- tological responses of an estuarine teleost to cadmium. J. Pish. Res. Bd. Canada. 27: 2185—219 6. Gibbs, R.J. 1974. Principles of studying suspended materials in water. In: R.J. Gibbs, ed. Suspended solids in water. Plenum Press, New York. p. 3-16. * Hoffman, C. 1950. Beitrage zur kenntnis der wirkung von giften auf marine organismen. Kieler Meeresforschungen Bd. VII 1: 38-52. * Hopkins, R. and J.M. Kain. 1971. The effect of marine pollutants on Laminaria hvperborea. Mar. Poll. Bull. 2: 75-77. * Irukaiama, K., F. Kai, F. Fusujiki, and T. Kondo. 1962. Studies on the causative agent of Minimata disease. III. Industrial wastes containing mercury compounds from Minimata factory. Kummamoto Med. Journal. 15: 57-68. * Jackim, E., J.M. Hamlin, and T. Sonis. 1970. Effects of metal poisoning in five liver enzymes in the killifish. (Fundulus heteroclitus). J. Fish. Res. Bd. Canada. 27: 383-390. * Karbe, L. 1972. Marine Hydroiden als testorganismen zur prufung der toxizitat von wasserstoffen. Die wirkung von schwermetallen auf kolonein von Eirene viridula. Marine Biol. 12: 316-328. * Kaauer, G.A. and J.H. Martin. 1972. Mercury in a marine pelagic food chain. Limnol. Oceanogr. 17: 868-876. Lear, D.W. 1973. Supplement Report. Environmental survey of two interim dump sites, Middle Atlantic Bight. USEPA Region III, Philadelphia, PA. Lear, D.W. 1974. Environmental survey of two interim dump sites, Middle Atlantic Bight. Supplemental Report. USEPA, Region III, Philadelphia, PA. C2 H 385 ------- Lear, D.W. 1976. Testimony for hearing, City of Philadelphia ocean disposal permit, Georgetown, Delaware. Lear, D.W. 1973. Environmental survey of an interim ocean dump site. USEPA Region III, Philadelphia, PA. Lear, D.W. and G.C. Pesch. 1975. Effects of ocean disposal activities on mid-continental shelf environment off Delaware and Maryland. USEPA Region III, Philadelphia, PA. Lear, D.W., S.K. Smith, and M.L. O'Malley. 1974. Environmental survey of two interim dump sites, Middle Atlantic Bight. Operation "Fetch". USEPA Region III, Philadelphia, PA. Lee, G.F., M.D. Piwoni, J.M. Lopez, G.M. Mariani, J.S. Richardson, D.H. Homer and F. Saleh. Research study for the development of dredged material disposal criteria. Prepared for: Environmental Effects Laboratory, U.S. Army Engineer Waterways Experiment Station, Vicksburg, Mississippi. Marine Research, inc. 1975. Analyses of operation "Midwatch" benthic invertebrates. Marine Research, Inc., Falmouth, MAss. Marine Research, Inc. 1976. Analyses of operation "Dragnet" benthic invertebrates. Marine Research, inc., Falmouth, Mass. May, E.E. 1973. Environmental effects of hydraulic dredging in estuaries. Alabama Mar. Res. Bull. 9: 1-85. * Pringle, B.H., D .E. Hissong, E.L. Katz, and S:T. Mulawica. 19 68. Trace metal accumulation by estuarine molluscs. J. Sanitary Engineering Division 5A3: 455-475. Raytheon. 1976a. Environmental survey of a proposed alternate disposal site in the outer New York Bight. Raytheon Company, Oceanographic and Environmental Services, Portsmouth, RI. Raytheon, 1976b. Far-field sewage sludge release simulation - Mid-Atlantic Bight. Raytheon Company, Oceanographic and Environmental Services, Portsmouth, RI. Scheffe', H. 1959. The analysis of variance,. John Wiley and Sons, Inc., New York. 1477p. C3 H 38G ------- Shuster, C.N. Jr. and B.H. Fringle. 1964. Trace metal accumulation by the American oyster, Crassostrea virginica. Proc. Nat. Shellfish. Assoc. 59: 91-103. Udell, H.F.T. Doheny, J. Zarudsky, J. Keene. 1974. Ocean dumping of sewage sludge; its effect on the South Shore of Long Island. A status report. Contribution No. 11., Town of Hempstead, Dept. of Conservation & Waterways Marine Laboratory, Point Lookout, New York. U.S. Army Corps of Engineers. 1976. Ecological evaluation of proposed discharge of dredged or fill material into navigable waters. Environmental Effects Laboratory, Vicksburg, Miss. U.S.D.I. 1968. Water quality criteria. F.W.P.C.A., Washington. 234p. USEPA. 1976. Proposed revisions to ocean dumping criteria- Draft environmental impact statement. Oil and Special Materials Control Division, Office of Water Program Operations. Vaccaro, R.F., G.D, Grice, G.T. Rowe, and P.H. Wiebe. 1972. Acid-iron waste disposal and the summer distribution of standing crops in the New York Bight. Water Research 6:231-256. Vernberg, W.B. and J. Vernberg. 1972. The synergistic effects of temperature, salinity and mercury on the survival and metabolism of the adult fiddler crab Uca pugilator. Fish. Bull. U.S. 70:415-420. Windom, H.L. 1973. Water quality aspects of dredging and dredge spoil disposal in estuarine environments. Skidaway Inst. Oceanogr., Savannah, GA 19p. Wisely, B. and R.A.P. Blick. 1967. Mortality of marine invertebrate larvae in mercury, copper and zinc solutions. Austr. J. Mar. Freshwater Res. 18:63-72. C4 H ------- #48 Extensive and detailed comments were received from the City of Philadelphia, Pennsylvania. Following are our responses to their comments: General Comments 1. Interim permits are issued for materials which do not meet the environmental impact criteria (Subpart B), but for which there is no feasible alternative at the present time. Whether or not any harm has been demonstrated to have occurred from dumping of a partic- ular material is not pertinent if the material does not meet the environmental impact criteria (Subpart B), Not meeting the Sub- part B criteria makes it mandatory that a material be eliminated from ocean dumping as rapidly as possible. Ocean dumping is most certainly disfavored when wastes do not meet the Subpart B criteria and a dumper is, therefore, operating under an interim permit. In those cases where a waste does meet the Subpart B criteria, there are other statutory factors which must be taken into account in making a determination on whether or not to issue a permit. Meeting the Subpart B criteria does not mean that ocean dumping is, per se, superior to all other means of disposal, merely that it is environmentally acceptable in terms of its impact on the marine environment. The provisions of Section 227. 16(c) merely give EPA the discretion to require that a permittee continue his efforts to find and use the best disposal alternative which has the least overall envi- ronmental impact at reasonable cost. In some cases this alternative may continue to be ocean dumping, in other cases improvements in process or waste treatment technology may indicate the use of another means of disposal. 380 ------- #48 2 2. The ocean outfall criteria are presently in the final stages of development. EPA is aware of the need for comparability between the two sets of criteria, and is making every effort to achieve this. 3. The final regulations apply the same standards to dredged material as are applied to other dumped materials. Specific Comments 220 - 222. - Responses to comments on these Sections are included in the Preamble. 223. - This Section is not being revised at the present time. Revisions will be proposed in the near future. 227. 2 - This suggestion is accepted and the criteria have been changed accordingly. 227. 6 - This Section has been redrafted in response to these and other comments. The redraft and the report on the technical workshop (Appendix G) respond to these comments. 227. 7 - The suggestion does, indeed, more closely reflect the intent of the Act, and a change has been made accordingly. 227. 10 - The comment is accepted and an appropriate change has been made in the criteria. 227. 15 - The comment is accepted. There is no intent to require treatment beyond what is required for the protection of the environ- ment, at least within the scope of these regulations. •H 389 ------- #48 3 227, 16 - The language recommended for deletion may be superfluous, however, we believe that it is important to reemphasize at this point all the considerations that may be involved in arriving at any partic- ular determination on a specific ocean dumping permit application. It is most appropriate to do this in the context of determination of the overall need for ocean dumping. 227. 17 - The recommendation is accepted and additional language has been included on the assessment of impact to incorporate the concerns indicated. 227. 18 - The language has been included in Section 227. 19 requir- ing the type of assessment indicated as part of the overall considera- tions to be made. We do not think that adding "reasonably be expected" within Section 227. 18 would add anything to the regulation. 227. 19 - The suggestion is accepted and language is included to require the assessment of impact of alternative methods as well as ocean disposal. 227. 27 - Revisions have been made in this Section to allow the use of a different application factor where there is reasonable scientific evidence to support its use. 227. 19 - We do not see any advantage in using the term "short term" instead of "initial". The rationale for the choice of a 4-hour initial mixing period is presented in the EIS. There is no factual evidence presented in these comments to justify a longer period. Provision has been made for the use of a different approach if reasonable scientific evidence is presented to support it. ------- #48 4 228. 2 - EPA staff is aware of the advantages and the pitfalls of using statistical approaches. We do not believe that all surveys should be blindly designed to meet some pre-determined statistical criteria which may not be applicable, and which would certainly be more expensive than standard inductive approaches relying on scientific judgment. However, if the City of Philadelphia feels strongly that all surveys should be designed in such a manner, we suggest that they design and conduct their monitoring surveys in this fashion, and demonstrate their advantages. 228. 9 - We feel the present language is adequate to cover the scope of the program. The baseline survey guidelines provide for the establishment of control stations during the baseline surveys. 228. 10 - We do not believe that statistical significance is an, appropriate criterion to use in terms of progressive movement or accumulation of waste materials above normal ambient values. The sampling requirement to demonstrate such statistical signifi- cance would probably be far beyond our capability to survey properly. We do not feel that the use of a diversity index in terms of the abun- dance, composition or diversity of the biotic community which supports these valuable species is sufficiently well developed to provide a rea- sonable basis for regulation. The other proposed changes, at least in concept, appear to be definite improvements and we have made appro- priate changes in the regulation. Ji 381 ------- #48 5 228. 11 - We recognize the limitations in using statistics to make decisions. There is only one place in the criteria for modifying disposal sites use that relies on statistical analysis. We do not feel that a decision would be made to modify use of a site without good and sufficient evidence in addition to any statistical artifacts. 228. 13 - Changes recommended in the guidelines do adequately specify that sampling is to be conducted both in the site itself and in control stations outside the site. We do not feel that it is necessary to further specify the recommendations. The results of studies from baseline and trend assessment surveys will be incorporated into environmental impact statements on the site designation and upon periodic reports submitted as part of the Annual Report to Congress or as supplemental reports. Additional explicit provision for providing data is not needed in this context. On timing, the regulations clearly specify that the surveys are to be done when the pollutant accumulation within the disposal site is likely to be most severe or when the impact is most noticeable. We believe this is adequate guidance for timing and that the specification with regard to the thermocline, the existence or nonexistence of a thermocline, being the guiding parameter is not appropriate. H 392 ------- SHELL OIL COMPANY ONE SHELL PLAZA P.O. BOX 2463 HOUSTON, TEXAS 77001 September 22, 1976 Environmental Protection Agency 401 M Street, S. W. Washington, D. C. 20460 Attention Mr. T. A. Wastler, Chief Marine Protection Branch Oil & Special Materials Control Division (WH-548) Gentlemen: The following comments and recommendations are offered on the proposed revisions to Ocean Dumping Regulations and Criteria, as published in the June 28, 1976, "Federal Register" at page 26643 et seq. There are several sections of the proposed ocean dumping regulations which would unnecessarily restrict ocean disposal even when the disposal operation was environmentally acceptable. The regulations would require the use of land-based disposal options, if available, regardless of cost or other ecological considerations. This has the effect of transferring wastes to other media and has a considerable inflationary potential. This inflationary potential in total could easily exceed$100,000,000 of capital investments and necessitate an Inflationary Impact Statement (EPA implementation of 0MB Circular A-107, January 28, 1975). By way of supporting this view, we estimate that at one location alone Shell will commit approximately $25,000,000 capital to discontinue ocean disposal of biosolid and organic chloride wastes. The waste disposal demands of an industrialized society must be reconciled with the public need to provide balanced protection of the various segments of the environment and with a need to conserve natural resources including raw materials and capital. Revisions to the ocean disposal regu- lations afford an opportunity to recognize these interrelationships and thereby minimize unnecessary and inflationary disposal standards which will not produce commensurate benefits to the environment. In our opinion, ocean disposal should be permitted when it can be reasonably demonstrated that no adverse effects will result from the disposal operation since there is a need for environmentally acceptable disposal methods. Under the proposed regulations, general and special permits are seen to satisfy these requirements. In these cases, ocean disposal should be authorized for routine use quite irrespective of the availability of land-based disposal alternatives. With this type of disposal operation, it would not be necessary to conduct trend assessments (§ 228.9, 228.10, 228.13). H 393 ------- 2 Proposed ocean disposal operations which do not meet the environmental criteria of general or special permits should be evaluated relative to land-based disposal options. When justified, considering the total environment and relative cost/benefits, these disposal operations should be authorized under interim or research permits. Cases of long-term operation under these circum- stances could justify trend assessment. However, the assessment should be developed on a case-by-case basis rather than by the overly detailed proposals of Section 228.13. The proposal to terminate most interim permits after April 23, 1978 appears contrary to Section 2 of the Marine Protection, Research and Sanctuaries Act of 1972 (PL 92-532) which speaks to control, not termination of ocean disposal. There should, indeed must, be provision in the ocean disposal regulations to conduct interim ocean disposal beyond 1978 when justified by a thorough and balanced appraisal. A final general comment relates to oil and gas exploration and production well drilling operations. Normally, the discharge of drilling mud and cuttings is regulated through NPDES permits. On occasion, however, lease stipulations prohibit these discharges at the well site; collection and barging to an appropriate location for disposal is then necessary, which subjects the disposal of these materials to ocean dumping regulations. In such situations, these proposed rules can pose a serious difficulty regarding the selection of the dump site, for an existing approved site may not be reasonably proximate. Approval of a new site for dumping these relatively innocuous materials requires following an arduous and time-consuming procedure which could easily take a full year or more. This situation illustrates the need for regulations to accommodate the discharge of small volumes of essen- tially harmless materials such as the properly formulated drilling mud and the earth cuttings we mention. Bearing in mind that exploration and production drilling operations usually occur in areas where the sea floor is of natural materials - sands or rock - and the volumes are small - 1,000 to 1,500 cubic yards per well - a simpler and environmentally reasonable site approval procedure can and should be established. It would appear appropriate to regulate such discharges under the provisions of general permits for ocean dumping but without requiring unduly detailed environmental assessments for dump site designation. Thus, where small volumes of relatively innocuous materials are involved, as is the case here, proper environmental control is established, and the timely development of needed oil and gas resources is not seriously delayed by lengthy administrative procedures, including site designation. The limited scope and minimal environmental consequence of including the "off-site" discharge of drilling mud and cuttings under general permitting procedures is justifiable, and we recommend appropriate provisions be established in these regulations. In the following paragraphs, we have provided our comments on specific sections of the proposed regulations. H 394 ------- 3 Section 221.2 - Other information. Comment: This paragraph provides that, if the reviewing authority determines such information is necessary, additional information can be required pursuant to a permit application. Further, the time limitations relative to permit processing shall not apply until such additional information is filed. Unless a finite period is established during which a reviewing authority must determine the need for and evaluate the sufficiency of supplementary information, an application can be needlessly delayed or deferred. Recommendation: We recommend that up to thirty days be allowed for any reviewing authority to request additional information pursuant to a permit application. The time required for response to a request for such additional information shall be deducted from this 30-day period. To satisfy this need, we suggest the following sentence be included at the end of Section 221.2: " However, the time limitation of §222.1 shall automatically commence 30 days after any permit application is received, exclusive of that time required for the applicant to respond to a reasonable request for additional information under this Section 221.2." Section 222.10 - Appeal to adjudicatory hearing. Comment: Provision is made in this section for the administrator to convene an adjudicatory hearing on his determination that the request presents substantial issues of public interest. It is our opinion that adjudicatory hearings could be justified also on the basis of private interests. Therefore, we recommend that applicable paragraphs of Section 222.10 be expanded to include justification of hearings on the basis of both public and private interests. Recommendations: It is recommended that the underlined words be added to the following paragraphs: 222.10(b) ...determines that such request presents substantial issues of public or private interest,... 222.10(d) ...or that such request does not present substantial issues of public or private interest,... H 395 ------- 4 Section 227.2 - Materials which satisfy the environmental impact criteria of Subpart B, Comment: As pointed out in our general comments, it is our view that ocean disposal operations should be judged on their own merits, quite irrespective of the availability of land-based disposal operations. Therefore, ocean disposal of materials which satisfy the environmental impact criteria should be allowed without added qualification. Inclusion of paragraphs 227.2(a)(1) and 227.2(b)(3) in the ocean disposal criteria would have the effect of phasing out ocean disposal of marine-compatible wastes. By coupling the acceptability of ocean disposal with the availability of land-based disposal alternatives, the adoption of land-based disposal methods would be required even at the expense of the environment, consumption of scarce raw materials, or at added cost. This section of the regulations could be interpreted to mean that all ocean dumping permits would have provisions to develop land-based disposal alternatives and to use those options once available. Given these circumstances, there is no incentive to develop disposal technology involving ocean disposal which would prove the most considerate balance between environmental protection, the conservation of natural resources, and capital. Recoimiendation: It is recommended that paragraphs 227.2(a)(1) and 227.2(b)(3) be deleted and that the language of paragraph 227.2 be changed to reflect deletion of paragraphs 227.2(a)(1) and 227.2(b)(3). Section 227.6(b)(3) - Constituents prohibited as other than trace. Comment: This paragraph prohibits the transport of toxic concentrations of organohalogens under special permit for dumping [disposition of a material - § 220.2(e)], Taken literally, this would preclude transport of toxic concen- trations of organohalogens for at-sea incineration [disposition of the material] even though only non-toxic concentrations of organohalogens would ultimately reach the ocean. The important issue is not the transport of the organohalogen compounds but the potential for such materials reaching the ocean. For the direct dispersion of wastes containing traces of organo- halogens, it should be recognized that discharge of wastes from submerged dispersion nozzles results in an immediate dilution of several hundred fold. Under permitted conditions for Shell's ocean disposal of biosolids, the waste is diluted more than 800 fold in the first two minutes after release from the dispersion nozzle. The principle of dilution is implicit in the provisions of paragraph 227.6(b)(4) where an allowance for initial mixing (1:100) is used to evaluate sheen for oil and grease. The concept is supported further when one considers that toxicity is determined by extended (96 hour) exposures of test species. Higher waste .«3SC ------- 5 concentrations can be tolerated for shorter exposures. Therefore, it would be safe to relate the disposal practice to a concentration of organohalogens present a short time after contact of fallout or dispersion in the ocean. We note that discharges of trace contaminants including traces of organohalogens are regulated under 227.6(d)(2) which provides for dilution over a four-hour period. In the event that an added measure of control on the disposal of wastes containing traces of organohalogens is necessary, we recommend the following paragraph to replace paragraph 227.6(b)(3). Recommendation: We recommend that paragraph 227.6(b)(3) be revised to read: "The concentration of organohalogen constituents in the water column shall be less than a toxic concentration after allowance for initial (2-5 minute) dilution in the case of direct discharge of the waste, or mixing to a depth of one meter in the fallout region in the case of at-sea incineration." Section 227.16 - Basis for determination of need for ocean dumping. Comments: Ocean disposal of materials which do not satisfy the environmental impact criteria should be evaluated relative to other disposal methods. However, certain provisions of Subpart C bias this evaluation. Prime consideration is to be given to the environmental benefits of land-based disposal alternatives relative to their costs or energy considerations [3 227.16(b)]. Section 102(a)(G) of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA) implies a more balanced approach to consider general public interests. We share the concern of the National Research Council (NRC) which called for a "balance and equitable allocation of costs and benefits" in regu- lations pertaining to disposal of residual material ("Disposal in the Marine Environment," NRC, 1976). Recommendation: It is recommended that the phrase "which need not be competitive with the costs of ocean dumping, taking into account the environmental benefits derived from such activity" be deleted from paragraph 227.16(b). Section 227.17 - Basis for determination. Comments: The broader concerns of Section 208 of the Federal Water Pollution Control Act Amendments of 1972 (PL 92-500) include such factors as regional H 3S7 ------- 6 land use, non-point source discharges and the like. Decisions made to initiate disposal on land should be compatible with the broad planning and management aspects of Section 208 (PL 92-500) as well as the economic values with respect to the municipalities and industries involved. Recommendation: It is recommended that the following phrase be added to paragraph 227.17(b)(2). ...and does not conflict with Section 208 of the Federal Water Pollution Control Act Amendments of 1972 (PL 92-500). In conclusion, we must re-emphasize a prime concern: there is an apparent presumption throughout these regulations that ocean dumping is undesirable if alternative methods of waste disposal are available. The obvious implication of such a presumption is that ocean dumping is more detrimental to the environment than are other means of waste disposal. We submit that such a position is not environmentally responsible as it tends to encourage, out of hand and without proper evaluation, the use of other methods which may well be more demanding of the environment and energy and economic resources. In sum, balance is not assured. We urge that these regulations be modified to reflect a policy of balance among the appropriate concerns of environment, energy, economic and natural resources, and public health and welfare. To this end, and especially since there is significant public interest, we further suggest that the agency consider holding public hearings on these proposed regulations. We appreciate the opportunity to comnent in this matter. Very truly yours, ¦ ) *' /l • /*¦ '¦/ L. P. Haxby, Manage?*" JDH:ddj Environmental Affairs H 3S0 ------- #49 Responses to comments from Shell Oil Company, Houston, Texas. The first two pages of the comments refer to several sections of the regulation. In response to the comment that ocean disposal is unnecessarily restricted when a disposal operation is environ- mentally acceptable, we wish to point out that the regulation requires the balancing of the impacts of all forms of alternatives available, including the economic impact. The purpose of this is to make sure that the most cost-effective alternative is used whether it is ocean disposal or another form of disposal, thus, acquiring the highest degree of environmental protection consistent with reasonable economic cost. Considering the comment made regarding trend assessments (Sections 228. 9, 228.10, 228.13), we believe that trend assessment studies should be conducted whether or not the waste material does indeed meet the criteria. When a waste does meet the criteria, obviously, monitoring procedures can be much different from those procedures for wastes which do not meet the criteria. The material in section 228. 13 provides reasonable guidance for the conduct of trend assessment surveys. It is not intended to be mandatory in all cases, but provides a set of guidlines and procedures which are of general applicability. Revisions have been made at various places in the criteria to require and insure that the relative environmental impacts and risks of alternatives to ocean dumping be given full consideration. u ns9 ------- #49 2 There is no intent in the criteria to build in a bias against ocean dumping for wastes that meet the criteria. The following responses are made to comments, beginning on page 3 of the letter, on specific sections of the proposed regulation: 221-222. - Comments on these Sections are addressed in the Preamble. 227. 2 - The discretionary authority of the Regional Administrator to deny permits even when wastes meet all environmental impact criteria should be retained. This is necessary to permit EPA to respond effectively to all statutory considerations rather than base individual permit decisions solely on meeting one Section of the criteria. 227. 6(b)(3) - The point made here is well taken, and section 227. 6 now contains a provision regarding the transport of organohalogens for at sea incineration, 227.16 - A determination to issue or deny an ocean disposal permit is not based solely on economic considerations. The intent of the Ocean Dumping Act is to maintain a balanced consideration of the environmental impact and the relative costs of all alternatives, including ocean dumping. It is not environmentally responsible to single out or emphasize only one factor as a basis for determination. 227.17 - The impact of permit decisions on 2°8 planning when implementing onshore alternatives is certainly a significant issue. However, since the permit issuing authority is fully cognizant of the requirements of Section 208 in all cases and, in addition, the States involved will have the opportunity to review all permit appli- cations we do not feel that an additional restriction in language is necessary as part of this regulation. ------- TEXAS A&M UNIVERSITY , CIVIL ENGINEERING DEPARTMENT COLLEGE STATION TEXAS 77843 ENVIRONMENTAL ENGINEERING AND ENVIRONMENTAL SCIENCE DIVISION September 22, 1976 Mr. T. A. Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 RE: Ocean dumping criteria Dear Mr, Wastler: In reviewing the proposed regulations and criteria for ocean dumping published in the June 28, 1976 Federal Register I found at least one point in the criteria that bothered me. I am concerned that the cadmium level permitted for the solid phase of material to be dumped as indicated on page 26657 under subpart B section 227.6 (b) (2) may be too low. It is my under- standing from the EIS that the value of 0.6 mg/kg is based upon a 50% increase over the mean value of 0.36 mg/kg observed for 46 background samples taken from Southern California waters. We have analyses on samples from the Texas Coast that indicate some virgin clays from this area can have cadmium values ranging up to 0.9 mg/kg. Dr. Bob Presley in the Oceanography Department here at Texas A&M has indicated to me that cadmium levels of Northern Gulf Coast sediments are higher to the west side of the Gulf and that he also has observed cadmium levels near 1 mg/kg for some sediments that he considers to be relatively unpolluted. Although most sandy and carbonate rich sediments are well below the proposed criteria level, I feel that sediments with fairly high clay con- tent may contain cadmium at levels that approach or even exceed the proposed criteria. I question whether a numerical value should be written into a regulation unless it is based upon data from a sufficient number of regions with sedi- ments having different geochemical matrices. I therefore suggest that a numerical criteria level not be set until such data is available. If the 0.6 mg/kg level is based upon such data and not upon just Southern California Coastal sediments then my concern may not be warranted. N 401 COLLf Gf Of CHCINetKING .* TCACHING ¦ *[S[ARCH-fXTlNSION ------- Mr. T.A. Wastler -2- September 22, 1976 I do think concern over cadmium levels is justified but we should also be sure what levels exist in the disposal site area before these limits are set. I hope that these comments may be of some value to you in establishing appropriate criteria for ocean dumping and if I can provide additional data please let me know. Sincerely Frank S f / ------- #50 Response to comments from the Civil Engineering Department, Texas A & M University, College Station, Texas. The Section 227. 6 has been redrafted to remove the reliance on ambient background levels of cadmium as a basis for regulation, except on an interim basis. These comments reflected a concern expressed by several marine scientists concerning the use of scattered and sparse data in setting a regulation. H403 ------- EJgON COMPANY, U.S.A. POST OFFICE BOX 2180 • HOUSTON. TEXAS 77001 PRODUCTION DEPARTMENT HEGULATOm ATAiHS MANAGER September 22, 1976 Mr, T. A. Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S. W. Washington, D. C. 20460 Dear Mr. Wastler: Exxon Company, U.S.A. commends the Environmental Protection Agency for its clarification of the Ocean Dumping Regulations so as to avoid confusion with requirements under the Federal Water Pollution Control Act. Certainly the language proposed in 41 FR 125 of June 28 makes it clear that discharges permitted under the FWPCA would not be subject to the Ocean Dumping Regulations. We are concerned by the extraordinarily long time which could be re- quired to obtain a permit for ocean dumping of mud and cuttings from an offshore drilling location. A few OCS leases located on or near sensitive marine life prohibit discharges of mud and cuttings at the drill site. Such discharges are permitted by the Interior Department at other than special places because of the low volume and nontoxic nature of the material. The critical need for unretarded exploration and development of the Nation's Outer Continental Shelf petroleum re- sources speaks strongly to the need for some streamlining of permit procedures to accomodate this activity. Therefore, we recommend addition of the following sentence to Section 222.1: "Provided however, in the event the application is for a special or interim permit for dumping small amounts of materials under conditions of Section 228.4(b), and no substantive objection to the issuance of the permit from a Federal or State agency is received under Section 222.3(j), and the Administrator or Regional Administrator determines a public hearing is not required, then final action on any application for permit will be taken within 90 days from the date a complete application is filed." The ninety day maximum period allowed for EPA to process such a non- controversial permit as described in this suggested provision should not be unreasonable. The complexity of scheduling the many legal A DIVISION OF EXXON CORPORATION H 404 ------- Mr. T. A. Wastler, Chief Marine Protection Branch Page Two and physical actions involved with our OCS drilling makes it essential that some of the actions be "time-defined." We sincerely trust you will give this suggestion your full consideration. CTH: gz Yours very truly, h ------- #51 Exxon Company, Houston, Texas submitted comments and and suggested changes on Section 222,1. The response to their concerns is contained in the preamble to the regulations. H 400 ------- si 'i n-: :*m i • i?»> i i sthkkt. n.vv u:\si hngton. no hckxig ¦ ,vc 202-208 r,ior> New Address: 3306 Winnett Road, Chevy Chase, Md. 20015 Telephone: A/C 301 - 652 - 8910 THE AMERICAN EAGLE FOUNDATION DONALD D. CARRUTH PRESIDENT WILLIAM G. ALLEN vice paesiDC*r September 23, 1976 U. S. Environmental Protection Agency Attn.: Director, Oil and Special Materials Control Division (0SMCD) 401 M Street, S. W. (WH-548) Washington, D. C, 20460 Dear Sir: Conroents of this Foundation, a national environmental organization, are being sent your office with reference to: "Proposed Eevisions to Ocean Dumping Criteria, Draft Environmental Inpact Statement," (EIS) as set forth in your release dated July 16, 1976. Submission date for Garments was extended until September 24, 1976 by Federal Register issuance dated August 12, 1976. A copy of our letter dated August 25, 1976 to your Division, which in- ducted our conments on EPA's: "Ooean Dunping: Proposed Revision of Regulations and Criteria (40 CFR Parts 220 Through 229)," is identified as Exhibit-A, and is attached to this letter and is made a related part thereof of our current cements. Our contents are based most specifically on those portions of the EIS, and related references, regarding pollution criteria for controlling the environmental inpact and adverse environmental effects at destruction levels already proven to be attainable on an economically feasible and timely basis. We are referring to destruction of millions of tons of hazardous, toxic, and carcinogenic chemical wastes (and chemicals) which lend themselves to a combustion efficiency of at least 99.® (see Exhibit-A). EPA, therefore, should change the level of inpact selected as acceptable for ocean dunping of chemicals (wastes) in the marine environment, to a minimum of 99,® destruction before being dunped in the ocean. Since the legislative history of the Marine Protection, Research, and Sanctuaries Act of 1972 did not envision destruction of chemicals aboard ship far at sea, it seems reasonable to conclude that Congress had no alternative, at the time, but to include such a reference as "unreasonable degradation," which should not be exceeded. H 407 ------- p. 2 It is the view of this ibundation that there are no acceptable alternatives to "the marine environment dunping program of ETA," unless such alternatives either render inert, or destroy, chemical wastes up to and including 99,9% efficiency. The U. S. Environmental Protection Agency should, in its future reports to the Congress on ocean dunping under authority of the Marine Protection, Re- search, and Sanctuaries Act, as amended, be alert to the fact that EPA should not give undue credit to the agency's Ocean Dunping Permit Program as the basis for reducing the number of outstanding ocean dunping permits but in reality have given heavy reliance to the use of environmentally unaccept- able "deep well injection permits" for ground disposal (not destruction) of chemical wastes. Sincerely Donald D. Carruth President encs. H *00 ------- THE AMERICAN EAGLE FOUNDATION SUITE 300 • 1729 H STREET. N.W W\S HNGTON. DC 20006 • A/C 202-2O,3-f?:05 New Address: 3306 Winnett Road, Chevy Chase, Maryland 2CC15 Telephone: A/C 301 652-8910 Exhibit - A DONALD D. CARRUTH MrsroENT WILLIAM C. ALLEN VICE PRESIDENT August 25, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Cont-ol Division (k'H-5^8) Environmental Protection Agency 401 M Street, S.W. Washington, 0. C. 20460 Dear Mr. Wastler: The following comments of The American Eagle Foundation, a national environmental organization, are submitted to your office with reference to the Proposed Rive- ra king by the Environmental Protection Agency (EPA), relating to: "Ocean Dump-'-c: Proposed Revision of Regulations and Criteria (40 CFR Parts 220 Through 229)", and as further set forth in page 26644 to, and including, page 26667 cf the Mon- day, June 28, 1976 issue of the Federal Register, Vol, 41. 125. Regardless of the wording of the Proposed Rule, or any valid interpretation of the existing language of the proposal, EPA has failed to offer practical and val-'d alternatives to ocean dumping in order to correct the inherent weakness of EPA's Ocean Dumping Program — that is, the destruction, or the rendering -'"ert, of a great portion of the materials scheduled to be dumped, before such mater'?."s are allowed to be dumped in the marine environment (ocean). This squirerent goes beyond section 227.15 (a) of the proposal: "Degree cf treatment feasible fo- the waste to be dumped, and whether or not the waste material has been or be treated to this degree before dumping." The Proposal is based on the "dumping" of mate rial(s) in the ocean in the sa-e basic form it was in at the time the material was made available from its prirne 1ocati on. The proposal would, if adopted in its present form, effectively bring to a grinding halt the development by American Government and industry of a fleet of American-owned, double hulled, double-bottomed, highly automated, self-monitoring, controlled high-temperature chemical incineration tankships. These tankships would be capable of a combustion efficiency of a minimum of 99.9% of thousands of tons of hazardous and toxic chemicals, and those types of chemicals capable of causing cancer — which are subject to incineration aboard ship, far at sea — with no measurable stress by the incinerated residue on the marine environment. The vessels shall be capable of maintaining incineration temperatures up to and including 1,650°C (3,002°F). The reasons given by EPA in the Proposal are insufficient for justifying exclusion, at this time, of consideration of ocean incineration (by vessel at sea) for des- troying incinerable organic chemicals or chemical wastes. ------- h Cc.se ir, point: The primary justification for existence of the United States Environ- mental Protection Agency is its Congressionally mandated responsibility for protecting and enhancing the quality of the environment of the human and natural resources of the United States. Laws other than just the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, and those acts cited in the proposal, relate to this inherent responsibility of EPA (Ref.: Compilation of Federal Laws Relating to Conservation and Development of Our Nation's Fish and Wildlife Resources, Environmental Quality, and Oceanography, dated January 1975). The alternatives to ocean dumping proposed in section 227.15(c) such as land fill, well injection, incineration (presumably on land), spread of material over open ground, and storage should not be concluded to be feasible alternatives to ocean incineration since there is no demonstrated destruction efficiency factor stipulated for these al- ternatives where "disposal" of hazardous and toxic chemical wastes are concerned. The U. S. Geological Survey has expressed its concern regarding deep well injection thusly: "In its predilection for grossly oversimplifying a problem, and seeming to resolve all variants by a single massive attack, the United States appears to verge on accepting deep injection of wastes as a certain cure for all the ills of water pollution. Uncritical acceptance would be ill advised. It is fostered by a technical and commercial literature which, to a distressing degree, describes capabilities of injection in terms so highly generalized as to be all but meaningless in relation to a specific waste in a particular environment. In part, the assessments are projected from misleading or false premises. An instructive example of a misleading premise is quoted below from a commercial source; the same premise appears also in current technical literature." "Injection underground would of course put wastes out of sight but, in a responsible society, cannot be allowed to put them out of mind. Injection does not constitute permanent disposal. Rather it detains in storage and coumiis to such storage - for all time in the case of the most intractable wastes - underground space of which little is attainable in some areas, and which definitely is exhaustible in most areas. These precepts have been stated or implied repeatedly in diverse contexts, by numerous writers." "The Environmental Protection Agency (EPA) has generally followed the policy announced on October 15, 1970 (by their predecessor, Federal Water Quality Agency, (FWQA). That policy opposed "the disposal or storage of wastes by subsurface injection without H 410 ------- H* - strict controls and a clear demonstration that such wastes will not interfere with present or potential use of subsurface water supplies, contaminate interconnected surface waters, or otherwise damage the environment. The policy also states that where subsurface in- jection of wastes is practiced, it will be recognized as a temporary means of ultimate disposal to be discontinued when alternatives enabling greater environmental protection become available." It should be noted that neither EPA nor industry is capable of reproducing in their laboratories, the scope of temendous pressures exerted by Nature on the earth's "fragile crust". Of the many millions of tons of hazardous and toxic chemical wastes dumped into land injection wells each year in the United Staes, there are no data which have been made available to this Foundation to show that such groundwater and surface water does not eventually contribute sub- stantially to the degrading of the marine environment. The American Eagle Foundation made arrangements in 1973/1974 for the motor vessel "Vulcanus" - - a specially equipped incinerator tankship developed by industry in Europe - - to come to the Untied States from Rotterdam in late 1974 and demonstrate the feasibility of destroying 99.9 percent of the ship- loaded cargo of hazardous and toxic chemical wastes passing through the high- temperature incinerators. These wastes were chlorinated hydrocarbons; their lifespan, we are told, can be measured from the Ice Age to the present time. These chemical wastes are of the type that have been dumped in a raw and un- treated state into the Gulf of Mexico for more than 25 years, and into in- jection wells on land. In EPA's July 1975 report: "Disposal of Organochlorir.e Wastes By Incineration At Sea" (EPA-430/9-75-014), the results of determination of combustion ef- ficiency of stack gas composition ranged from 99.92 to 99.981 based on carbon analyses, for the first shipload voyage of the "Vulcanus", while burning Shell's wastes. Combustion efficiencies for the second shipload burned ranged from 99.987 to 99.998% - - these ranges of destruction efficiencies being much higher than the 99.9% specified in EPA's permits tc incinerate. Marine monitoring surveys indicated there were no measurable increases in concentrations of trace metals and organochlorides in the water and marine life. With EPA having issued many dumping permits during the past several years to chemical and petrochemical companies to dump millions of gallons of their chemi- cal wastes into deep wells on land and also in the Atlantic Ocean and the Gulf of Mexico, common sense would dictate that any vessel that could destroy most of these types of wastes at even a 99.9% level would be better than dumping it as now. In the March 1976 issue of CHEMECOLOGY (of the Manufacturing Chemists Association) is noted: "Maritime Administration Offers Help To Develop Incinerator Ship Program" "Impressed with the performance of a European incinerator ship, the Maritime Administration believes that the United States should de- velop its own capability to destroy toxic chemical wastes at sea. H ,, 411 ------- y • *» "Predicting that as many as four ocean-going incinerators eventually may be needed nationwide, the agency says it is in a position to help by converting some ships in the reserve fleet into disposal vessels. "In an environmental impact statement on the subject, the agency notes the growing volumes of hazardous residues and says that traditional disposal methods such as ocean dumping and 1andfi11ing are becoming increasingly intolerable from an environmental standpoint. "Of the 10 million tons of nonradioactiv hazardous wastes generated annually in this country, the agency points out that 40 percent is inorganic and 60 percent is organic. Some 90 percent occurs in liquid or semi liquid form." In the Sixth Annual Report of The Council on Environmental Quality, dated December 1975, Chapter 1: "Carcinogens in the Environment", notes that chemicals introduced into our environment by our consumption pattern and way of life, can cause cancer; and that much of the cancer is probably associated with carcinogenic agents pro- duced by man. It also notes that cancer killed a reported 358,400 United States citizens in 1974. The technique of destroying hazardous and toxic chemical wastes by high-tempera- ture controlled incinerator tankships far at sea - - and away from masses of people - - is probably the safest method available to industry and government for the destruction of chemical wastes that contribute to the causing of cancer. America should give no less consideration to overcoming the detrimental effects caused by a ravaging deadly disease which attacks America's human resources than it does to the destructive effects of a hurricane or other natural disaster. The same effort of dedication by the government should apply to resolving both types of problems. Since the marine environment also suffers from pollution caused by land disposal (rather than destruction), there is no valid reason why EPA should abdicate its legal responsibility to the American people for controlling that pollution which it can help control, rather than continuing to withhold the valid technique of incinerator tankship destruction at the 99.9% level while the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, discusses this subject for the future. Sincerely Donaia u. uirrutn President DDC;cjt ------- #52 Comments submitted on September 23 by the American Eagle Foundation focus on section 228. 10 in the DEIS. In response, we want to state that when criteria are promulgated for incineration at sea, an appropriate level of destruction will be prescribed in those criteria. In the meantime, all incineration at sea operations will be conducted on a research or interim basis. See also response to comment #23. H 413 ------- THE JOHNS HOPKINS UNIVERSITY . BALTIMORE, MARYLAND 21218 CHESAPEAKE BAY INSTITUTE 301/ 338-8258 September 23rd, 1976 Oil and Special Materials Control Division Office of Water Program Operations U. S. Environmental Protection Agency Washington, D. C. 20460 Gentlemen: I have examined the Draft Environmental Impact Statement (Dated 16 July 1976) on Proposed Revision to Ocean Dumping Criteria and would like to comment on it from the perspective of an oceanographer who has worked since 1967 on problems of disposal of various wastes at sea, primarily in the New York Bight and adjacent waters. I cannot comment on the technical or procedural aspects of the proposed changes. In my opinion, the EIS fails to adequately state our limited ability to identify and measure concentrations of contaminants in the various wastes proposed for disposal at sea and to relate these measurements to environmental effects resulting from disposal operations. Does EPA have any information on the accuracy of the data presented on permit applications concerning the characteristics and composition of wastes? How well are the present regulations and analytical procedures working? How will they be improved by the proposed changes? The EIS does not adequately cover problems associated with disposal of dredged materials. The EIS should point out that these are now handled under separate process from most of the permit applications and that no reliable data are available on even the volume of dredged materials dumped at sea. And I question whether we have any reliable data on their chemical composition. It should also be pointed out that many materials dredged from harbors are virtually indistinguishable from sewage sludges and industrial wastes that require EPA permits. The EIS leaves the reader with the impression that the elutriate test is a reliable procedure for all types of dredging operations and dis- posal operations. It fails to indicate the serious deficiencies in the procedure and that it is not designed to provide reliable data on such dredging techniques as clamshell dredging or disposal from bottom-dumping scows or hopper dredges. The elutriate test closely approximates hydraulic dredging with disposal in a diked enclosure from which the elutriate materials are discharged in contact with relatively high levels of dissolved h;u5 ------- Letter to the Office of Water Program Operations Oil and Special Materials Control Division, EPA September 23rd, 1976 Page 2 oxygen which is distinctly different from disposal in estuarine waters which are naturally turbid and often deficient in dissolved oxygen. The adequacy of bioassay tests should also be discussed. Are these reliable indicators of the probable effects of the disposal of wastes on the sensitive (or otherwise important) species in the disposal area? Where the EIS discussion indicates deficiencies in existing knowledge that limit the ability of EPA to predict the probably environmental effects of waste disposal on the marine environment, the EIS should give an indication of the type of research efforts now underway (or planned) in EPA or other agencies to remedy that deficiency or indicate the level of support and general priority that is given such research in EPA research activities planned for the future. Thank you for the opportunity to comment on the EIS. Sincerely yours M, Grant Gross MGG/pm H 416 ------- #53 Response to comments from Dr. M. Grant Gross, Chesapeake Bay Institute, The Johns Hopkins University, Baltimore, Md. It is relatively easy to measure the concentration of almost any particular constituent in a waste, assuming that the appropriate instrumentation is available in the laboratory doing the work. The accuracy of any data obtained depends to a large extent on the ability of the technician or scientist doing the analysis, as well as on the procedure being used and the material being analyzed. For some constituents high accuracy is possible and usual, and for others there is some question as to the accuracy of the results, particularly for some trace metals and organic compounds. On the other hand, it is very difficult to relate analytical results, no matter how accurate, to impact on the biota for mixed wastes in which there may be substantial synergistic or antagonistic effects. Therefore, in the final criteria we have gone as far as possible at this time to the use of bioassays on liquid, suspended particulate, and solid phases of wastes, since these provide a direct measure of impact independent of and superior to what might be deduced from analytical results. These new test procedures apply to dredged material, as well as to all waste materials proposed for dumping. ur ------- #53 2 Since there are many different types of bioassay tests, it would be impractical to discuss the adequacy of all bioassay tests within the context of the EIS. EPA has published a separate manual on bioassay procedures in which appropriate tests adequate for the purposes of these regulations are outlined, Benthic bioassay procedures will be published in the near future by EPA and the Corps of Engineers. The DEIS does not point out that there is a separate program for dredged material and one for other materials. The volume of dredged material dumped at sea has been reported in the EPA Annual Report ever since the program began. There has been reliable data on the chemical composition of some dredged material for a number of years, and we are not aware of any information which documents that many dredged materials are vitually indistinguishable for sewage sludges. The Environmental Impact Statement on the criteria is not an appropriate place to discuss EPA research programs. These are dis- cussed in the Annual Reports on the program and in the Report on Research Activities submitted annually by NOAA, H 410 ------- Natural Resources Defense Council, Inc. BOARD OF TRUSTEES Stephen P. Duggaa Chairman James Marshall Vice Chairman Dr. George M. Wood well Vict Chairman Dr. Dean E* Abrahamson Mrs. Louis AuclUodou Boris I. Bittkcr Frederick A. Collins, Jr. Dr. Rene J. Dubos James B. Frankel Robert W. Cilmore JJuly Jackson, D.B.E. Hamilton Keaa Dr. Joshua Lederberg Anthony Maziocchi Paul K. McCloikey, Jr. Michael Mcintosh Eleanor Holmes Nouoo Owen Olpio Franklin £. Parker Dr. Gilford B. Finchot Charles B. Rangel John R. Robinson Laurence Rockefeller J.Willard Roosevelt Whitney North Seymour, Jr, David Sive Beatrice Abbou Duggaa V JV. Rcprcsentativt JobnH. Adaau Executive Direc tor 15 WEST 44TH STREET NEW YORK, N.Y. IOO36 Washington Office J1S 869-OI5O 917 15TH STREET, N.W. WASHINGTON, D.C. 80005 737-5000 Western Office 664 HAMILTON AVENUE PALO ALTO, CALIF. 94301 415 3*7-1080 September 24, 1976 Mr. T.A, Wastler Chief, Marine Protection Branch Oil and Special Materials Control' Division (WH-5^8) Environmental Protection Agency 401 M Street, SW Washington, DC 20460 Dear Mr. Wastler, These comments are being submitted by the Natural Resources Defense Council on EPA's proposed revised ocean dumping regulations and criteria which appeared in 4l Fed. Reg. 26644-26667 (June 28, 1976). N1DC has reviewed the comments submitted by the National Wildlife Federation on these regulations and criteria and supports the criticisms of the proposed rules contained in NWF's commente. In particular, we agree that the continued availability of interim permits for wastes which do not satisfy the ocean dumping criteria is legally Indefensible and the open-ended availability of such permits for ocean dumping of Sewage sludge is particularly unwarranted. We also criticize the fact that the criteria fall to adequately take account of long-term and cumulative dumping impacts. Finally, NRDC joins NWF in its critique of the criteria applicable to dredged material. Thank you for your consideration. arah Chasls Staff Attorney »oo% Recycled Paper w 419 ------- #54 Response to comments from the Natural Resources Defense Council, New York, N.Y. The criteria represent the state-of-knowledge of the impact of pollutants on marine ecosystems. Only after many years of study can the actual impacts of dumping be assessed. The criticism that the criteria do not adequately take account of long-range and cumula- tive impacts assumes that nothing should be done until everything that could possibly happen is known. This logic could be applied to all human decisions with results that could be disastrous to every form of human endeavour. Regulation in every sphere of human activity must be based on what we know now, not on what it would be nice to know at some point in the future. Responses to other comments are contained in the response to comments from the National Wildlife Federation, #3. ^ 420 ------- gQUTljg UNIVERSITY OF SOUTHERN CALIFORNIA University Park Los Angeles, California 90007 SCHOOL OF ENGINEERING ENVIRONMENTAL ENGINEERING PROGRAMS September 21, 197 6 Mr. T.A. Westler, Chief Marine Protection Branch Oil and Special Material Control Division (WH-548) Environmental Protection Agency 401 M. Street, SW Washington, D.C. 20460 Re: Comments on proposed revision of regulations and criteria of ocean dumping Federal Register, June 28, 1976 Dear Mr, Westler: Here are my comments on the proposed regulations and criteria on ocean dumping as they appeared in Federal Register, Vol. 41, No. 125: 1. Sections 227.6 (b) (1) and (2) (a) Specific numerical values of gross sediment compo- sition may not be relevant under most conditions of ocean dumping. Many recent investigations have shown that there is no direct correlation between bulk chemical compo- sition and bioavailability of toxic materials in sediments. A few parameters of gross sediment analysis that may have direct bearing on the quality of water column are: oil and grease, immediate oxygen demand, and total organic carbon. (b) In the disposal areas where the benthic community is of primary concern, gross sediment composition should be used in conjunction with other parameters. (c) Observation of a visible surface sheen in an undis- turbed water sample is very subjective. EPA should carry out research to define what type of oil and grease, at what levels will produce a surface sheen. Current available methods for the determination of ft 421 ------- oil and grease in both water and sediments are non- specific and lack reproducibility. 2. Section 226-13 (c) Further modifications or refinement of the Elutriate Test are needed to make it a valuable tool in evalu- ating the potential effect of dredged materials. Current practice requiring appropirate centrifugation and filtration through 0.4 5 pm membrane. This will practically eliminate all the suspended particulates which are likely to cause some effects on water col- umns in ocean dumping. Since contaminants in both soluble and particulate forms can both enter food chains, the appropirate step is to allow for the quiescent settling of sediment/water mixture for 30 minutes, and analyze the chemical composition of both total water sample and soluble fraction. The estimation of dilution effects is unnecessarily complex and questionable. It is recommended that a relevant elutriate be developed. The proper interpretation of this elutriate test results should require consideration of background level in the disposal area in relationship to the amount of in- crease in concentration that would occur in the disposal site. 3. Section 227.29 Very truly yours Kenneth Y. Chen, Ph.D. Associate Professor 6 Director KY C:me 422 ------- #55 Responses to comments received from Dr. Kenneth Y. Chen, University of Southern California, Los Angeles, CA. 1. (a), (b) - The criteria have been redrafted to require the use of bioassays on liquid, suspended particulate, and solid phases of all materials rather than relying on bulk analysis of sediments. (c) - The visible surface sheen is a legally accepted regulatory criterion which has been applied in other regulatory programs. We see no reason why it should not be acceptable here. Research into the impacts of oil on the environment is an ongoing project and if a more suitable regulatory definition is developed it will no doubt be incorporated into this regulation, 2. 227. 13(c) - Both short-term and long-term effects need to be considered in dealing with the disposal of any two-phase waste. The elutriate test provides a measure of short-term effects and the benthic bioassay provides a measure of lr.r.f-term effects. 3. 227. 29 - We do not feel that the provisions for the use of mathematical models and field data in determining initial mixing characteristics are unnecessarily complex and questionable. We think they represent the state-of-the-art v-.ih regard to ocean pheno- mena, that the interpretation of the elutriate test results is accurate in terms of the background leveling disposal area. We believe this is what the criteria require. U 423 ------- MEMORANDUM DEPARTMENT of health, education, and welfare Public Health Service \ to : Director, Oil and Special Materials Control date: September 27, 1976 Division, EPA from ; principal Environmental Officer subject; Comment on Proposed Revisions to Ocean Dumping Criteria The subject revisions have been reviewed by the Food and Drug Ad- ministration and the National Institute for Occupational Safety and Health. With respect to the revisions per se, earlier suggested changes recommended providing limitations for lead in addition to those for cadmium and mercury. We assume that the reconmendation was not followed because international standards include only mercury and cadmium. Turning to the DEIS, the terms "solid phase" (227.6 item b(l) and b(2), etc.) and "solid state" are not well enough defined. The terms may mean "dry basis" - or, any solid particles present in the waste, and should be clarified, perhaps in the definition section. Otherwise, the DEIS appears to adequately cover the numerous factors that must be considered in relation to the practice of ocean disposal of waste materials of widely varying natures. >ri cc - Mr. Charles Custard OEA, DHEW H 425 ------- #56 The U. S. Department of Health, Education and Welfare, Public Health Service, Washington, D. C., made suggestions on the definitions of "solid state" and "solid phase". The trace contaminants criteria are based on those constituents identified in Annex I of the Convention. Lead is not one of those and is not included in this provision. The terms "solid phase" and "liquid phase" are defined explicitly in Section 227. 32 of the regulations. H426 ------- TEXAS A&M UNIVERSITY School of Natural Biosciences Department of Wildlife and Fisheries Sciences Instruction — Research — Extension COLLEGE OF AGRICULTURE COLLEGE STATION, TEXAS 77843 September 19, 1976 Office of Water Program Operations U.S. Environmental Protection Agency Washington, D.C. 20460 Dear Sirs: I would like to make a few brief comments on the EPA Draft Environmental Impact Statement "Proposed Revisions to Ocean Damping Criteria." My experience has been confined to Intracoastal Waterway dredge spoil material, mostly catagoriaed as "nonpolluted." In general, my assessment is that your EIS effectively outlines the problems associated with ocean dumping and reviews the current technology for determining the effects that such activities will have on the marine environment. The following items concern areas which I, as a biologist, feel concern about and, which 1 feel 1 can discuss tfitk some degree of expertise. The ability to test the effects of dumping dredge spoil at sea is of extreme importance in determining the location of dump sites initially and in monitoring those sites subsequent to the onset of dumping. While laboratory testing is important and must be incorporated into any valid monitoring program, simulation of marine processes in the laboratory is artificial and should be accompanied by appropriately designed field investigations. The latter should include in situ bioassays (the development of which may be rather incomplete at present), both acute and chronic. While the problem of working with indiginous species is acknowledged, I feel that the art of mariculture has advanced sufficiently far to allow us to attempt utilizing animals inhabiting the dump areas in our laboratory bioassays, or at least, utilizing organisms which occur in the vicinity. While this may sometimes present difficulties, in most parts of the country appropriate bioassay organisms are, or have been held in culture. There is no reason to attempt the establishment of one or a few standard test organisms for use nationwide, and, as I read the EIS, the EPA has not attempted to take that approach. Estuarine organisms may show tolerances to certain dredge materials (either toxicants or turbidity) which are somewhat different from those of offshore fishes and invertebrates. Thus, it is important to utilize bioassay species which would be likely to inhabit the dump sites. The U.S. Army Corps of Engineers and other agencies have supported a significant amount of research aimed at not only determining the effects of dredging and dredge disposal on the marine environment, but also on alternative uses and methods of disposal of dredge material. Ocean dumping should, I feel, be the disposal method of last choice when other w427 ------- possibilities are available, if the alternative methods would not result in greater potential negative environmental consequences than the ocean dumping alternative. In some cases, all alternative dump sites or uses of the dredge material for landfill will have been exhaused and ocean dumping will be the last alternative. However, when it is not the last alternative I feel the other uses should be employed, primarily for reasons of difficulty in assessing the impact of the material on the marine environment and, also, because it is often economically lass feasible to carry the spoil material to sea than to dispose of it in the immediate vicinity, I am sure, that ocean dumping, like other issues of this nature, will involve some highly controversial materials as well as those which are rather innoxious in nature. Because we do not presently have sufficient information in many cases to place a particular batch of spoil into one catagory or another, rather extensive monitoring should be required initially until we can sort out the dangerous materials from those which do not present any significant environmental impact of a negative nature. Infrequent monitoring of materials deemed to be of little nagative impact can be allowed once these materials have been identified. Once the material has been dumped, I feel that, in general, the effect on nekton will be transient, and generally, of a limited nature. In the case of dredge material in the southeastern United States estuaries, there seems to be little or no release of trace metals as a result of dredging, nor has there been degradation of water quality in the immediate vicinity of the dredge. Upon dumping, such material presents a primary threat to benthic organisms through burial, often by material of significantly different composition that that originally present. The intent of the EIS to seek out dump sites of low benthic biomass is significant in this respect, since, it may be impossible to completely protect animals under the dumping area. Once the spoil material has been dumped and the biota have adjusted to the new situation, the primary danger is leaching of adsorbed or absorbed materials from the sediments and the direct ingestion of toxicants by the benthos and their subsequent incorporation up the food chain. This is why I again would like to stress the importance of in situ (if possible) chronic bioassaya. Finally, I would like to stress that criteria for permissible levels of various substances in ocean dumped material be based on regional assessments and not be applied generally throughout the country unless the data indicate that this type application is warranted. Safe levels of turbidity, BOD, etc. in one part of the country may be dangerously unsafe in others because of inherent differences in water quality, currents and other factors. ours Robert R.csETc Robert R.cStickney Assistant Professor H 420 ------- #57 Dr. Robert R. Stickney, Texas A&M University, College Station, Texas, presented several comments on the DEIS. EPA submits the following responses in the order of the comments. In many cases organisms indigenous to dump sites are not practical to use in bioassay tests because they cannot be maintained in the laboratory as controlled organisms. Using the most appropriate sensitive species documented in the literature, or otherwise accept- able to EPA, is a reasonable approach and to specify using indigenous species is not practical. In addition, the use of benthic bioassays will go far toward determining the long-range effects of materials deposited in the solid phase. The regulations and criteria require baseline survey investi- gations and continuing monitoring programs of dredged material sites as well as those of other sites used for disposal of other materials. In dredged material disposal as well as in the disposal of other materials, the issuance of a permit depends upon an evaluation of all factors stated in the regulations, including those with the impact of alternatives on other parts of the environment. The ultimate decision on whether or not a permit will be issued depends upon a relative environmental impact and cost of other alternatives. The object of the criteria is to achieve the best balance between the cost of disposal and the maximum protection of all parts of the environment. On bioassays in general, Part 228 of the regulations does specify an ongoing field survey and monitoring program, which • > r (\c\ ------- #57 2 could include in situ bioassays as soon as they are developed into a reliable routine procedures. We agree that there are regional differences in water conditions in the marine environment. That is why the criteria are couched in percentages of change rather than of absolute values. W 430 ------- UNIVERSITY OF WISCONSIN SEA GRANT COLLEGE PROGRAM {608) 262-0905 1800 UNIVERSITY AVENUE MADISON, WISCONSIN 53706 September 23, 1976 Mr. T. A. Wastler Chief Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.w. Washington, D.C. 20460 Dear Mr. Wastler: I have reviewed EPA's proposed revision of regulations and criteria for ocean dumping and the supporting draft environmental impact statement (EIS). My com- ments are based on results of a recently published assessment of the environmental effects of dredged material disposal in Lake Superior. I served as project manager of this study at the University of Wisconsin, contracted by the St. Paul District, U.S. Army Corps of Engineers. 1. Appropriate organisms for bioassays (227.27) The use of organisms from three trophic levels for bioassays will improve prediction of impacts on various parts of aquatic food webs, and under- scores EPA's determination that "any significant impact on the biota con- stitutes 'unreasonable degradation'" (EIS, p. vii). A further improvement could be made by emphasizing benthic fish and filter-feeding benthic organisms which have a more intimate long-term relationship to sediments and dumped material than do pelagic forms. In bioassays for our Lake Superior study, we used sculpin and the burrowing amphipod, Pontoporeia affinis, an important food source for Great Lakes fish (1). 2. Delineation of impacts (227.4) The rationale for distinguishing acceptable impacts from unacceptable im- pacts seems sound and the criteria to be used are an improvement over present criteria. However, there are some additional changes which would increase the usefulness of the proposed criteria in predicting effects of ocean disposal and in detecting changes on and near the disposal sites. a. selection of concentration limits for trace contaminants (227.6) The new limits of 0.75 ppm for mercury in the solid phase of disposal material were selected by allowing a fifty percent deviation from a mean concentration which was calculated from assumed ambient background values in marine sediments. These sediments displayed a range of 0.14+0,06 to 1.5+0.4 ppm mercury (EIS, p.42). Analysis of mercury in H 431 ------- "Mr. Wastler Page Two September 23, 1976 Lake Superior sediments showed a similar range but lower concentrations compared to the analyzed marine sediments: 0.024+0.004 to 0.24+0.15 ppm in the total sediment samples (2). Helmke, et al , attributed much of this variation to differences in the quartz content between samples. Most of the trace metals were in the fine clay and silt fraction. The quartz fraction, with lower concentrations of metals, diluted the total sample concentration of metals. Analysis of trace metals and other pollutants in total sediments is meaningless without textural analysis and knowledge of pollutant associations with particular fractions. Helmke, et al, outlined a method for determining background values for trace metals in sediments. Trace metals measured in the clay-size fractions of each sample were compared to the concentration of the same element in the same fraction of local "natural" soils. The re- sults showed that elements not commonly used by man had similar concen- trations. Sediment samples had mercury values in the clay-size fraction as high as 21 times background values. After an allowance was made for the uncertainties in selecting background values, it was apparant that this technique provided indication of cultural pollution. This method, applied to sediments at individual ocean disposal sites and to disposal material, would simplify the problem of determining background values for trace contaminants and would improve the trend analysis at the sites. Since regional differences in background values probably exist, the method needs to be applied to specific sites on a case-by- case basis. The criteria of 0.75 ppm mercury in the solid phase of waste material appears to be too high. In our study, Pontoporeia affinis, exposed to sandy sediments that had been enriched with soluble, inorganic mercury, experienced significantly reduced activity over a five day period after exposure when the total sediment concentration of mercury was 2.15 to 3.35 ppm (1). Similar trends were noted during a two day exposure to sediments containing 0.65-1.15 ppm mercury, but the results were not statistically significant because of the short duration and small num- ber of tests. Uptake of mercury by these animals increased their body burdens of mercury by about 100 times during the two day exposure, and by 100-1000 times initial body concentrations during the five day ex- posure. Groups of Pontoporeia collected from Lake Superior near Duluth- Superior showed body burdens of mercury ranging from 0.024+0.005 to 2.0+0.2 ppm on sediments with less than 0.39 ppm mercury in the sedi- ment. This wide range in values indicates that mercury uptake may be occurring in these animals. The groups of Pontoporeia with the higher values of mercury were collected on sediments with high concentrations of mercury in the clay-size fraction. b. Reliance on toxic bioassays and elutriate tests (227.6, 227.13, 227.27) Some form of simple uptake test should be added in order to give an in- dication of the bio availability of solid fornts of contaminants in the disposal material to benthic organisms. The toxic bioassay test is too limited in duration to indicate uptake. The elutriate test only indicates the effects of soluble constituents on water quality and by inference, the possible uptake by organisms through ingestion of the soluble forms. The study by Chen, et al, showed that except for iron and manganese, most of the metals in sediments were released in the ppb range at the sediment-water interface over a period of 120 days (3). r o H * <-? ------- Mr. Wastler Page Three September 23, 1976 Their report states, "However, the trace metals and chlorinated hydro- carbons associated with macromolecular organics and suspended particles released into the water column as a result of dredging activities may present some unknown effect." Biological uptake of contaminants from suspended sediments or from sediments and detritus may be as important as uptake from contaminants in solution. Uptake tests with bentnic organisms, such as were used in our Lake Superior study (1). would give some indication of the significance of these routes that is not given by the elutriate test. c. Need to predict changes in benthic populations and species distributions on a disposal site (228.10) Since significant changes in population or species composition in and adjacent to a disposal site are regarded as Impacts, Category I with "unreasonable degradation," there should be some simple test to apply to waste material before a permit is issued that will predict if these changes are likely to occur. The sediment avoidance/preference test for benthic organisms used by Gannon and Beeton (4) could give an ap- plicant information not available from the toxic bioassay or elutriate test. 3. Special consideration of dredged material (227.13) In the proposed regulations, the disposal of dredged material does not re- quire the same careful preliminary tests, and subsequent site monitoring as required by disposal of ether material. While it is probably true that dredged material is predominantly sand, gravel, or other naturally occurring material, it is also true that dredging occurs in harbors and channels where cultural pollutants settle and become part of the sediment. One reason for linking the Corps of Engineers' diked disposal program to the implementation of programs to upgrade sewage treatment facilities was the recognition that dredging operations have been, in part., a waste treatment function. The regulations and criteria for ocean disposal of dredged material should be similar to those promulgated for the disposal of other material. Chemical compatibility as well as textural compatibility between dredged material and disposal area sediments should be a condition for approving dredged material for ocean disposal at specific sites. Since fine suspended material which may contain contaminants has high mobility in harbor and estuarine environments, distance from known point sources of pollution is not valid criteria for excluding dredged material from evalu- ative procedures. Because elutriate tests only indicate release of soluble constituents, and not possible effects of solid forms, these tests should not be used to determine if bioassays are needed for dredged material (227.13c). Since dredged material may contain solid waste contaminants, there may be adverse effects on populations and species composition at or near disposal sites when dispersal of the material is minimal. These sites should be monitored in the same fashion as proposed for disposal sites for other material. H 433 ------- Mr. Hastier Page Four September 23, 1976 With the changes suggested above, the proposed regulations and criteria will provide better safeguards against adverse environmental effects on benthic com- munities due to uptake of contaminants in solid form present in dredged material and in other material intended for ocean disposal. ^ r Specialist JPK:das (1) John J. Magnuson, Ann Forbes, and Ronald Hall, 1976, Volume 3, Biological Studies, An Assessment of the Environmental Effects of Dredged Material Disposal in Lake Superior, University of Wisconsin Marine Studies Center. (2) Philip A. Helmke, Robert D. Koons, and Iskandar K. Iskandar, 1976, Volume 5, Trace Element Study, (3) Kenneth Y. Chen, Shailendra K. Gupta, Amancio Z. Sycip, James C. S. Lu, Miroslau Knezevic, Won-Wook Choi, 1976, Research Study on the Effect of Dispersion, Settling, and Resedimentation on Migration of Chemical Con- stituents During Open-Water Disposal of Dredged Materials,University of Southern California. (4) John E. Gannon and A. M. Beeton, 1971, Procedures for Determining the Effects of Dredged Sediments on Biota-Benthos Viability and Sediment Selectivity Tests, Journal of the Water Pollution Control Federation, Volume 43. cc: Greg Hedden P. A. Helmke J. A. Magnuson W. E. Pequegnat Robert Ragotzkie Sincerely, H 434 ------- #58 Response to comments received from University of Wisconsin, Sea Grant College, Madison, Wisconsin. 1. The bioassays as specified in the criteria for liquid, solid, and suspended particulate phases require the use of three trophic levels. For solid phase, 'benthic fish and filter feeding benthic organisms are specified as appropriate organisms to use in the bioassays. 2. (a), (b) - Bioassays on all phases are now required, rather than relying on ambient concentrations. This change is the result of this comment and many similar comments. These bioassays may include chronic and uptake bioassays, as well as measurements of acute toxicity. (c) 228. 10 - The bioassays specified in the criteria provide for a prejudgment on a specific waste as to whether or not it is likely to cause reasonable degradation. The sediment of avoidance' preference test for benthic organism used by Gannon and Beeton is done under research conditions and cannot be considered state of the art. The benthic bioassay procedures which will be published by EPA and the Corps of Engineers may apply some of this work to our regulatory criteria, if it appears that this is an appropriate thing to do. 3. 227. 13 - Several of the questions raised in these comments are answered in Appendix G. It should be noted, however, that dredged spoil disposal sites are subject to the same ongoing monitoring requirements as other sites, so the comment that dredged material sites are not subject to the same evaluative procedures is incorrect. r. 435 ------- 'John R. Jannaront Vir.p Pr^idcft! Consolidated Edison Company of New York, im . 4 Irving Place, New York. N Y 10003 Telephone (212! 460 -1940 Mr. T. A. Wastier, Chief Marine Protection Branch Oil and Material Coiitrol Division (WH-548) Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Dear Mr. Wastler: The Consolidated Edison Company of New York, Inc. respectfully submits herewith, in triplicate, com- ments on the Environmental Protection Agency's proposed revision of regulations and criteria for ocean dumping (40 CFR Parts 220 through 229), which were published in the Federal Register on June 28, 1976. Con Edison urges the EPA to reconsider its regula- tions. In particular, we find that EPA's stated policy on issuance of special permits and the evaluation of the need for ocean dumping are inconsistent with the Marine Protection, Research, and Sanctuaries Act of 1972 and the findings of the House Committee on Merchant Marine and Fisheries. I hope that these comments will assist the Agency in its preparation of final regulations and criteria. September 21, 1976 Sincerely yours egk. id enclosures ( 'John R. Jannarone W437 ------- Comments of Consolidated Edison Company of New York, Inc. on the Environmental Protection Agency's Proposed Revision of Regulations and Criteria for Ocean Dumping 40 CFR Parts 220-229 (41 F.R. 26644) The Consolidated Edison Company of New York ("Con Edison") believes that Congress made it clear, in enacting the Marine Protection, Research, and Sanctuaries Act ("the Act") of 1972, that ocean dumping should be carefully regulated (see Senate Report No. 92-451). While the Act bans the ocean disposal of certain hazardous materials (e.g., chemical warfare agents), it authorizes the Administrator to issue permits for dumping of materials which will not degrade the marine environment or endan- ger human life. Congress recognized that "all ocean dumping need not be banned outright. Ocean dumping of selected types of waste is permissible and may be quite desirable" (Senate Report No. 92-451). As a result of its oversight hearings, the House Committee on Merchant Marine and Fisheries this year issued a report which concluded: ... the weight of the testimony seems to favor the second alternative, that ocean dumping should be illowed if it is strictly regulated and proven to have no deleterious effect on human health and the marine environment. First of all, to preclude ocean dumping as an alternative H 438 ------- solves the problem in the coastal waters, but merely shifts the environmental burden to the land or the air. The environmental damages resulting from land disposal or incineration may be even more severe than would result from disposal at sea. Second, disposal on land would probably involve higher costs and a greater expenditure of energy. Finally, as the volume of wastes continues to increase over the next decade, due to increased treatment of sewage waters and industrial effluent, and as the popu- lation continues to increase and the availabil- ity of land disposal areas becomes aore scarce, the problem could grow even more acute with fewer options available to choose £rom. The Committee therefore felt that ocean dumping should be left as an alternative disposal method for the present time, though strictly controlled and only when it will not unreasonably degrade or endanger human health or the marine environ- ment. (Report No. 94-1047, April 27, 1976) Congress clearly intends to allow ocean disposal of acceptable materials. These regulations should implement H 439 ------- - 3 - that policy. In proposing these regulations, EPA states (41 Fed. Reg. 26644): "there is no change in EPA's intent to eliminate ocean dumping of unacceptable materials as rapidly as possible" (emphasis added). However, the Agency also states, in Section 220.3(b) (41 Fed. Reg. 26549), that "special permits may be issued for the dumping of materials which satisfy the Criteria" (emphasis added). It thus appears that EPA intends to allow the continuation of ocean dumping of materials under the special permit program, in accordance with Congressional intent. It is reasonable, therefore, for the Agency to place a cutoff date for the issuance of interim permits (to dump materials which are not in compliance with the environmental impact criteria of Part 227), and to prohibit (41 Fed. Reg. 26644) "the issuance of an interim permit to a facility which has not previously dumped wastes in the ocean." However, similar restrictions on the issuance of special permits are not autho- rized by the Act. We believe that the Agency cannot deny a special permit for the dumping of materials which satisfy the Criteria of Part 227 to any facility, whether or not the facil- ity has previously dumped wastes in the ocean. Con Edison believes that under the Act, and the regula- tions and criteria promulgated pursuant thereto, EPA is empowered to eliminate the ocean dumping of unacceptable ^440 ------- materials under the interim permit program. However, EPA is not empowered to "phase out" the issuance of special permits for the dumping of materials which are shown to satisfy reasonable criteria based on the requirements of the Act (33 USC §1412). The proposed regulations appear to have so distorted the meaning of "the need for the proposed dumping" (33 USC §1412 (a)(A)) that the effect is to give the Adminis- trator power to deny permits despite the fact that the dumping satisfies all health and welfare criteria, solely on the basis that alternative, albeit more expensive, disposal methods theoretically exist. We believe this is directly contrary to the intent of the Act. We suggest Section 227.16(b), at least insofar as it applies to the dumping of materials that otherwise satisfy the criteria, be revised as follows; "(b) For purposes of para- graph (a) of this section, waste treatment or improvements in processes and alternative methods of disposal are practicable when they are available at costs competitive with that of ocean dumping." It is Con Edison's belief that unless "need" is interpreted strictly, §227.16 (c)^ which authorizes "phase out" of ocean dumping on the basis of "need"^ is clearly inconsistent with the Act. w ,-441 ------- #59 Response to comments received from Consolidated Edison Company, New York, New York. In terms of need, EPA believes that a careful evaluation should be made of the cost and benefits of alternatives to ocean dumping as well as ocean dumping itself, both in terms of environmental impact and in terms of economic costs or benefits to be derived from it. We think this an adequate expression of determination of need under the requirements of the Act. 442 ------- WATER POLLUTION CONTROL FEDERATION President: V.G.WAGNER, Indianapolis, Ind. President-Elect: H. L. SMITH, Houston, Texas Vice-President: R. S. ENGELBRECHT, Urtana, III. Treasurer: E. E, ROSS, Oakland, Calif, Executive Secretary: R. A. CANHAM, Washington, D.C. , U.S.A. 20037 • (202) 337-2500 September 23, 1976 TO: FROM: SUBJECT: Gentlemen: We have reviewed the proposed regulations and the associated Environmental Impact Statement. That review is appended. We feel that neither the law nor the past regulations set a date for the elimination of all ocean disposal, yet the permits being issued have targeted the end of ocean disposal for 1981. The Federation opposes such an arbitrary deadline and has authorized the following resolution at the next Board of Control meeting: OCEAN DISPOSAL RESOLUTION Preamble: Certain aspects of sound environmental manage- ment practices, are expressed in the Water Pollution Control Federation policy which states: "The discharge o£ all wastewater into the waters of the nation must be controlled in a rational manner. Such regulatory control must be*based not only on considerations of specific wastewater discharge characteristics but also on additional factors including discharge location, physical, chemical, and biological characteristics of the receiving waters, defined beneficial uses, and appropriate water Publishers of JOURNAL WATER POLLUTION CONTROL FEDERATION 2626 Pennsylvania Avenue, N.W., Washington, D.C. T. A. Wastler WH548 Chief, Marine Protection Branch Room 2818 Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Marine Water Quality Committee, Water Pollution Control Federation Review of the Proposed Regulations for Ocean Disposal Under PL 92-532 49(6, rftutual Stotfatettce - "7Hi*meoftai£& (^xhooiUm, (fatten-, TMutMeofnUb, "WtittH. - Oct. 3-$. t976 H 443 ------- -2- quality criteria in order to provide adequate protection of the beneficial uses of the environment. After a facility is in operation additional ecological and environmental studies should be carried out to determine the effectiveness of the facility and the need for future modifications of the facility." Further amplification of this is expressed in the following: WHEREAS, one method of ultimate waste disposal is release into the ocean; and WHEREAS, other disposal alternatives impact such valuable resources such as energy, land, water, air, and living systems; and WHEREAS, those parameters considered detrimental to the ocean environment may have equal or greater detrimental impact on air and land in the alternate disposal technologies; and WHEREAS, any disposal method used must be the most eco- nomically, energy conserving, ecologically and environmentally sound method available; THEREFORE, BE IT RESOLVED that ocean disposal be considered an acceptable, feasible, and viable disposal method for municipal wastewater sludges and other compatible wastes, and that it be compared with other disposal means in determining which disposal method is most acceptable, considering all the important factors involved. Our analysis of the criteria established for special and interim permits shows that many of the assumptions are invalid and we feel that a proper analysis of the Environmental Impact will allow permits for sewage sludge and some industrial wastes to be issued as special, not interim. Therefore, they should not phase out ocean disposal of these wastes by 1981. V. Cox,J Chairman Marine Water Quality LA fa fjt Fa ------- COMMENTS ON THE PROPOSED REGULATIONS CONTRIBUTORS: Garrett Sloan Miami-Dade Water and Sewer Authority David R. Young Southern California Coastal Water Research Project Charles Samowitz Environmental Protection Admini- stration, New York H. D. Putnam Water and Air Research, Inc. Carmen F. Guarino Water Department, City of Philadelphia Geraldine V. Cox Department -of Labor Introduction: We are in agreement with the intensive analysis of the regulations epared by the City of Philadelphia submitted under separate cover, wish those comments to be considered ours as well. The entire issue of ocean disposal of wastes is far too emotional. We beg the regulating agencies to evaluate the impact of ocean dis- posal and the alternative disposal methodologies based on their actual impact on the total environment, the costs to operate, and the energy consumption. We concur with the concept of impact categories, but if this is used, why are we prohibiting sludge disposal before we can show any impact -- such as in the Philadelphia case? In New York we cannot attribute water and sediment degradation to sludge disposal because of the'overwhelming input of other pollutants to the New York' Bight. (See Jeris, et al. 1976) Additional Comments In addition to the comments submitted by the City of Philadelphia we would like to add the following concerns. 1) The inconsistency of setting trace contaminant levels. The rationale for trace metals is not the same for petroleum hydrocarbons or. pesticides. Why isn't the logic consistent? It should be consistent. H 445 ------- -2- Petroleum hydrocarbons are not the only materials which produce a sheen. Normal lipids associated with sewage sludge could produce a sheen, and they are not of petroleum hydrocarbon origin which is the reason for the test. 2) The logic in consistency between trace contaminants in sewage sludge and dredge spoils. If, as Philadelphia has proved it doesn't, in significant amounts the solid phase of sewage sludge reaches the bottom, a contaminant level above background is used to establish the acceptable concentration level in the barge, Dredge spoils do go to the bottom and smother beneath animals as well as provide food for in fauna. YET trace metals are established on an elutriate test which is meaningless. Because of the absorptive properties of clays in dredge spoils, the dilution water has a higher metal concentration than the elutriate. Is this a way to deceive the public and allow polluted materials, far more harmful than sewage sludge, to be released to marine ecosystems? There again, is a lack of logic consistency. 3) Adjudicatory hearing process. We agree to the concept of an adjudicatory process, but we take issue with the composition of the hearing panel. The hearing officer should be an EPA employee, but the panel hearing the case should be knowledgeable scientists outside of the Environmental Protection Agency, and perhaps outside of the Federal government. We feel this arrangement would optimize the adjudicatory process. 4) Monitoring Data Evaluation. While multivariate data analyses are essential, other data analysis techniques should be included. A better definition of impact categories, e.g. Principal Component analyses, should be used. 5) We oppose location of ocean disposal sites beyond the continental shelf, with the exception of soon to be phased out toxic chemicals, due to the virtual impossibility of monitoring waste impact. 6) "Good Faith Effort" in Section 220 needs a better definition. ff 44G ------- #60 Response to comments received from the Water Pollution Control Federation, Washington, D. C. General Comments The regulations do not call for the end of all ocean disposal by 1981. This provision applies only to wastes which do not meet the environmental impact criteria of Subpart B and which are, therefore, being dumped under interim permits while suit- able alternatives are being developed. Certainly, eight years from the effective date of the Act is adequate for this purpose. We would suggest that the commenters read the regulation more closely. The "Ocean Disposal Resolution" appears to reflect the same broad considerations on which the criteria were developed, and calls for the same balancing of overall impacts incorporated into the final criteria. Thus, we believe the criteria are fully compa- tible with this resolution. The Philadelphia sewage sludge is being phased out because it does not meet the criteria published October 15, 1973, not because of measured impact. The criteria do not preclude the dumping of any sewage sludge which can meet the criteria any more than they preclude the dumping of any other waste which can meet the criteria. Specific Comments 1. Trace metals occur naturally in the marine environment. Pesticides and many organohalogens do not. Therefore, it is logical to base trace metal criteria on normal ambient levels which are presumed safe, but this cannot be done for other materials ------- #60 2 because such levels do not exist or are not known. Consequently, it is necessary to use a different basis for regulation for different materials. The logic is quite consistent on other than a super- ficial appraisal. The sheen test is not directed solely to petroleum hydrocarbons, as is wrongly assumed in these comments, but to any material which can cause damage by forming a film on the surface of the water. Whether the film-forming materials are normal lipids (or other materials) associated with sewage sludge is not a rea- son for excluding them from regulation. 2. The solid phase of sewage sludge does in many cases reach the bottom, as the condition of the New York Bight sewage sludge dumpsite clearly indicates. However, in the redrafting of the criteria based on the comments received, the same criteria are applied to the liquid, suspended particulate, and solid phases of all wastes. We believe this is a logical and rational approach to use, and it will certainly provide an accurate appraisal of the relative toxic effects of sewage sludge and dredged material based on scientific testing, not on rhetoric. 3. Responses to this comment are included in the preamble. 4. To attempt to define Impact Categories in terms of statistical parameters would preclude the use of inductive and deductive judgement by responsible and competent scientists. We recognize that statistical techniques have some value when properly used, H 443 ------- #60 3 but they should be used to support professional judgement, not substitute for it. There is unfortunately a regrettable tendency among scientists who are unfamiliar with the collection and interpretation of environmental data to regard statistics as a panacea without realizing the many pitfalls in this approach. 5. This is a statutory provision of the Act. 6. This will obviously be based on a case-by-case determina- tion reflecting past performance and ongoing efforts. H 449 ------- CONSERVATION KAA/ FOUNDATION B K , k _ ¦\r Niri/l/ r\ IPI /IK IPs IKI^ Th"* J°y Street, Boston, MA 02108 (617) 7k2-25>»0 V_jl l\lLV / tl \lvZ7L/nl\L>{ II \lv_x. tostatlbrorpieeBUH:PiN«BS9Te»frMA69AeH«66TTO«H«------- m Response to comments from the Conservation Law Foundation of New England, Inc.» Boston, Mass. 1. 227. 6(a) - This Section has been redrafted. However, a definition is not necessary if operational criteria are set. 2. 227.13(c) - The criteria (plural, criterion is singular) for the disposal of dredged material are now fully compatible with those for the disposal of other materials. 3. Dredged material site selection criteria are now fully subject to the same selection requirements as other sites. H 4^9 \tu ------- UTlD THE UNIVERSITY OF TEXAS AT DALLAS INSTITUTE FOX ENVIRONMENTAL SCIENCES September 23, 1976 Mr. T.A. Wastler, Chief Marine Protection Branch Oil and Specialty Materials Control Division (WH-548) Environmental Protection Agency 4 01 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: Please find presented below my comments on the US EPA Pro- posed Revision of Regulations and Criteria for Ocean Dumping, Part II, originally released in the "Federal Register", Monday, June 28, 1976. I have been active for a number of years in assisting federal agencies in developing ocean dumping criteria. At the request of the US EPA, I reviewed the ocean dumping criteria which have been in effect for the past several years. Further, I have been actively involved in research designed to develop criteria for evaluating the significance of chemical con- taminants present in dredged sediments when dumped or disposed of in fresh and marine waters. This work has been done under the sponsorship of the US Army Corps of Engineers Dredged Material Research Program and dredged material criteria development program. These studies have included field studies designed to evaluate the significance of chemical contaminants present in dredged sediments for ocean dumping and disposal near Seattle, Washington in Puget Sound; near Apalachicola, Florida; Mobile Bay, Alabama; New York Bight, as well as several freshwater sites. In addition, in my role as an advisor to various Corps of Engineers Districts, and the US Army Corps of Engineers Dredged Material Research Program, I have had the opportunity to examine in detail the results of studies conducted on dredged material disposal in ocean waters at several other locations in the US. I hold the position of Director of the Center for Environmental Studies at the University of Texas at Dallas and President of EnviroQual Consultants and Laboratories, an environmental quality consulting firm. It is with this background that I wish to make the following comments on the proposed ocean dumping criteria and regulations. H 453 AN EQUAL OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER 914 eoo.aasa box eea richardson, tcxas ?soeo ------- jep(.ejwjei' £-3, 1a / t> From an overall point of view, I feel that the proposed criteria represent a significant improvement over the exist- ing criteria. Many of the deficiencies in the existing cri- teria that I have previously noted in my comments to the US EPA prior to their adoption have now been eliminated. There are, however, a number of deficiences in the proposed regulations which need correction. These are discussed below. 221.1 APPLICATION FOR PERMIT (j,k) The application for permit requires a statement of need for proposed dumping and a full evaluation of the short and long term alternative means of dumping, etc. In recent years, there has been a trend from ocean dumped dredged sediments toward "confined" disposal. In many instances, the "confined" disposal has resulted in increased costs of the dredging project. When the environmental impact of many "confined" disposal operations is compared to open water disposal previously practiced, it is likely that many of the so-called "confined" disposal procedures that have been adopted in the name of environmental quality control may be more environmentally damaging to aquatic ecosystems than the previously used, less expensive methods of open water disposal. I feel that there is need to properly evaluate the environmental impact of alternate methods of dredged material disposal in order that disposal may take place with the least overall environ- mental harm and at a reasonable cost to the public. I have previously published a number of papers and reports in which I have discussed the potential problems of the so- called "confined" disposal of dredged sediments. A list of these papers and reports is appended to this statement. Copies of any of them may be obtained upon request. The same degree of evaluation of potential environmental impact of alternate methods of disposal should be required as for open water disposal. The commonly used practice of assuming that some alternate methods of disposal are less environmentally degrading than open water disposal should be immediately terminated. I feel this section should contain a statement to the effect that proper evaluation of the environmental impact of alternate methods of disposal must be made as part of the application. 227.6 CONSTITUENTS PROHIBITED AS OTHER THAN TRACE CONTAMINANTS There are a number of aspects of this section which are ill- defined and may cause considerable difficulty in properly implementing these regulations. ^ 454 ------- Mr. T.A. Wastler -3- September 23, 19 76 Justification should be presented for subsection (5bl,2) for the maximum allowable concentrations of mercury and cadmium that may be disposed of at sea. The technical validity for these numbers should be presented in order that they may be reviewed by the public. Section (5)(b) states that known or suspected carcinogens may not be disposed of in the sea. With few exceptions, almost all materials are carcinogens given sufficient concen- trations . The restrictions on carcinogens should be related to concentrations which are likely to be adverse in the marine environment or define carcinogens in terms ox a standard test which can then be reviewed by the public to determine whether it is appropriate for criteria governing ocean disposal. 227.7 LIMITS ESTABLISHED FOR SPECIFIC WASTES OR WASTE CONSTITUENTS Subsection (e) The dissolved oxygen demand restrictions set forth in this section appear to be too stringent for protection of aquatic life. A 25 percent reduction in dissolved oxygen could occur outside of the mixing zone at the time of dump which have no adverse effect on aquatic life. In any situation such as this, consideration must be given to a period of time over which the 25 percent or some other value is considered. If the 25 percent depletion occurred for only a few minutes to a few hours, then this would be of no effect. If it was a depletion that occurred for longer periods of time such as several weeks, then it would be of significance. This section should be rewritten to consider the effect of time cn the depletion of dissolved oxygen. 22 7.13 DREDGED MATERIALS Subsection (c) provides for the use of an elutriate test to evaluate the release of contaminants during dredged ma- terial disposal in the oceans. However, this elutriate test is not adequately defined in terms of the mixing conditions that are to be used during the test. This is an area in which I have been responsible for considerable amounts of research and have previously pointed out to both the US EPA and the Corps of Engineers thar the elutriate test as described in this section is not adequate to provide a reliable estimate of contaminant release. A description of this test must include specification of the dissolved oxygen concentrations that are to be present throughout the mixing and settling period. Failure to include a descrip- tion of this type will result in non-reproducible, uninter- pretable results from the elutriate test in terms of their H 455 ------- Mr. T.A. Wastler -it- September 23, 1976 use to estimate the release of contaminants at the disposal site. This section must be rewritten so that the undefined conditions which are described in the current elutriate test methodology are eliminated. In the section describing the elutriate tests, mention is made of giving special consideration to organosilicon, cyanides, fluorides and other compounds. I questioned the inclusion of organosilicon compounds in the previous ocean dumping regulations and was unable to obtain from the US EPA Washington or its regional laboratories information on why these compounds were included and how one would measure them if they were concerned about them. While I could not obtain from EPA representatives the answers to either of these questions, I did learn from a European contact that the organosilicon compounds arose from a last minute change in the ocean dumping treaty where someone was able to intro- duce this group of compounds into the treaty as prohibited material without proper technical review. Unfortunately, as best I can determine, the participating countries signed the treaty including these compounds, yet in the US, and I know in a number of other countries in Western Europe, the water pollution control officials are not in a position to justify spending any funds for special consideration to these compounds. Even if they had the funds, they do not know how to proceed to evaluate the significance of these compounds much less how to analyze for them. It is time that the United States stop perpetuating this situation. The US EPA should delete these compounds from the list of compounds that get special consideration or should develop a statement which would clearly indicate that there is tech- nical validity in measuring these compounds and how to proceed to measure them. Without this, they should be deleted from the proposed regulations. It should be noted that the US EPA has recently released their water quality criteria in which they have listed those compounds which they think are of significance in affecting both fresh and marine waters. Organosilicon compounds are not listed. A similar situation exists for a number of other compounds in this group, such as fluoride and cyanides. I know of no place where cyanides are of significance in dredged sedi- ments. Further, with respect to fluoride, I serious question the validity of including these compounds as part of the compounds that deserve special attention. There are many others that are much more important than either of these two types. 456 ------- Mr. T.A. Wastler -5- September 23, 19 76 227.27 LIMITING PERMISSIBLE CONCENTRATIONS The approach utilized in this section is in my opinion, inappropriate and overly restrictive for most ocean dumping situations. Basically, this section requires that after initial mixing, concentrations of contaminants in the water column be below 0.01 of the concentration of the contaminant known to or found to be toxic to aquatic life in a four day bioassay. The 0.01 is approximately equal to the normal application factor which is used to relate acute and chronic toxicity. It is not technically valid to apply chronic-lifetime or a substantial part of lifetime exposure criteria such as proposed in this section of these regulations to a situation where the organisms at the edge of the mixing zone have limited opportunity for such exposure because of the intermittent nature of the dredged material disposal operation or ocean dumping. Rather than utilizing this approach, a time-concentration relationship which considers the toxicity of contaminants as a function of time should be adopted. If it is possible for organisms at the edge of the mixing zone to receive chronic exposure then utilize chronic exposure criteria. If however, this is not possible, then criteria which are appropriate for the particular situation that exists at a particular dumping site considering the frequency of the dumping, the magnitude of the dumps, the dilution water available, etc. should be used. This section needs to be rewritten in accord with the technical information available today. It is overly restricted and may cause expenditure of large amounts of public funds in the name of water pollu- tion control which ultimately may provide little or no enhancement of water quality and could, depending on the alternate methods used, result in a greater deterioration of water quality than open water disposal or dumping. Subsection (a) (3) devoted to dredged material disposal states that after initial mixing, the concentrations should not exceed applicable water quality criteria. There is in- creasing tendency for the US EPA and the states to adopt water quality criteria based on chronic exposure of aquatic organisms to contaminants as water quality standards. As noted above, this approach is not appropriate under conditions where the organisms associated with the dredged material disposal site cannot receive a chronic exposure of the con- taminants. Certainly under the typical ocean dumping situa- tion for dredged sediments, the use of the recently promulgated H 457 ------- Mi'. T.A. Was tier -6- September 23, 1976 US EPA Water Quality Criteria in accord with the requirements of PL 92-500, is inappropriate at the edge of the mixing zone to judge the potential environmental significance of chemical contaminants associated with dredged sediments. In addition to typical dredged material disposal operations having a different concentration time relationship at the disposal site than normally encountered in the discharge of municipal and industrial wastes for which the water quality criteria were developed, there is also the fact that in most instances the water quality criteria are based on the total concentrations of contaminants present in the samples. However, for dredged sediments, the likelihood of the total concentration being toxic to aquatic life is much less than for almost any situation that may be encountered for munici- pal, industrial discharges or dumping operations. It is strongly recommended that this section be rewritten so that it properly considers the time-concentration relationships that exist at the edge of the mixing zone for contaminants associated with dredged sediments and that the fact that contaminants associated with dredged sediments should not te judged in the same way as is typically done for municipal and industrial wastes. 22 8.9 DISPOSAL SITE MONITORING The disposal site monitoring section is deficient from two points of view. It does not specify which agency or agencies will have the responsibility for monitoring and it does not provide funds to this agency or agencies to conduct this monitoring. One of the major difficulties of the current dredged material disposal program is that the responsibility for monitoring of the disposal operations is not clearly defined and probably most importantly, no agency has been given sufficient funds to conduct the monitoring program in a meaningful way. Unless these two areas are fully de- lineated in this guideline, then the monitoring program is called for in this seciton will likely prove to be of limited value. 22 8.12 DELEGATION OF MANAGEMENT AUTHORITY FOR INTERIM OCEAN SITES This section specifies the measurement of certain chemi- cals. I suggest that ammonia and manganese be added to this list. These are two chemicals which based on our studies are released from almost all ocean dumping operations in- volving dredged sediment in sufficient concentrations to be of potential concern to aquatic life at the edge or near the disposal site. V* 450 ------- Mr. T.A. Wastler -7- September 23, 19 76 228.13 GUIDELINES FOR OCEAN DISPOSAL SITE BASELINE AND TREND ASSESSMENT SURVEYS UNDER SECTION 10 2 OF THE ACT Subsection (c) This section states that sufficient control stations outside a disposal site shall be established, etc. It is inappro- priate to call these stations control stations. They are reference stations, not control stations. There is an im- portant difference in planning and conducting studies under conditions where a true control exists; this situation does not exist in open water disposal. A reference area may be used which some times can be utilized to indicate the possible magnitude of the changes that have taken place at a dump site in the absence of any dumping. OVERALL EVALUATION From an overall point of view, the US EPA and the Corps of Engineers and other agencies who have participated in develop- ing these draft guidelines are to be commended on the significant improvement that has been made over previous guidelines. With minor modifications, these regulations and criteria can be made more technically valid and therefore more in accord with the technical information available today on the environmental impact of dredged material disposal in natural waters. If there is interest on the part of the EPA or other govern- mental agencies, I would be pleased to meet with them to discuss any aspects of these comments. 6. Fred Lee Director GFL/lgl Enclosure 459 ------- UNIVERSITY OF TEXAS AT DALLAS CENTER FOR ENVIRONMENTAL STUDIES ENVIRONMENTAL IMPACT OF DREDGING AND DREDGED MATERIAL DISPOSAL PAPERS £ REPORTS Listed below are the papers and reports published by G. Fred Lee and his associates concerned with the environmental impact of dredging and dredged material disposal, 1. Lee, G.F. and Plumb, R.H. "Literature Review on Research Study for the Development of Dredged Material Disposal Criteria" U.S. Army Corps of Engineers Dredged Material Research Program, Vicks- burg, Miss. June (1974). 2. Lee, G.F. "Potential Environmental Problems of Dredging and Dredged Material Disposal" Proceedings 6th Pacific Coast Con- ference on Dredging, 62-68 (2975). 3. Lee, G.F., Piwoni, M., Lopez, J., Mariani, G., Richardson, J., Homer, D,, Saleh, F. "Research Study for the Development of Dredged Material Disposal Criteria" U.S. Army Corps of Engineers Dredged Material Research Program, Vicksburg, Miss. November (1975) . *4. Lee, G.F, "Comments on Navigable Waters Procedures and Guide- lines for Disposal of Dredged or Fill Material, Institute for Environmental Sciences - University of Texas-Dallas, Occasional Paper No. 5 (1975). 5. Lee, G.F. "Significance of Chemical Contaminants in Dredged Sediments on Estuarine Water Quality" Report submitted to US EPA to be published Proc, Estuarine Pollut. Workshop, Pensacola (Feb. 1975). Mimeo available from Center for Environmental •Studies - University of Texas-Dallas. 6. Lee, G.F, "Critique of US EPA Proposed Regulations Governing Disposal of Dredged and Fill Material in Navigable Waters" Federal Register 4_0(173), 1975 , 41292-41298. Mimeo available from Center for Environmental Studies - University of Texas- Dallas . 7. Lee, G.F., Lopez, J.M. and Piwoni, M.D. "An Evaluation of the Factors Influencing the Results of the Elutriate Test for Dredged Material Disposal Criteria" Proceedings ASCE Specialty Conference on Dredging and Its Environmental Effects, Amer. Soc. Civil Engr. 253-288 (1976). 8. Lee, G.F., Lopez, J. and Mariani, G. "Leaching and Bioassay Studies on the Significance of Heavy Metals in Dredged Sediments" Pres. at Inter. Conference on Heavy Metals in the Environ,, Toronto, Canada, October, 1975 (In press). H«0 ------- - 2 - 9. Lee, G.F. "Dredged Material Research Problems and Progress" Environmental Science 6 Technology 1_0_ 334-338 (April, 1976). 10. Lee, G.F. "Environmental Impact of Dredging, Dredged Material Disposal and Dredged Material Research in the U.S." Center for Environmental Studies - University of Texas-Dallas, Occasional Paper No. 10 (1976). ^ 461 ------- #62 Response to comments by Dr. G. Fred Lee, University of Texas at Dallas, Texas. 221.1 - Changes have been made in Subpart C of the criteria to require the examination of the environmental impact of alternatives to ocean dumping as well as ocean dumping itself. 227. 6 - The redraft of Section 227. 6 and the related discussion in the EIS adequately respond to this comment. 227. 7(e) - The criteria clearly state that this 25% oxygen depletion allowance may occur after initial mixing following a four hour time allowance. This is a perfectly adequate time allowance for immediate oxygen demand during which pelagic biota might be impacted without opportunity for avoidance. 227, 13 - This section has been redrafted to reflect these comments as well as others received on the same subject. Appendix G and the text of the FEIS incorporate discussion of the points raised here. 227. 27 - This section has been redrafted to allow for the use of an application factor different from 0. 01, when there is reasonable scientific evidence to support such a change. The LPC as defined here applies to both dredged material and to municipal and industrial waste. We feel that the 0. 01 application factor affords a measure of safety for the environment that is necessary in those cases in which there is no direct evidence that a different application factor should be used. It is recognized that the water quality criteria as promulgated by EPA deal with chronic exposure. While this may not be a true picture of the amount of an organism's exposure during an ocean dumping operation, it does provide the best scientific basis of toxic effects of specific pollutants that may be present in dredged u ------- #62 2 material or in sewage or in industrial waste. For regulatory purposes we feel that by applying the water quality criteria a uniform standard will be met. However, the application factor can be varied based on reasonable scientific evidence on a case-by-case basis, and we feel that this provides the desired flexibility indicated by these comments. 228. 9 - It is not within the purview of these regulations to provide funds for monitoring or any other purpose. Any such action must be done by statute, not by regulation unless specifically authorized by statute. Since this is an EPA regulation, it may be assumed that all actions indicated are an EPA responsibility unless speci- fically delegated to another entity. 228. 12 - This section deals with the delegation of authority for management of ocean dumping sites; not for the management of certain chemicals. There is sufficient authority in the delegated authority to allow the collection of all necessary data. 228. 13 - We feel that the term "control stations" is an adequate description within the context of these regulations. We realize that other terms might be preferred by some, but we do not feel a change is necessary or desirable. H 463 ------- 23 September 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Environmental Protection Agency 401 M. Street, S.W, Washington, D.C. 20460 Dear Mr. Wastler: This letter is in response to the request for comments on the Proposed Revised Ocean Dumping Regulations and Criteria as published in the Federal Register, 28 June 1976. As you may know, the American Society of Ichthyologists and Herpetologists (ASIH) is dedicated to the study and conserva- tion of fishes, amphibians, and reptiles. The dumping of various materials into oceans has the potential to affect marine fishes and their food supplies and habitats adversely. Therefore, I provide you with the following comments on behalf of the ASIH Committee on Environmental Quality. On p. 26645 of the Federal Register of 28 June 1976 is the statement "The Agency has found that defining a trace contaminant in numerical terms is scientifically impossible." Yet in Part 227, Subpart B, subsection 227.6, several materials that are known to affect fishes adversely, namely organohalogen compounds, mercury and mercury compounds, and cadmium and cad- mium compounds may be permitted to be dumped as "trace contaminants," Certain of the organohalogen compounds in particular can be concentrated by marine organisms, even from sources that could be termed "trace contaminants." We are also concerned that several dumpings of "trace contaminants" in the same or nearby dumping sites would quickly raise the levels of these compounds well above what could be termed "trace" levels. Concern is also expressed over the assumption that if a dumped material does not cause harm to the marine environment within a period of four hours, the material is acceptable for ocean dumping. Because an observable surface phenomenon such as a fish kill does not occur within four hours is no reason to assume that the dumped material is acceptable. H 465 ------- Mr. T.A. Wastler 23 September 1976 Page 2 We are also concerned that polluted dredged material is excluded from the list of substances that can be dumped only as "trace contaminants." There seems to be little if any basis for what appears to be a double standard in this instance. Also, little if any concern is given to the biological effects of dumping dredged materials. - There have been several studies showing that dredged materials can adversely affect marine organisms, particularly benthic forms, and also damage or otherwise alter habitat. We hope that our comments will be considered carefully before the proposed regulations and criteria are finalized. Sincerely, Wa Chairman Biological Sciences and Chairman Committee on Environmental Quality cc: Dr. Richard Highton Dr. Bruce B. Collette WRCrbjr WALTER R. COURTENAY, JR. DEPT. OF B OiOG'CAl SOfc'NCES I vOk'DA ATLANTIC UNIVERSITY BOCA *AiON, Fl 33431 466 ------- #63 Response to comments received from the American Society of Ichtyologists & Herpetologists 227. 6 - Because the materials mentioned in 227, 6 may be bio- accumulated and become toxic, their dumping is prohibited except when they are present as trace contaminants. Levels established through bioassay procedures in 227, 6 are intended to provide the best possible protection of the marine environment within the present state of knowledge. 227. 29 - A fish kill could occur at great depths and the results may not be apparent until the fish die and float to the surface, perhaps many hours or days after the kill occurred. The bio- assay test procedures are designed to prevent any such situation occurring within a level of reasonable probability. 227. 13 - Dredged material is subject to the same criteria as any other material proposed for dumping. H 467 ------- UNITED STATES DEPARTMENT OF COMMERCE The Assistant Secretary for Science and Technology Washington. D.C, 20230 September 24, 1976 U. S. Environmental Protection Agency 401 M Street, S.W. (WH-548) Washington, D.C. 20460 Attention: Director, Oil and Special Materials Control Division (OSMCD) Dear Sir: The draft environmental impact statement, "Proposed Revisions to the Ocean Dumping Criteria," which accom- panied your letter of August 1976, has been received by the Department of Commerce for review and comment. The statement has been reviewed and the following comments are offered for your consideration. General Comments EPA's June 28, 1976, statement revision includes some of the Department of Commerce's (DOC) May 18, 1976, recommen- dations? however, it omits an earlier recommendation which deals with what we believe should be readily available information. We recommend adding a sub-paragraph (f) to Section 227.25, which would read: "The applicant will submit results of all tests of toxic, pathogenic, carcinogenic, mutagenic, teratogenic, or bioaccumulation characteristics of the raw materials, intermediates, products, services, or wastes which he has conducted in connection with his research and development, production, quality control, promotion and distribution activities." The recommended requirement applies particularly to toxic substances whose nature is such that ocean dumping is less expensive than treatment and discharge to community sewers or to surface waters. The information is needed for design- ing environmental baseline and monitoring programs for ocean dumping operations; for designing and operating waste segregation, treatment, or disposal works; and for ensuring compliance with ocean dumping criteria. H 469 4 „ ------- 2 The National Marine Fisheries Service (NMFS) is concerned with the continued omission throughout the statement's text of mention of important resources other than commercial and recreational fisheries. Both commercial and recreational fisheries depend upon the continued productivity and protection of areas supplying the basic nutrients upon which biological life depends. This basic productivity in turn sustains the existing commercial and recreational fisheries. We do not feel that an appraisal (as outlined in the current criteria) of a potential dumping area can determine site suitability until all aspects relating to biological productivity are considered. Therefore, we recommend that delineation of areas of high primary biologi- cal productivity be listed as a specific factor for consideration in determining potential ocean dumping sites. As disposal sites are moved farther offshore and ocean dumping is more stringently regulated, there will be a need for larger, faster and more sophisticated vessels and services to meet dredging and haulage requirements. In addition, private industry is beginning to enter the dredging field as can be attested to by recent Title XI mortgage loan applications received by MarAd. Heretofore, the Corps of Engineers was the sole builder and operator of hopper dredges in the United States. Past experience has revealed a need for improved design, construction, and operational regulations for dredging and hauling vessels. Revised criteria might include damage stability standards such as draft limitations, two-compartment criteria, and cross-flooding capability. It may also be necessary on certain rare occasions to "emergency dump" waste materials in order to ensure the safety of human life and to prevent the loss of the vessel. It is recommended that a discussion of vessel design and operational criteria be included in the final statement. Since vessels engaged in ocean dumping may be crossing or maneuvering within established shipping lanes, they could pose an impediment to commercial navigation. It is, therefore, suggested that the ocean dumping regulations require consul- tation with the National Ocean Survey of the National Oceanic and Atmospheric Administration (NOS-NOAA). It is suggested that the Marine Protection Research and Sanctuaries Act Amendments of 1974, P.L, 93-254, be included as an appendix to the final statement. Specific Comments Reevaluation of Mercury and Cadmium Criteria H 470 ------- 3 Pages 79-85 - We are concerned that the EPA, upon reevaluation or mercury and cadmium criteria, is proposing to allow the same concentrations of cadmium in the proposed rules (see part 227.22(f)(2) 38 PR 2861B) as those presently authorized since 1973. That is, dumping will be allowed if "cadmium and its compounds are not present in any solid phase of a waste in concentrations greater than 0.6 rag/kg, and the total concentration of cadmium in the liquid phase of a waste does not exceed 3.0 mg/kg-" These concentrations appear very high in light of the statement on page 81 that the recommended acute and chronic levels for marine waters are 320 ppb and 5.0 ppb respectively. These levels are supported by recent studies by the National Marine Water Quality Laboratory which indicate that cadmium concen- trations well below 0.6mg/l are acutely toxic to three of four crustacean species tested, have a delayed lethal effect on a bivalve mollusk, and cause the larvae of a finfish to be less capable of coping with environmental stresses in temperature and oxygen. For example, Eisler (1971) showed that a 0.32 mg/1 cadmium concentration was fatal to 50% of sand shrimp and hermit crabs in 96 hours in waters of 20°C and 20 o/oo salinity, and that a 0.42 mg/1 cadmium concentration was fatal to 50% of the tested grass shrimp. Shuster and Pringle (1969) found that oysters subjected to a 0.2 mg/1 flow-through concentration of cadmium began to die only after the fourth week; however, all were dead by the nineteenth week. Middaugh, Davis and Yoakum (1975) reported a significant reduction in the capability of larval spot to survive thermal stresses or low dissolved oxygen after exposure to a 0.5 mg/1 concentration of cadmium for 96 hours. Furthermore, according to Dethlefsen et al, (1975a, 1975b), even if concentrations are kept below 075" mg/kg marine organisms may accumulate cadmium to potentially harmful levels. To our knowledge, no larval stages of crustaceans or bivalve mollusks have been tested for cadmium toxicity. Howevar, adult and larval shrimp, crabs, lobsters, clams and scallops, impor- tant to the domestic fishery, inhabit oceanic waters off the U.S. coasts. Through predicted dilution, the DEIS (p. 82) attempts to justify the proposed allowance (see part 227.6(b)(2), 41 FR 26657) of cadmium and its compounds in the solid phase of a material in concentrations less than 0.6 mg/kg, and the total concentration of cadmium in the liquid phase of a material of less than 3.0 mg/kg. The DEIS should thoroughly discuss how these concentration allowances were derived in view of (1) the inability to evaluate safety factors and the lack of w rn> : I JL ------- 4 knowledge concerning the rates of solution and/or biotrans- formation of cadmium in the solid phase as cited in the DEIS (page 84), (2) the several studies of cadmium impact on marine organisms cited above and (3) the apparent lack of such impact studies on larval crustaceans or mollusks. The DEIS also should explain how the 4 hr. time limit was derived for rendering the compound harmless. In this regard, alternatives of shorter time limits should also be discussed. Page 87, paragraph 1 and 2 - The DEIS should discuss the desirability of also running bioassays on larval Crustacea and fishes for shorter times, since the sensitive larval stages of important living marine resources, such as penaid shrimp, are likely to be found at or near the dumpsite. We are further concerned that the proposed testing of organisms which have less than a 5% mortality when used as a control would preclude sensitive indigenous organisms. For example, shrimp larvae may be found too sensitive and, therefore, not tested. Thus an adequate understanding of the effects of a toxicant on a given area may not be possible. We feel it would be helpful to test and compare a number of sensitive organisms to at least determine comparative mortalities. In this regard, we reiterate that running bioassays for shorter times, similar to the procedure described for phytoplankton, may allow a wider range of organisms to be tested. However, if use of an organism is infeasible, the same life stage of a similarly sensitive and taxonomically close organism should be used. Literature cited: Dethiefsen, F., H. von Westernhagen and H. Rosenthal. 1975a. Cadmium uptake by marine fish larvae. Helgolander wiss. Meeresunters. 27:396-407. Dethlefsen, F., H. von Westernhagen and H. Rosenthal. 1975b. Accumulation of cadmium by embryos of herring, flounder and garpike under different salinity regimes. International Council for the Exploration of the Sea. CM 1975/E:9 Fisheries Improvement Com, 15p. (Mimeo. Preprint, subj. to Rev.). Eisler, R. 1971. Cadmium poisoning in Fundulus hetero- clitus (Pisces: Cyprinodontidae) and other marine organisms. J. Fish. Res. Bd Can 28: 1225-1234. Middaugh, D.P., W.R. Davis, and R.L. Yoakum. 1975. The response of larval fish, Leiostomus xanthurus, to environ- mental stress following sublethal cadmium exposure. Contrib. Mar Sci. 19:13-19. H «2 ------- 5 Shuster, C.N., Jr. and B.H. Pringle. 1969, Trace metal accumulation by the American eastern oyster, Crassostrea virginica. Proc. Nat. Shellfish Assoc. 59:91-103. Page 90 - The list of possible constituents in sediments on this page does not include antimony. Pages 104-105 - It is suggested that MarAd's Chemical Waste Incinerator Ship Project be mentioned in the section concern- ing incineration at sea. MarAd is presently considering federal support for the development of a U.S. flag operated incineration at sea capability. This project is in harmony with the intent of the Marine Protection, Research, and Sanctuaries Act. A Pinal Environmental Impact Statement describing the Chemical Waste Incinerator Ship Project was issued on July 2, 1976. Thank you for giving us an opportunity to provide these comments, which we hope will be of assistance to you. We would appreciate receiving six (6) copies of the final state- ment. Sincerely, Deputy Assistant Secretary for Environmental Affairs ------- #64 Responses to comments received from the Department of Commerce, Washington, D. C. General Comments We do not feel that it would be necessary for an applicant to submit results of all tests of toxic pathogenic, carcinogenic, uregenic, teratogenic or bioaccumulation characteristics of all materials involved in his processes or products, etc. We are interested in the waste and the characteristics to that waste in terms of its adverse impacts on the marine environment; certainly adequate attention should be given to improvement and inplant processes so as to eliminate waste products of toxic or other adverse effects on the environment. It would not be of value to the EPA regulatory program to have results of all of the tests ever performed on the applicant's processes. It would be diffi- cult to interpret the results of these tests and apply them to the waste disposal problem, particularly if the test involved products which did not enter the ocean or intermediates of raw materials which were not part of the waste process. A number of factors are listed in the criteria for the selection of ocean dumping sites. Among these are proximity of the pro- posed site to nursery or breeding areas. If NOAA would care to provide EPA with maps showing such high productivity areas, EPA would be happy to use these in dump site designation surveys. B 474 ------- #64 2 Vessel design and safety considerations are beyond the scope of these regulations and the EIS on the criteria. The U. S. Coast Guard has primary responsibility for setting standards involving vessel operations insofar as safety is concerned; the criteria used by the Coast Guard in setting such standards are not pertinent to this EIS. It is required that all vessels engaged in ocean dumping report their activities to the U. S. Coast Guard, which is the U. S. agency responsible for law enforcement on the high seas and for insuring that there is no interference with navigation. It is not apparent what advantages would be obtained by requiring consultation with NOS in this regard. Both the Ocean Dumping Act and the Convention are included as Appendices to the Final EIS. Specific Comments Pages 79-85 - Regarding the reevaluation of mercury and cadmium criteria, these concerns are adequately addressed in the Final EIS and in the redraft of section 227. 6. Page 87 - The EIS is not an appropriate place to discuss methodologies of manning a bioassay. EPA has published a Bioassay Methods Manual and additional implementation manuals will be published dealing with benthic bioassays. The criteria state specifically that appropriate organisms to be used are those which have been documented in the scientific literature as being v* 475 ------- #64 3 sensitive and useful for running bioassays. There are certainly many stages of organisms which cannot be used because they cannot be maintained in the laboratory under viable conditions. Page 90 - This list did not include a number of constituents which might be present in sediments. It was not to be intended to be exclusive, but to indicate the ones that cause major problems. Since the presentation of such a list was misconstrued by many commenters, a list of constituents was deleted, and the major constituents to be analyzed for was left to the discretion of the permitting authority. Pages 104-105 - Incineration at sea is presented in the criteria and in the DEIS as a potentially viable technology. We feel that the mention of a specific project in this regard would tend to be regarded as a recommendation, and EPA does not wish to make specific recommendations at this time. H47G ------- NL CERTIFIED MAIL - RETURN RECEIPT REQUESTED September 24, 1976 Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) U.S. Environmental Protection-Agency 401 M Street, S.W. Washington, D. C. 20460 Dear Mr. Wastler: On June 28, 1976, the U.S. EPA published proposed revisions of ocean dumping regulations, 41 FR 26644, which were promulgated pursuant to the Marine Protection Research and Sanctuaries Act of 1972. N L Industries, Inc. encloses herein our comments on the revisions for which the time for public comment was extended to September 24, 1976. N L Industries, inc. (N L) manufactures titanium dioxide pigment at a plant located on Raritan Bay in New Jersey Wastes from this manufacturing operation, consisting of spent sulfate solutions and gangue solids slurry, have been disposed of at sea at the "Waste Acid Site" since 1948. The disposal operation has been the subject of extensive studies by the Woods Hole Oceanographic Institution and others, which have shown no appreciable effects of the disposal operation on the marine environment nor on biota of the region after 22 years. NL Industries, Inc. P.O. Box 420, Hightstown. N.J. 08520 Tel. (609) 448-3200 If 477 ------- Mr, T. A. Wastler U.S. EPA Washington, D. C, -2- September 24, 1976 (1) With respect to Part 227, and specifically to 227.29, we believe that the newly proposed methods for estimation of the maximum concentration of a dumped material, wherein field data can be used to indicate initial dispersion and diffusion of the waste, as opposed to the presently existing method of calculation of the concentration in a hypothetical mixing zone are important and commendable revisions. From the studies referred to above, it is known that, because of neutralizing reactions that occur rapidly and because of extremely high rates of dilution/disper- sion that prevail at the disposal site, the actual concentrations of the acid-iron wastes at the disposal site are far less than those calculated when the existing definition of the mixing zone is used. The methodology used to determine concentration at the site should recognize conditions known to occur and prevail at the disposal site. The use of field data, or in their absence, theoretical oceanic turbulent diffusion relationships, are methodologies vastly superior to that of the existing criteria. (2) In addition to recognition of conditions known to prevail at the site, we recommend that an additional, alternative methodology to determine acceptability of a material for ocean disposal be incorporated into the proposed criteria. Extensive and detailed surveys of hydrographic, chemical, and especially biological conditions, which have been conducted long after many years of use of the disposal site, which show no appreciable effects * 470 ------- Mr. T. A. Wastler U.S. EPA Washington, D. C. -3- September 24, 1976 of the disposal operation on the marine environment should be incorporated into the criteria as a method of showing accept- ability of the proposed disposal, as an alternative to the bioassay - LPC - concentration methodology of the proposed revisions. Estimating the impact of a proposed ocean disposal operation on the marine environment is obviously a complex and difficult task. One possible method is that adopted by EPA in its pro- posed criteria: use the results of a bioassay, with an applied "safety" factor of 0.01, which is itself an arbitrary judgment, to establish a Limiting Permissible Concentration (LPC). Then, estimate actual concentration by means of field data, diffusion calculations, or a calculated concentration in an arbitrary mixing zone. We believe that an alternative method, comprising an extensive biosurvey of the disposal site after the site has been in use for a number of years, is superior. Such biosurveys are almost certainly more costly, especially in committment of scientific resources, than the bioassay - LPC - concentration method, but they should be available to permittees as a means of showing no detrimental effect on the marine environment, and that ocean dumping criteria are met. This approach is especially appropriate where such surveys have already been conducted. H 479 ------- Mr. T. A. Wastler U.S. EPA Washington, D. C. -4- September 24, 1976 The Draft Environmental Impact Statement prepared by EPA on the Proposed Revisions summarizes the studies which have been made of the effects of acid waste disposal on the marine environment iPages E-12 thru E-25), but those findings have not been incorporated into the proposed revisions and criteria. (3) The proposed regulations provide in Part 220. 3(d) that issuance of interim permits will terminate on April 23, 1978 unless a treatment facility is under construction or the criteria are met. There is no indicated rationale supporting the choice of this date, which is unduly restrictive in that it does not allow sufficient time for meeting the criteria. (4) An excessive margin of safety exists in the bioassay - LPC methodology. Presently, bioassays are to be conducted for 96 hours, and in certain cases for 48 hours, whereas organ- isms are not exposed to disposal materials for these lengthy periods. Additionally, the application of a 0. 01 factor to the bioassay LD^q value to derive the LPC constitutes another large safety factor. A dilution-type of bioassay should be specified, or, alternatively, a bioassay using waters collected in the wake of the barge. (5) The factors to be considered in evaluating the need for dumping are specified in Part 227. 15. We believe that subsection (b) H£80 ------- Mr. T. A. Wastler U.S. EPA Washington, D. C. -5- September 24, 1976 therein which calls for an analysis by the Agency of raw materials and the manufacturing or other processes are not factors that should be required to be considered. Further- more, as a practical matter, the evaluations of alternative raw materials and of alternative manufacturing processes relate to the complex business factors inherent in the conduct of a manufacturing operation. Consideration of these is beyond the scope of expertise of any environmental regulatory body. Similarly, the evaluation of potential improvements in process technology, as specified in Part 227. 16(a)(1) is too complex and administratively impractical to constitute a meaningful requirement. (6) Parts 227.29(b)(1) and (2) would require the use of mathematical models in conjunction with field data in determining the LPC. We can see little basis for this requirement since field data may be sufficient in and of itself for the intended purposes without subsequent use of a mathematical model. The use of such models should be permitted where appropriate, but not required. (7) Part 227. 12(a) states, "Solid wastes... may be generally approved for ocean dumping provided they are... rapidly and completely settleable, and they.. . would be deposited or rapidly H 481 ------- Mr. T. A. Was tier U.S. EPA Washington, D. C. -6- September 24, 1976 dispersed... " (emphasis added). This wording is unclear since material cannot be both dispersed and rapidly settled. In any case, we believe the wording should be expanded to include clearly harmless substances which have been shown to disperse completely in the water column without damage to benthic, demersal, or pelagic biota. We would be pleased to discuss these comments in further detail with appropriate EPA representatives. Very truly yours, r I I ("i H. G. Rodman Principal Environmental Engineer Environmental Control Department C'j. E. Silver Counsel - Environmental Affairs V* 482 ------- #65 Response to comments received from NL Industries, Inc. Hightstown, N. J. 1. This comment on section 227.29 is appreciated. 2. It is necessary to have a set of criteria by which a prejudgment can be made as to whether or not a waste is acceptable for ocean disposal from an environmental standpoint. These criteria are incorporated into Part 227 and in appropriate sub-sections. Part 228 deals with the designation of sites and the continuing management of sites. During the process of designating sites, surveys will be made of and specifications will be developed on what waste can be dumped at each site and under what conditions. In addition, the criteria of section 227. 27 allow the use of different application factors and different approaches to initial mixing if reasonable scientific evidence exists to show that these are appro- priatee to use in specific cases. We believe that the combination of these two sets of criteria provides a reasonable degree of pro- tection to the environment and also a reasonable opportunity for applicants to demonstrate that their wastes are not having a detrimental effect on the environment. 3. We feel that the allowance of five years from the effective date of the Act for meeting the criteria or finding an alternative means of disposal is quite adequate. tf 483 ------- 2 4. The application factor of 0. 01 to an acute bioassay is an accepted practice for avoiding chronic effects on the environ- ment where the actual impact to a specific area is not known. The regulations have been modified to allow for the use of a different application factor when there is reasonable scientific evidence to support such a factor. 5. There are many factors to be considered in determining the need for dumping. While it is true that EPA staff would not be in a position to go into an individual plant and specify certain process changes, it is also true that in many cases plant operations can be tightened up so as to reduce the total amount of waste material. There have been cases in which a change of raw materials has brought about environmental and economic benefits to the company involved. This provision is parallel in many respects to the provision in the Federal Water Pollution Control Act which requires the use of best practical treatment and best available technology by certain dates. We feel that the retention of this provision provides a parallelism with other water pollution control legislation. 6. 227. 29(b)(1) and (2) - The regulations have been modified to make the use of mathematical modesl optional. 7. 227. 12(a) - If the complete text of this part is read as written and published, we think the wording is quite clear, explicit and understandable. H 484 ------- DEPARTMENT OF THE NAVY OFFICE OF THE CHIEF OF NAVAL OPERATIONS WASHINGTON. B.C. 20330 Ser 451/710^06 24 Sep 1976 IN RCK-V RftPEft TO Mr. T. A. Wastler Chief, Marine Protection Branch Oil and Special Materials Control Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: The Navy is deeply concerned with any regulations which affect ocean dumping because of the importance of research, emergency jettisoning and timely dredging to fleet operations. Accordingly, we have carefully reviewed your proposed revised regulations on Ocean Dumping published in the Federal Register 28 June 1976, and herby submit comments. The regulations, particularly Part 228 governing dredge material disposal, are generally vague and incomplete in assigning various responsibilities. In addition, assignment of survey responsibility to permittees, as is present practice, is inequitable and impracticable. Enclosure (1) discusses the problem of assignment of responsibility in detail and contains the basis for the Navy's recommendation that the U.S. Army Corps of Engineers (in coordination with the Environmental Pro- tection Agency) is the appropriate agency to prepare site environ- mental impact statements and to perform site studies and surveys. Enclosure (2) contains additional comments and recommenda- tions regarding specific provisions of the regulations which will hinder Navy operations and research. The comments and discussion of Enclosure (1) and some of Enclosure (2) ralate to a pervasively inadequate definition of lead agency responsibility. The deficiency is clear, but selection of one of a number of alternative corrections is most appropriately a subject for working level discussions rather than published immutable responses. For this reason, enclosure (1) does not suggest specific changes to the language of the 480 ------- regulations. Instead, the Navy hereby offers the services of its personnel to participate in a working group to revise the subject regulations in light of comments received. The Navy contact is Mr. Carl B. Irwin, (OP-452), in the Office of the Chief of Naval Operations, Pentagon, Washington, D.C. 20350, Telephone 697-3639. (1) Lead Agency Responsibilities - Dredge Material Disposal, w/attached comments to Coastal Engineering Research Board 2 June 1976 (2) Additional Specific Comments and Recommendations Sincerely, J. B. GROFF By direction Encl: 2 ------- 09CD/LMC 24 September 1976 Proposed 40 CFR Part 228, Criteria for the Management of Disposal Sites for Ocean Dunping, published 41 FR 26661, 28 June 1976. Lead Agency Responsibilities - Dredge "Material Disposal The purpose of these comments is to suggest that responsibilities for ocean dunp site surveys, designation and management are ambiguously defined in the subject proposed regulations, it is further suggested that the U. S. Army Corps of Engineers (OOE) under Environmental Protection Agency (EPA) si^aervision, is the appropriate agency to prepare a site environmental impact statement (EIS) and to perform supporting site studies and surveys. As discussed in enclosure (2)4 consistent with the requirements of 33 U.S.C. §1413, it is assumed that all of Part 228 is applicable to dredged material disposal sites. H 48G Enclosure (1) ------- Responsibilities ambiguously Defined Ijogically, determination of the environmental inpact of ocean dunping must preoeed final selection of disposal sites. EPA apparently recognizes this because in its introduction to the proposed regulations it states: "Ml the sites are designated as interim because the Via/^ /9a|>ncJl 4-/* ontfi t*?vwMn4'al c3tt^rX> Xkiu \J1LJ fcXti *1 cU v3JmvJCi# I# J» li» 1*^4 iL» inpact studies and to prepare environmental impact statements prior to the designation of any site as a fianl ocean dutping site." 41 FR 26647 Unfortunately, the regulations are ambiguous both as to who is to prepare the environmental inpact statement (EIS5 and the supporting studies or surveys. Part 228.3(a) identifies both pre-site designation functions and site management functions subsequent to designation; but §228.3 (b) assigns site management responsibility only for post-designation functions. Part 228.4(e) states that baseline and trend assessment requirements may be developed on a case-by-case basis or a joint EIS for imiltiple-site areas may be prepared; but, as to responsibility, only states that trend assessment and baseline surveys "shall be the responsibility of the Federal government." Part 228.4(e) (1) refers to use of data from studies and surveys by the OOE now in progress. In referring to the related matter of site H 487 2 ------- monitoring, subsequent to disposal, Part 228.9 refers to surveys by EPA, NOAA, other Federal agencies, contractors, and special studies by permittees, but does not indicate whether such surveys will be specially required by EPA or the COE or whether data from surveys established for other reasons is being referred to. Part 228.13 which specifies guidelines for surveys states that plans for all surveys for EIS data must be approved by EPA, but the responsible surveying organization is not identified. Present Practice (pre-Part 228) Impractical Present practice has often had the permittee perform site studies and prepare an EIS. As indicated above, the proposed regulations do not clearly alter this practice. It is sug- gested that this practice is impractical. "[0]ne of the major obstacles to preparation of environmental impact statements is the collection of adequate and reliable baseline information. The sophistication and time required to assemble an adequate data base is considerable, and the assessment of the data is a major scientific undertaking." 41 FR 26647 Site studies and surveys are expensive undertakings. Personnel at the COE Waterways Research Station have estimated that the cost of acquiring baseline data alone at as much as a half a million dollars per site. (See attached letter to CERB.) Very few dredging operations are of sufficient size to justify such an investment. No wonder "The agency has also found that much of 3 H 488 ------- the data submitted by per sore who are dumping wastes at sea is less than adeguate." 41 FR 26647 Recannendations If permittees had the financial and scientific resources to survey a proposed dunp site, it would still be inpractical for a permittee to prepare an EIS. Although a permittee may be capable of surveying one site it is questionable whether even a government agency permittee, such as the Navy, oouM ever fund surveys of all alternate sites for preparation of an EIS for a single dredgirg project. No permittee could determine the extent of site utilization by other subsequent permittees. Imposition of the full burden of EIS preparation and supporting surveys on the first site user would be grossly inequitable even if it were possible. Logic and equity dictate that the 00E and the EPA conduct site studies and surveys arsl prepare the sits EIS. Ocean dunping sites are designated by EPA. Dredged material disposal in ocean waters is regulated by the OOE. The vast majority of ocean dumping of dredged material is performed by the COE. (Ninty-five percent of all federal dredging is performed by the COE). Ultimate responsibility for both site selection and ocean disposal is conferred on the EPA. 33 U.S.C. §1413 Cc). The EPA and the OOE have or can readily acquire the scientific resources for site studies H 489 ------- and surveys. The COE, as the predominate national dredger, is better suited than any other user to fund site studies and surveys. As site designator the-EPA is best suited to idertLfy alternative sites for inclusion in an EIS. As site managers, the EPA and the COE know or can specify future site usage, another critical input to an EIS. Only the EPA and the COE have a continuing involvement in ocean dunping carmensurate with their responsibility for regulation of ocean dunping. Therefore, the EPA and the COE should be designated as the agencies responsible for not only site designation but also for the integrally related site studies, surveys and EIS, The proposed regulations also deal with the site monitoring after site selection and dunping. Parts 228.9 and 228.13. It is suggested that the reasons supporting designation of the EPA or the COE as the responsible agency for site studies and surveys and EIS preparation even more strongly support designation of the EPA or the COE as the responsible agency for the monitoring program. The baseline measurements supporting site designation and the trend assessment surveys supporting site monitoring can best be coordinated by a single lead agency to assure that they produce ccnpatible data. The agency which has became familiar with the site by preparing the EIS and conducting the supporting studies and surveys is most able to assess the iirpact on the site as it occurs. To saddle the first or any other single user with such responsibility would be inequitable. To iitpose the burden on all users wauld be inefficient and redundant. 5W 480 ------- Ho user organization could assume such an open endfed financial caimitment. A user organization's existance might terminate which wuld ultimately place the responsibility on the site manager in any event. Only the EPA and the OOE will have lifetimes and scopes of interest coextensive with their responsibilities under the regualtions and the act. Conclusion In conclusion for the reasons stated, it is suggested that (1) site studies and surveys preparatory to disposal site designation, (2) preparation of EIS's preparatory to disposal site designation, (35 dredge material disposal permit issuing, and (4) disposal site monitoring, should all be the responsibility of a single lead agency - the EPA or the OOE under EPA supervision. The proposed regulations should clearly specify this responsibility. As a minimum, the* last sentence of the introductory paragraph of Part 228.4(e) should be revised to read, "Studies, surveys, impact assessments and inpact statements for the evaluation and potential selection of dumping sites will be conducted and prepared by EPA, or for dredge disposal sites the U.S. Army Corps of Engineers, in accordance with the requirements of g§228.5 and 228.6(a), except that:" The proposed regulations should also clearly require that each site EIS address the cumulative effects of the total dredge material disposal the EPA and the OOE intend to permit. Cost of each of these activities should be provided £or in the appropriations for the single lead agency except to the extent it is fcxind practical to apportion than among permittees as a one time 6 H 491 ------- fc«stuuLu tee proportionate to dredge disposed. Hie only activities which should be the permittees' responsibilities are the dredging, dredge transportation, dredge material sampling and classification, and disposal. Postscript Prior to publication of the proposed regulations, the" Naval •Facilities Engineering Command made real ted catments by letter to the Coastal Engineering Research Board (CERB) of the OCE. These earlier oonments to the CERB deal nore extensively with the practical reasons favoring a baseline data research effort by the COE and ultimately preparation of dredge material ocean dunp site EIS's by the OQE. We understand the letter has been forwarded to the Operations Division of the Office of the Chief of Engineers under the Direction of Civil Narks within the COE. A copy is attached for your information. If we may be of any assistance in considering these oatroents, please do not hesitate to contact us or the Naval Facilities Engineering Conmand, particularly, Iarxy Martin Corcoran, Assistant Counsel, who can be reached at 202-325-9081. Attached: NAVFAC (Speck) ltr to CERB dtd 2 June 1976 7 H 482 ------- DEPARTMENT OF THE NAVY NAVAL FACILITIES ENGINEERING COMMAND 200 STOVALL STREET ALEXANDRIA, VA 22332 in nmv «tn« to 09CD/J.MC 2 June 1976 Coastal Engineering Research Board Kingman Building Fort Belvoir ¦, VA 22060 ATTN: COL James L. Trayers, Executive Secretary Res Ocean Dumping Site -Need for Base Line Data Ref: (a) Telecon 14 May 1976 between Dr. John Harrison, Chief of the Environmental Effects Laboratory, Waterways Experiment Station, and Larry .Martin Corcoran, Assistant Counsel, Naval Facilities Engineering Command Dear Sirs: The purpose of this letter is to reduce to writing and expand upon suggestions made by Larry Martin Corcoran, Assistant Counsel, Naval Facilities Engineering Command, 5 Hay 1976 as part of the public comment portion of the three day meeting of the U.S. Army Coastal Engineering Research Board (CERB) at Fort Belvoir. Mr. Corcoran suggested that the Corps of Engineers (Corps) institute a program for the acquisition of base line environmental data for all ocean dumping sites presently designated by the Corps and the Environmental Protection Agency (EPA). BACKGROUND The Deportment of the Navy engages in numerous dredging efforts which result in ocean dumping of dredged material; dumping which requires the preparation of environmental impact statements (EIS). Ocean dumping requires a permit issued by the Corp of Engineers. Issuance of permits appears to be governed by no less than three sets of Environmental Protection Agency (EPA) and Corps regulations (40 CFR 227; 40 CFR 230; 33 CFR 209). Each set of regulations and the EIS requires equivalent data in the permit application relating to the ecology of the dump site and the environmental impact of dumping. The requirements are imposed on all permit applicants, both governmental and private. * f V * Wrir\ H" 483 ------- Attachment 1 to this letter illustrates the need for an applicant to have available extensive base line environmental data prior to application for a permit. Indeed, 40 CFR 227.4(b), which requires every interim permit applicant to "submit an evaluation of potential environmental impact", highlights an applicant's clilema. Mot only must an applicant acquire base line data for a site prior to approval, but in order to prepare an environmental impact statement, base line data for alternative sites considered must also be obtained. The cost of such data acquisition may be high, particularly in view of the fact that, if a permit is not issued, much of the effort maybe wasted. As a practical matter, thorough acquisition and evaluation of environmental impact is simply not done for all but the most extensive (i.e. expensive) projects, and even then is often after the fact in the sense that alternatives are fully considered (in the EI TO only after the selection is made. These difficulties and practical consequences were well illustrated in a recent suit involving the IJavy and the .Naval Facilities Engineering Command. The suit was tiRDC v. Callaway, et. al., 389 F.Supp. 1263 (D. Conn. 1974), 8 ERC 1273 (2d Cir. 75-7048 1975). RECOMMENDATION We suggest that the acquisition of base line environmental data should be the responsibility of the Corps of Engineers working in conjunction with EPA. The Corps, working with EPA, selects the sites and issues permits. If properly performed, both these functions require an initial evaluation by the Corps of the local environment, and in a general way an evaluation of the scope of possible impacts resulting from dumping of foreseeable dredge or other material. This recommendation is also made in the interests of overall efficiency of manpower and research resources. Under the present system, each applicant for a dumping permit is charged with the acquisition of base 1ine environmental data for a number of sites in order to support an application to dump at a site previously selected by the Corps. This repetition of effort by each applicant in turn is wasteful. Furthermore, as a practical matter, unless a project is extensive and well funded, the data acquisition will be cursory or incomplete. 2 H 494 ------- The Corps could independently acquire base line data for gll dump sites or, alternatively, coordinate efforts by applicants to acquire complete data. To sugcjest that the cost is high (hundreds of thousands of dollars according to COL G. II. Hilt at the Hoard meeting May 5 and Dr. Harrison in F.ef. (a)) is only to confirm the contention this Command makes herein; that under the present regulations, it is not possible for a permit applicant to accumulate adequate environ- mental data front which to make a full informed decision. The result is expensive and time consuming law suits against applicants. See e.g., HRDC v. Callaway, supra. RES TON EC TO CORPS COESIIKKTS When this comment was made to CEKD May 5, COL G. li. ililt responded that the Waterways Experiment Station (WES) is presently involved in a study of a number of ocean dump sites both to acquire base line data and to ascertain the environmental impact of dumping. He also noted that the cost of acquiring base line data for just one site can be as high as a half a million dollars. COL Ililt was kind enough to arrange for Dr. John Harrison of WES to call Mr. Corcoran of NAVFAC to discuss further the work of WES. These discussions were most informative and as a result a consensus wps reached that this recommendation remains valid. Discussions with Dr. Harrison (Pef. (a)) indicate that the WES effort involves both acquisition of base line data and evaluation of dumping effects over a four year period for three dumping sites. The ocean dumping portion of the program is in its third year. Part of the WES offoirt is to develope the means to predict environmental impact upon any ocean dump site once the base line (initial) environmental conditions are known. However, the initial base line conditions must be known for each site. The WES acquisition of base line data for the test sites is necessary for, but is only applicable to, those test sites. It is the predictive models which WFR hopes to develop from the sites, not the base line data, which will be applicable to all other dump sites. CONCLUSION In order for the WES effort, if successful, to be of any 3 H 495 ------- utility in the future, the base line environmental conditions for other dump sites must be known. Although anyone can obtain the data, as a practical matter only the Corps of Engineers has an interest and a corresponding scope of responsibility covering nil ocean dump sites. Therefore, i-t is recommended that in formulating its research needs: (1) CLUB include a program to begin the acquisition of base line environmental data for ocean dump sites. (2) If appropriations are not presently available for sach a program, an administrative office and procedures should be created to coordinate the research efforts of all permit applicants so that the broadest and most complete data acquisition possible is obtained with the least overlap. CF.P.D should maintain a file and index of currently available data for use by any Federal activity doing dredcing. (3) As a follow-on to its program for acquiring base line environmental data, CBRB should begin a program based on the WES effort, to identify the environmental impact at all sites of dumping of foreseeable duir.p materials. We thank CERB for this opportunity to comment on its research program and expresses our appreciation for the generous assistance of COL G. II. Hilt and Dr. John Harrison in formulating these comments. If there are any questions on these comments, please do not hesitate to contact this Command, particularly, Mr. Corcoran, Assistant Counsel, who can be reached at 202-325-9081. Coun/el Copy tot COL G. H. Hilt Dr, John Harrison 4 H 435 ------- nuuouiiniuu u x REGULATORY REQUIRFHENT FOR BASELINE DATA The purpose of this attachment is to illustrate the need for base line data for preparation of ocean dumping permit applications and for preparation of an environmental Impact Statement. ' The r:PA Criteria for revaluation of Permit Applications for Ocean Dumping, 40 CFR 227, arc taken as a representative example. Section 227.33 requires non-toxic substances which may damage the environment to be dumped so as to avoid damage, In order to meet this requirement, the nature of the environment (i.e., base line data) must be known to the applicant. Section 227.34 requires, in the dumping of acids and alkalis, consideration of effects on pll, synergistic effects, and formation of toxic compounds. Again, in order to meet this requirement, the nature of the environment must be know to the applicant. It is equally clear that extensive base line environmental data is •required to meet each of the following additional requirements of 40 CFR 227: g 227.36 "It is prohibited .to dump any material which would: (a) Extend the range of biological pests, viruses, pathogenic microorganisms or other agents capable of infesting, infecting or altering the normal populations of organisms, (b) Degrade uninfected areas, or (c) Introduce viable species not indigenous to an area." § 227.4(b) For every interim permit the applicant must "Submit an evaluation of potential environmental impact." g 227.6(c) Dumping will be permitted "unless there is evidence that the proposed disposal will have an unacceptable adverse impact on municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas), or recreational areas." g 227.6(d) Decisions are to be based on "extent of the environmental impact," etc. g 227.64(a) (1) "Disposal sites should be areas where benthic life which might be damaged by the dumping is minimal (b.) (1) Times for dumping should be chosen "to avoid interference with the seasonal reproductive and migratory cycles of aquatic life in the disposal area." H* 457 ------- Using the base line data and data relating to the proposed disposal material, an applicant must determine the probable effects of dumping. Nevertheless, the analysis must begin with a thorough knowledge of the initial environmental conditions at the disposal site. 2 \\ 488 ------- ADDITIONAL SPECIFIC COMMENTS AND RECOMMENDATIONS I. -Part 221, "Application for Permits", dealing with emergency permits is totally unsatisfactory and unrealistic. The Navy operates worldwide and has already encountered two instances where emergency dumping was necessary or seriously considered. On one occasion, application was made to EPA for emergency permission to dump, under existing regulations, and EPA was totally unable to respond to the request. It is virtually certain that instances will occur in the future where emergency situations will require that emergency permission to dump be obtained. These situations could develop anywhere in the world, and the requirements for documentation, display of the permits, public hearings, etc., totally ignore the realities of these emergency situations. It is also noted that the provisions of the Ocean Dumping Convention and the Ocean Dumping Legislation provide for much more liberal dumping in emergency situations than that contained in the draft regulations. In short, it is believed that the draft regulations need to be revised to provide substantially greater flexibility in the Administrator to permit dumping under emergency conditions without the bureaucratic strictures imposed thereon by the draft regulations. H iS9 Enclosure (2) ------- 2. Section 225.2(a) (3) requires the Corps of Engineers (COE) to provide a description of the characteristics of the proposed disposal site to the Regional Administrator, EPA if the site is not designated as a continuing use site. The COE regulations require the applicant to provide this information. This phil- osophy imposes on the applicant the full cost of a site "baseline study" (as defined in 228.2(b)) if not also the cost of a "disposal site designation study" (as defined in 228.2(d)). In the event that the proposed site comes a "designated site" the regulations do not preclude any other applicant from using the designated site, nor do they include a mechanism for allowing the initial applicant to recover any portion of the expended costs for site evaluation. 3. Section 227.13(c), "Dredged Materials", specifies that an elutriate test must be performed on the sediments to be disposed of to determine their suitability for ocean disposal. After the elutriate test is made, allowances are provided in Section 227.29 for estimating dilution through mixing and dispersion. The implication in 227.13(c) is that the elutriate is used when considering dispersion and dilution. However, the amount of sediment available for interaction with the water column varies considerably with the method of dredging used, thereby suggesting that the method is somewhat unrealistic. In other words, there r <; O H J o o ------- alee two difficulties with the elutriate test which are not adequately considered by the regulations: a. The elutriate test results will vary with each sample. The regulations do not specify the number to be done, which if any may be disregarded, or the statistical methods to be used in interpreting the results. b. There is no demonstrated correspondence between the specified elutriate test and field experience. In addition, no acceptable mathematical models are defined for estimating mixing and dispersion in the sea nor are criteria defined for determining what is an acceptable model. Without such information, knowledgeable comments cannot be made. 4. Part 228.1, "applicability", states that, "This Part 228 is applicable to dredged material disposal sites only as specified in 8228.4 te)". Referring to 8228.4(e), this statement is ambiguous. It could mean dredged material disposal sites may only be used for dredged material? or it could mean dredged material disposal sites need comply with the requirements of SS228.4(e), 228.5 and 228.6(a)., and no others in Part 228. In view of 33 U.S.C. S1413, it would appear that the former interpretation is intended. It is suggested that the last sentence in §228.1 be deleted to remove the ambiguity. 501 ------- 5. The definitions of "disposal site evaluation study" and "disposal site designation study" in section 228.2(b), introduce an ambiguity into the definitions of "baseline" or "trend assess- ment" surveys. A disposal site evaluation study is stated to include trend assessment surveys and is to apply only to an existing site. A disposal site designation study, on the other hand, is stated to include baseline surveys and i^-to apply only to a proposed site. Therefore, the implication is that baseline surveys and trend assessment surveys are not the same, though they may consider the same parameters. More specifically, the "baseline" survey provides synoptic data for determining water quality, benthic, and biological conditions before disposal operations, while the "trend assessment" survey provides synoptic data for determining water quality, benthic, and biological conditions as a result of ocean disposal operations. Separate definitions of "baseline" and "trend assessment" surveys are warranted; the former referring to proposed sites and the latter to existing sites. 6. Section 228.3 establishes disposal site management respon- sibilities. These responsibilities can be divided into two categories; (1) pre-site designation functions, and (2) desig- nated site functions. Site designation studies are pre-site designation functions. Section 228.3(b) assigns the site 4 rt 502 ------- management responsibilities for designated sites only, but does not assign the critical pre-site designation responsibilities. In addition, section 228.1 does not-apply provisions of section 228.3 to dredge material disposal sites. The assignment of management responsibilities for dredge material disposal sites should be explicitly stated in section 228.3. The assignment should include the designation of a lead agency for both pre- designated and designated site management functions in the dredge and non-dredge disposal categories. Also included should be a mechanism for allocating a proportional share of the costs for "disposal site evaluation" and "disposal site designation" studies. 7. Section 2*28.5, General Criteria for the Selection of Sites, suggests that disposal sites will be located beyond the edge of the continental shelf. Viewed in light of the paucity of information on the deep oceans, this requirement should be reconsidered with regard to dredging material. It is threfore recommended that the following phrase be inserted at the begin- ning of Section 228.5(e): "With the exception of dredged material dumping sites," Sites previously designated for the disposal of conventional munitions have been deleted from the list of approved sites. The 5 H 503 ------- Nivy conducted extensive surveys of conventional munitions disposal sites in the fall of 1971 to evaluate the impact of ! pist disposal actions. Results of these surveys were reported j in Environmental Condition Report for Numbered Deep Water Munitions Dump Sites and in several professional journals. Based on available evidence, it was concluded that such operations did not result in significant long-term environ- mental damage. The Secretary of the Navy (Defense) placed a moratorium on ocean disposal in 1970 (?) and there are no current plans to resume dumping on a regular basis. It is recognized, however, that where munitions in stowage, particularly over- seas, become too unstable and.hazardous to shi*. to de-mill facilities, ocean disposal represents an environmentally acceptable alternative with increased personnel safety. 9. The draft regulations as now written are difficult to follow. An attempt is made to establish relatively precise criteria covering a number of situations while recognizing that we are dealing with a highly complex, variable environment where precise answers do not always exist. In addition, the proposed regulations cover such diverse operations as industrial wastes, dredge material and general scientific research. The regulations would comprise a greater volume but would be easier to comprehend if disposal criteria and methods for evaluating the effects of the diverse operations were addressed by categories of operations rather than as a composite. rt 504 ------- #66 Response to comments received from the Department of the Navy, Washington, D. C. General We are unaware of any situation in the ocean dumping program where it has been required of a permittee to perform site studies and prepare an EIS. We believe that from time to time surveys of dump sites may be required of permittees, particularly if they request a site different from one that has already been approved; however, any environmental impact statement would be prepared by EPA as the Federal agency authorizing the major Federal activities. This applies to dredged material sites as well as those for the disposal of other materials. The Ocean Dumping Act places upon EPA the responsibility for designating ocean dumping sites (Section 102(c) of P. L. 92-532, as amended). These regulations in no way change this statutory responsibility. Within the context of this overall responsibility, EPA may use whatever data are available and may acquire additional data as necessary by arrangement with other Federal agencies or by con- tract as appropriate. In terms of dredged material sites, the COE may use sites other than those designated by EPA; when they do, then they have the responsibility for site survey and designation, including, where necessary, the preparation of an EIS. EPA is also responsible for the monitoring of all sites desig- nated by it. Permittees may be asked to participate in the moni- toring program, but EPA is responsible. We do not believe the regulations are at all ambiguous in these areas. ------- #66 2 Specific Comments 1. The Ocean Dumping Act requires a permit for all dumping other than that done to safeguard life at sea. The Act also requires public notice of all permit actions. The provisions in the regulations re- garding emergency dumping reflect fully the requirements of the Act and the Convention and are no more restrictive than is required by the explicit provisions of the Act and the Convention. The authority to issue emergency permits is retained by the Administrator, and, on occasion, emergency permits have been issued within one day. We are unaware of any occasion when a bona fide request for an emergency permit was received from the Navy and EPA was unable to respond. EPA believes that the regulations as now drafted provide adequate flexibility for administrative action in emergency situations. 2. If an applicant wishes not to use a designated site, it is reason- able that he should bear the financial burden of site designation, since a new site would be designated only for his benefit. 3. The section 227. 13 on dredged material criteria has been revised in response to the comments received. The discussion in the EIS on the dredged material criteria responds to the con- cerns in this comment. The number of samples analyzed in any J particular situation must be determined on a case-by-case basis, and this is left to the discretion of the permit issuing authority. H 506 ------- #66 3 4. The language in sections 228. 1 and 228. 4(e) has been modified to clarify the applicability of these sections. 5. EPA does not agree that separate definitions of "baseline and trend assessment" surveys are needed. Both surveys are essen- tially the same from an operational standpoint, and trying to develop an artificial separation would make the terminology more confusing. The difference between the two types of surveys is not the surveys themselves, but in how the data are used, i. e. . for "designation" or "evaluation", and different definitions are provided in these cases. 6. EPA is the lead agency in all cases, as provided in the Ocean Dumping Act. The Act does not provide statutory authority for cost-sharing. 7. The provision for using off-the-shelf sites wherever feasible is an explicit provision of the Ocean Dumping Act. The regulations cannot change statutory requirements. 8. No dumping of conventional munitions has been requested since the effective date of the Act. Any proposals for such dumping would require designation of sites for this purpose. Since there are no plans for dumping, we do not believe it is reasonable to include historical sites on the list of currently approved interim sites and thereby be committed to doing surveys for sites that may never be used. 9. The regulations are indeed complex; however, the suggestions here would add to the complexity rather than reducing it. H 507 ------- MEMORANDUM DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE "" Public Health Service to Director, Oil and Special Materials Control date: September 27, 197o Division, EPA FROM : Principal Environmental Officer subject: Coranent on Proposed Revisions to Ocean Dumping Criteria The subject revisions have been reviewed by the Food and Drug Ad- ministration and the National Institute for Occupational Safety and Health. With respect to the revisions per se, earlier suggested changes recommended providing limitations for lead in addition to those for cadmium and mercury. We assume that the recommendation was not followed because international standards include only mercury and cadmium. Turning to the DEIS, the terras "solid phase" (227.6 item b(l) and b(2)% etc.) and "solid state" are not well enough defined. The teims may mean "dry basis" - or, any solid particles present 111 the waste, and should be clarified, perhaps in the definition section. Otherwise, the DEIS appears to adequately cover the numerous factors that must be considered in relation to the practice of ocean disposal of waste materials of widely varying natures. cc - Mr. Charles Custard •OEA, DHEW H 509 ------- #67 Comments received from U. S. Department of Health, Education, and Welfare, Public Health Service, Washington, D. C. Duplicate of comment #56. rt 510 ------- ©' H r-"", "T ' r*•* I 1 ' v v » municipality of metropolitan Seattle September 9, 1976 Chaii*ah €. CAtCV OOMWOItTM SrANi.tr P. Kcattr Nancy PiiiNS M. F. C***0 Vanik Hooaw Attitl* Davis, Jr. Dr. Geraldine V. Cox Chairperson, TPC Raytheon Company P.O. Box 360 West Main Road Portsmouth, Rhode Island, 02871 IWYH L (8vo) Youns Cmaklii Dilauiymti QCi Ukiuaw ¦ CI SfNtON T.mHilu _ W Kvaaicl PnVkIi lAtA^HCRC Wavhi D. Iaikin John R. Miui* Randy Rcvfiit Sam Smith J(an(tic Williams Roust I. Nit* JgNM 0. S'lllMAM Paul Bah^in Ru»t C*ow Roiint B. Ounn R. *. (Bci) Ctuvi Ml*l lc*»Y Dav« Woo*** T*acy J. Owcm Btti Scams Bunici Stun no ak: -s l. IfOMil ICXU»N() John Fovrmim, J*. Paul Namasiy,J«. j Jij*Skai«a« DtAN WOBTMIHCION i •SSV.EZ t''ilflCT$, Hak?£«o B» Chqatc ' —N • E«ctFrrfi Diftcc70R pACC Dear Dr. Cox: Comments on Proposed Guidelines for Ocean Dumping The good points in their proposed regulations could best be reflected in the shift of responsibility to the Regional Ad- ministrators to make decisions based upon receiving quality needs and biotic responses. The establishment of tidal phase as the mixing period and toxicity as a function of the dispersion rate certainly makes sense for areas with substan- tial tidal flow. It is also important to apply the test of economically feasible alternatives to determine the merits of a disposal site, although we might have some reservations about the need of having the Corps of Engineers intervene to seek the necessary waiver which would allow dumping if no other economically feasible method existed. The exclusion for fish waste is reasonable and perhaps it might be appropriate to include the qualifications prohibiting such dumping in harbors with "restricted circulation" or delet- ing the reference to harbors completely and leaving that decision to the administrator. A major point of concern is the detailed review process which could lead to delays of seven months or more. While the stated intent of these proposed regulations was to provide all that is needed in the way of regulatory and hearing requirements, in all probability they will not replace the environmental assessment and impact hearings nor the due process of law one might resort to if the adjudicatory hearing by the Regional Administrator or his designated presiding officer is unfavorable. H 511 ------- Dr. Gerald V. Cox 'September 9, 1976 Page Two It would seem to be unnecessary regulation to require the same arduous permit hearing requirements for a research project such as a dye tracing or labeling study which might be delayed beyond the point of value, to say nothing of the$1,000 permit fee which would have to be added to the project cost. I wonder if OMB or GAO would allow such a permit cost in an EPA research grant? The impact determination includes both aesthetic, recreational and economic values which certainly are appropriate, but to include "potential" recreational and commercial values may be interpreted to go far beyond actual or anticipated impacts. While the bilogical monitoring program has considerable merit, the detail sampling outline varies from very explicit instructions to gross generalities. If EPA is going to develop the monitoring, site evaluation and designation studies themsevles, then it would not be necessary to include these guidelines in the regulations, and they could tailor the experimental design to the specific project needs. For instance, in some areas there may only be one aquati • species of overriding interest or significance and the biological response of other creatures would not matter if the one was impacted. In several places there are references to either depth or distance criteria (i.e., disposal of cremation ashes more than three miles off shore, sinking vessels in more than 1,000 fathoms and 50 nautical miles from land, disposal mixing in the first 20 meters or less stringent sampling requirements for waters over 200 meters deep) which unless required by existing law, will be arbitrary and potentially counter-productive. If a ship could be sunk near shore in shallow water without otherwise disrupting the water quality, it might add to the habitat and subsequent species diversity in a reef-like configura- tion beneficial to man, rather than some deep, unreachable off-shore hole where in fact it might remain rather well preserved. It would also seem doubtful that any number of persons' ashes could be spread anywhere on the ocean without a detectable impact beyond the immedi- ate wake of the vessel involved. Beach replenishment is mentioned in the exclusion clause; however, there may be some conflicts with its application in other areas of the proposed regulation text. I trust these comments will be of benefit to your overall review of the proposed guidelines on Ocean Dumping.* Ver^ Ralph S. Domenowske Research Coordinator RSD:sbc for c. J. Henry *1 wonder why we insist on calling this "Ocean Dumping" when with environmentally sound guidelines it might be considered "Ocean Utili- zation" or "Ocean Application of Terrigenous Resources?" rt 512 ruly yours, ------- #68 Responses to comments received from METRO, Municipality of Metropolitan Seattle, Washington. The requirement for public hearings is a statutory provision of the Act for all permits issued, and much of the time required is used in providing adequate public notice. Applications which are not controversial and in which there is little public interest can be processed fairly rapidly. Section 228. 13 does not deal with the monitoring program, but the baseline surveys or trend assessment requirements which can be considerably different from the monitoring program. Where considerable flexibility can be permitted in approach for baseline survey, the guidelines are indeed general. In those cases where specific information is required, the guidelines are quite explicit. We feel that the flexibility incorporated in these guidelines is an essential part of any experimental design for baseline survey. However, at the same time we feel that there is a minimum amount of information which will be required in all cases, and thus, fairly explicit guidance is given for such instances. Regarding the specifications for certain depths and densities, it is true vessels could be sunk in near-shore areas to help form a fishing reef. However, when this is done under an approved Federal or state program for habitat enhancement it does not come under the ocean dumping permit system. The specifications laid out for depths and distances from shore are intended to govern H 513 ------- #68 2 those situations in which such a Federal or state approved program either does not exist or the vessel can not be used in such fashion. We feel it is necessary to include a provision for potential uses, present use in the case that there may be some valuable resources that have not yet been developed, but should be preserved for future use. H 514 ------- 5®a ngi*L Ij DEPARTMENT OF ENVIRONMENTAL REGULATION 2562 EXECUTIVE CENTER CIRCLE, EAST MONTGOMERY BUILDING TALLAHASSEE, FLORIDA 32301 STATE OF FLORIDA REUBIN O'D. ASKEW GOVERNOR JOSEPH W. LANDERS, JR. SECRETARY September 28, 1976 Mr. T. A. Wastler Chief Marine Protection Branch (WH-548) Waterside Mall 401 "M" Street, S.W. Washington, D.C. 20460 Dear Mr. Wastler: Ocean dumping ic a matter of great importance to this agency and we value the opportunity of reviewing the currently circulating proposed criteria revisions. What follows is the result of this agency's initial staff review of your document, submitted in the spirit of assisting in the construction of a set of guidelines that will insure ocean dumping is always carried out in an environmentally acceptable manner. We are confident that the final rules will adequately cover our concerns regarding ocean dumping. The strength of this document will lie in conscientious application of the rule's directives: general broadcast of announcements of applications, determinations, granting of permits, and designation of sites; full disclosure of all aspects of each proposed action; thorough testing and assessment of all possible impacts; implementation of a responsible program for management of the designated sites. We take this opportunity to transmit our comments on the draft rules in an effort to assure that these goals are met. The problem of adequate notification still remains, even though the use of the 500 mile criterion is a step in the right direction. The Gulf of Mexico is a finite body of water bordered by only five states, of which Florida1s shoreline comprises more than any other three states combined. The combination of a small number of states sharing a common body of water and the disproportionate "presence" of these states along the shoreline argues strongly for a simple, automatic notification of Gulf states of applications, determinations Printed on 100% Recycled Paper H 515 ------- Mr. T. A. Wastler Page Two September 28, 1976 or other actions relating to ocean dumping in the Gulf of Mexico. The governor of each state would designate the agency to be notified of ocean dumping actions; in most cases, it would probably be that agency which normally handles EPA matters of this sort. We feel this would assure adequate pro- tection of a body of water which is being called upon at an increasing rate to accept the by-products of our advanced society, not only in the form of controlled ocean dumping, but also in the form of the diverse products, controlled and uncontrolled, arriving continually by way of the hundreds of streams and rivers emptying into the estuaries. With regard to "notice of applications" we have the following specific comments: 1. Section 222.3(a) fails to require provision of the application and supporting documentation to those to be notified. 2. Section 222.3(b), when looked at in connection with succeeding sections, provides that the only notice actually required to be provided is by publication in one newspaper somewhere in the "State in closest proximity to the proposed dump site" and in one newspaper in the office of the administrator or a regional administrator. 3. Section 222.3(b)(3) requires no notice to affected states until after an "emergency permit" is issued despite the possibility of no need for immediate action because of definition. Two sections are unacceptable as they stand: 1. Section 222.3(i) is a new provision which obivates almost all potential impact upon permit issuance by lack of notice to affected states and others. Safeguards designed to protect states or other persons if they are not notified are thereby negated. This provision should be stricken. 2. Section 222.3 (j) gives states only 30 days to respond from the date any notice is dis- patched to the agency. This time should be expanded and the application and supporting material should be required to be provided. rt 516 ------- Mr. T. A. Wastler Page Three September 28, 1976 Sections relating to the hearing process are 222.4 - 222.12. These sections establish a three level internal hearing process with narrow time frames and detailed filing requirements. In effect, EPA is creating a labyrinth of procedural requirements which an affected state must follow to the letter each step of the way. Layered in is broad, vaguely defined discretion on the part of the administrator, a regional administrator or their designee to grant or deny hearings at each step. Participation at each level is a prerequisite to proceeding to the next level. All this is potentially complicated by the fact that a state, at any level of the process, may receive no more notice of a hearing than the newspaper publication mentioned above. Illustrative of the problems is Section 222.10(a) which requires that an interested state, after participating in an initial hearing, must file a potentially complex request for an adjudicatory hearing within 10 days of dispatch of notice of intent to issue a permit. This could conceivably leave a state with very little or no time to prepare and mail its re- quest for this second level proceeding. Another example of potential problems is the fact that the presiding officer (not necessarily a lawyer under Section 222.6) may make rulings on the admissibility of evidence which are "final" (Sections 222.11(d) and (e)) and cannot be the subject of an interlocutory appeal, and yet there are no applicable rules of evidence (Section 222.11(e)(9)). A final example of the potential problems involved is found in Section 222.12. This section provides for the internal proceeding by an appeal to the administrator. To get to this stage, an interested state must have been granted and have participated in two evidentiary hearings. However, Section 222.12(f) purports to make an appeal a prerequisite to judicial review. Apparently, if a state has been denied a hearing at either of the two pre- ceding stages, it cannot appeal and, under these rules, can gain no judicial review whatsoever. Of paramount concern to us, of course, is the matter of impact upon adjacent states. The hydrographic behavior of the Gulf of Mexico, the currents, is such that the five Gulf Coast states are in reality an intimate community, liable to the impacts of actions of each other. It is because of this that we note the near absence of attention to the hydrodynamics of the Gulf throughout this document. We must emphasize that one of the major parameters to be considered is the behavior of the currents at and near the site. H 017 ------- Mr. T. A. Wastler Page Four September 28, 1976 As for the adequacy of information in an application, Section 221.4 requires that materials to be dumped be adequately and fully described, but permit definitions and review criteria contemplate the presence of materials which would be otherwise prohibited when they are in "trace amounts." EPA specifically omits definition of "trace amounts" thereby creating con- siderable vagueness as to what amounts of those prohibited substances can be dumped under various permits and a question as to whether EPA will require a description of their presence or effects when they are in the undefined "trace amounts." The treatment of the subject of impact assessment appears to be generally adequate and would be acceptable to us, were these rules addressed to "deep water" sites alone. However, our interpretation leads us to conclude that the rules also address such "ocean dumping" actions as beach nourishment in the intertidal zone and, although such actions would be subject to the laws of the state in whose territorial waters the action was to occur, we cannot emphasize too strongly the need for thorough evaluation of impacts. An example: the elutriate test, as here described, is adequate for deep water sites perhaps, but the assumption that it would reveal sediment- bound toxins is unacceptable, and dangerously applied to shallow water dumping projects. The matter of dredged material permits received considerable attention from our staff. Again, this is a process which, if implemented conscientiously, will insure adequate protection of our resources. It is during this process that judgements are made about the suitability of the materials for beach nourishment and we encourage the utilization of this material for this pur- pose whenever possible. The more of this material that is utilized, the less must be dredged from other sites which may cause harmful impacts. The subject of categories of permits still causes us great concern for, without assurance of conscientious concern for en- vironmental protection, the implementation of these sections runs the risk of many opportunities for "slippage." The mechanics for designation and issuance of various types of permits is involved to the point of convolution, with the result that we must commit ourselves to close scrutinity of each application as it passes through this phase of the pro- cess. Section 220.3(c) so defines "emergency permits" that they may be issued in situations in which there is no true emergency requiring immediate action. This exacerbates the problems created by the notice provisions in regard to such ft 010 ------- Mr. T. A. Wastler Page Five September 28, 1976 permits. Section 220.3(d) generally allows dumping under "interim" permits until April 23, 1978. However, a person presently ocean dumping is not so bound if he has a compliance schedule which will result in compliance with ocean dumping criteria (or a phaseout) by April 23, 1981. We question the advisability of blanket application of such dates in light of the length of time state and federal water pollution controls have been in existence. We are also con- cerned about the ability of the administrator to issue a general permit without the normal application when he deter- mines "that issuance of a general permit is necessary or appropriate." (220.3a) We approve of the proposed deletion of the wording regarding certification under Section 401 of the Federal Water Pollution Control Act Amendments of 1972 contained in Section 222.3(c) of the existing rules. However, we would suggest a provision requiring state certification for all permits unless the applicant affirmatively demonstrates that no certification is required. We specifically note that the issuance of "general permits" poses special problems for compliance with certification re- quirements. We suggest reconsideration of "general permits" in light of certification requirements, especially issuance of such permits without any application. Our past experiences have caused us to be particularly cautious about rules and regulations applying to ocean dumping. We are certain you appreciate our concern and accept our comments in the spirit of ensuring that the subject procedures will be so well designed that contentions between our agencies over ocean dumping actions will be a thing of the past. Please be assured that our sole motivation in this matter is the assurance of the long-term integrity of our Gulf and Atlantic coastal resources. To this end, we have requested that these comments be con- sidered as preliminary to a meeting between representatives of our agencies. We feel that only through such an open discussion of the issues can our concerns be adequately put to rest. We H 519 ------- Mr. T. A. Wastler Page Six September 28, 1976 will wait to hear from you regarding a time and place of mutual convenience to our staffs. Sincerely, {Joseph W. Landers, Jr Secretary JWL/tss cc: Bill White John Bottcher * 520 ------- #69 Response to comments received from the State of Florida Department of Environmental Regulation, Tallahassee, Florida. Many of the comments dealt with procedural and legal points in Sections 220-222. These sections have been modified based on many comments received on these subjects, and a general response to these comments is included in the preamble. Responses to other points raised in these comments follow. Trace Contaminants The rationale for not presenting a definition is given in the EIS. However, Section 227. 6 does provide a quantitative basis for deter- mining permissible levels, and this is perfectly adequate for regulatory purposes. Dredged Material Impacts Sections 227. 13 and 228. 4(e) have been redrafted to require testing of liquid, suspended particulate, and solid phases of dredged material, as well as of other materials proposed for dumping, and to apply the same site selection criteria for dredged material sites as for other dumpsites. Categories of Permits Emergency permits are issued only when there is a public health risk involved and there are no feasible alternatives to ocean dumping. The determination that these conditions exist is made by the Adminis- trator of EPA; in actual practice, the local health authorities and other appropriate regulatory agencies have been asked to certify that such conditions exist before emergency permits are issued. ^ r o 1 JL- ------- #69 2 While there is a marked degree of urgency in all emergency permit situations, immediate action may not be required in all cases; this is clearly stated in the International Convention, from which this provision in the regulations is derived. General permits are authorized by Section 104(c) of the Ocean Dumping Act. These are issued by promulgation as part of the ocean dumping regulations with ample opportunity for public review and comment. At the present time, only three such permits have been issued; these are published as Part 229 of these regulations. EPA has received no adverse comment on thes.- permits; the Agency believes that the conditions of dis- posal in these permits and the types of materials permitted by them are such that they are in full harmony with the intent of the Act. It is not apparent that there are any special problems of certification posed by these permits. H r, o o ' w A- ------- RAY B. KRONE CONSULTANT ON ESTUARIAL SEDIMENTS September 29, 1976 Mr. T. William Musser Ocean Disposal Program U. S. Environmental Protection Agency 401 H Street, S. W. Washington, D. C, 20460 Dear Mr. Musser: I have examined the Proposed Revision of Regulations and Criteria on Ocean Dumping in the June 28, 1976, Federal Register from the standpoint of technical adequacy. I have considered especially Section 227.13, Dredged Materials. These specifica- tions will provide a high degree of protection of ocean waters from contamination by dredged materials and at the same time include reasonable tests for completion by the applicant. I am particularly pleased to note that requirements for bulk sediment analyses (Jensen criteria) are omitted. The only suggestion that I can make is that a summary of the rules, or a simplification of the presentation would make thera more easily understood. Sincerely Ray B/Krone RBK:LG cc: Mr. Robert Engler 643 COOLIDGE STREET DAVIS. CALIFORNIA ft nop TELEPHONE (916) 783-2558 ------- #70 Response to comments received from Hay B, Krone, Davis, California. As part of the EPA and Corps of Engineers plan for imple- menting the criteria with regard to dredged material, an implementation manual for carrying out the necessary proce - dures will be prepared. This will summarize the pertinent parts of the regulations in a coherent fashion so as to provide operational guidance. ------- r| UNITED STATES DEPARTMENT OF COMMERCE W The Assistant Secretary for Science and Technology V Washington, D,G. 20230 September 30, 1976 U.S. Environmental Protection Agency 401 M Street, S.V. (WH-548) * "Washington, D. C. 20460 Attention: Director, Oil and Special Materials Control Division (OSMCD) Dear Sir: The Department of Commerce reviewed the draft environmental impact statement by the U.S. Environmental Protection Agency relative to "Proposed Revisions to the Ocean Dumping Criteria," and forwarded comments to you in our letter of September 24, 1976. Since that time, additional information has been received from the National Oceanic and Atmospheric Administration (NOM), which is pertinent to the project. These additional comments are forwarded for your information and consideration. We are pleased to have been offered the opportunity to review this statement. Sincerely, Deputy Assistant Secretary for Environmental Affairs Enclosure: Memo from NOM, Environmental Research Laboratories rt 525 ------- U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration ENVIRONMENTAL RESEARCH LABORATORIES MESA New York Bight Project Old Biology Building, SUNY Stony Brook, New York 11794 DATE: 22 September 1976 SEP 2 81976 TO FROM SUB J W. Aron R. L. Swanson ? DEIS 7608.16 - l*roposed Revision to Ocean Dumping Criteria Section 227.7(e) would permit dumping to depress ambient oxygen concentrations by 25%, no matter how low ambient concentrations may be. It would be wise, in addition to the 25% limit, to prohibit oxygen depression below 3.0 ml/1 through dumping. The definition of allowable impact is at the heart of the Proposed Rules. While the DEIS (p. 133, para. 1) indicates that Impact Category D was chosen as the basis for regulation, it seems that Impact Category C (DEIS, pp. 131-132) is actually used in the Proposed Rules (Sec. 228.10 (1)). Impact Category D specifies no significant damage to "the biota", whereas Category C and the Proposed Rules allow some damage to the biota but no statistically significant declines in "valuable commercial or recreational• species" or in species "essential to the probagation of such species." The definitions of intolerable impacts in the Proposed Rules seems appropriate and more realistic than that of Impact Category D in the DEIS. Indeed, this statement of unacceptable impacts (Proposed Rules, Sec. 228.10) seems to me very carefully and realistically framed. The rationale is not given for specifying the numbers of replicate cores, grabs, etc. to be taken in baseline and trend assessment surveys (Proposed Rules, Sec. 228.13 (i)). It is not clear, for most purposes, that any replication of bottom samples is efficient sampling strategy, and the three to five replicates rt 536 ------- Page 2. indicated would certainly result in less precise estimates of benthic faunal abundance than if the same number of single samples were taken. If sampling requirements are to be imposed, one might require that particular parameters be estimated with specified precision. For instance, it should be reasonable to require estimates of mean densities for the 10 dominant species of dumping areas and of control areas with 30% of their actual values at 95% confidence. Similar requirements could be placed upon other parameters. ^r>27 w * ------- #11 Response to comments received from the Department of Commerce, Washington, D. C., September 30, 1976. 227, 7{e) - The amount of dissolved oxygen present at any particular location is the result of the interaction of many factors. EPA does not believe a specific level should be specified as a general requirement, since this could be below normal ambient levels at the dumpsite. The percentage approach provides a reasonable degree of flexibility in achieving a safe environmental level. 228. 13(i) - The number of replicates specified in the guidelines are a result of consultation with a large number of scientists from Federal and state government and the private sector. These are essentially judgmental factors based on the extensive experience of many of these scientists sampling the marine environment. We do not feel that the guidelines should be so precise as to specify a statistical approach toward these surveys. A good deal of flexi- bility has to be maintained in order to allow for differences in conditions at the site or in the type of waste to be disposed of at the site and its probable impact. These are essentially levels of effort type of estimates and should be treated as guidance rather than hard and fast rules. * G20 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY criRiprT- Comments on Proposed Ocean Disposal Regula- nr? r SUBJECT tions Vol. 41 Fed. Reg. pp 26644 et. seq., DATE: J m June 28, 1976 FR0M: M. E. Chandler1^®' Attorney and Region VI Coordinator (6AEL) m Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) 1. On review of Section 222 concerning actions on a permit applications, it is my opinion that the public hearings, adjudicatory hearings and appeals to the Administrator are properly set forth and in accordance with the Administrative Procedure Act {APA) . It must be remembered that the first hearing on an application is a public hearing (by law) and is in no way an adversary proceeding. It is an information gathering hearing, the decision from which is ex parte an agency employee. The APA, at Section 557 provides for an opportunity to be heard, by the parties, on « specific findings and conclusions. The Agency may make such opportunities by rule and it has chosen the adjudicatory hearing process at the regional level. This is consistent with the APA and is similar to the NPDES process. There is also no requirement for findings and recom- mendations from a Presiding Officer, who may or may not do so. But in either case, I think the first adversary proceeding is properly at the regional level. The appeal is then to the Administrator [the "Agency" in the terms of the APA Section 557(b)] o_n the record without further proceedings. 2. Section 222.3(g) should probably say that copies should be sent to those agency's listed therein, as in subparagraphs (c) - (b) and (h), although we have always presumed that notice was mandatory. It is not necessary to list requirements of the Fish and Wild- life Coordination Act. They, and we, should be presumed to know the requirements. 3. While I think it is proper for a person, in order to request adjudication, to have been a participant at a public hearing (he has heard the evidence), I don't believe we should exclude other interested persons as parties [see Section 221.11(a) and APA Section 554 (c)]. -CPA Form 1320.6 (Rev. 6-72) H 029 ------- 2 But, Query - Is adjudication open to request when there has been no public hearing? The Regional Administrator makes a determination in either case. Who would be an interested person in the case of no hearing? I would presume just the permittee. 4. I wonder who the adverse party would be in an adjudicatory hearing called by the Agency (see 222.10 (b)(2). I can understand this discretion for public hearings [Part 222.4(b)(2)], but the Regional Adminis- trator has authority under 222.12 to require additional information before acting on an application. 5. I would suggest that a time computation be included in the regulations, similar to 40 CFR 125.44 for the NPDES program. The reason for this suggestion lies in the addition of adjudicatory hearing processes in the regulations. 6. I would also suggest that a citizen-suit provision (authorized by Section 105(g) of the Act) be included in the regulations. The Act requires a 60-day notice to the Administrator or the Secretary prior to commencement of an action on an alleged violation. Procedures for that 50-day notice should be included in the regulations and such procedures may be similar to 40 CFR 135. rt 330 ------- #72 These are internal comments from EPA Regional staff which have been considered in the revisions to Part 222. ------- REPL.Y TO ATTENTION Oft DEPARTMENT OF THE ARMY OFFICE OF THE CHIEF OF ENGINEERS WASHINGTON, D.C. 20314 5 OCT 1976 DAEN-CWO-M Mr. T. A. Wastler Chief, Marine Protection Branch, Oil and Special Materials Division (WH-548) Environmental Protection Agency 401 M Street, S.W. Washington, D, C. 20460 Dear Mr. Wastler: The Army Corps of Engineers was very interested in reviewing your Proposed Revision of Regulations and Criteria regarding Ocean Dumping (Federal Register, Part III, dated 28 June 1976). Having done this, 1 can unequivocally state that we indorse the new criteria. We feel that the criteria, while obviously more stringent, will definitely further our common goal of affording greater protection to the delicate marine environment which borders over half our Nation. Our review of the criteria has been both thorough and extensive. In addition to soliciting comments from every Corps coastal Division and District, we convened, here in Washington, a special Ocean Dumping Review Panel. Corps ocean dumping experts from around the country reviewed our total program while developing specific comments to your proposed criteria and associated EIS. With my personal indorsement, I forward the Panel's comments (two inclosures) to you as the Corps official position. In conclusion, I wish to reiterate the Corps* support of your efforts. While we do offer some suggested changes, you will notice that all contain a common denominator - that is, to further clarify and support the Federal marine protection effort. 2 Incl As stated DRAKE WILSON Brigadier General, USA Deputy Director of Civil Works ^ouwcsv ------- Army Corps of Engineers suggested changes to EPA's Draft Environmental Impact Statement concerning the Proposed Revision of Ocean Dumping Criteria as published in the Federal Register on 28 June 1976. * * * * General Comments: 1. The Draft Environmehtal Impact Statement (DEIS) on the proposed ocean disposal Regulations and Criteria does an excellent job of describing the past history of ocean -disposal regulations and problems. Sections relating to dredged material are presented with accuracy and in proper perspective; however, those sections could be strengthened with adequate citations and documentation to support general and specific statements. Particular emphasis should be placed on past and current dredged material biological assessment and bioassay research. 2. It is suggested that the section in the EIS discussing tradeoffs to the more restrictive criteria be expanded; e.g., increased cost of testing. The restrictive ocean disposal criteria could in some cases increase the costs of dredging and would have an adverse economic impact on the private or governmental agency doing the work. This statement mentions very briefly in several chapters that there would be increased dredging and monitoring costs but makes light of the costs because of the natural environmental gains that would be made. It is suggested that EPA discuss in more detail the tradeoffs that will have to be made to meet the disposal criteria and what are the increased economic costs, both primary and secondary that would occur. t* 534 ------- The cost of monitoring programs is stated to be minor. Experience has indicated that major costs would be involved in monitoring deep water sites, especially if "statistical significance" is to be determined. Another problem arises with general sites at which differentiation between impact generating wastes must be determined. Cost effective studies may mean greater emphasis on laboratory studies with reduced field monitoring. 3. More dicussion and documentation of past and current bioassay and biological assessment studies conducted with dredged material by San Francisco District, New England Division, and WES studies should be included. 4. It is suggested that EPA clarify the implication of the impact cate- gories and their relationship to dredged material. It is the Corps interpretation that they do not apply. 5. The EIS should reference more completed and some ongoing field research; e.g., San Francisco District, New England Division, EPA V, EPA Narrangansett, CERC, Canadian, etc. Specific Suggested Changes: Page ii, line 17 - Change "five" to four." Page 8 - Should cite or reporduce annex fully in Chapter 1 rather than paraphrasing it. Page 30 - Should cite or document Bio-assessment work here for dredged material. Page 30, line 8 - Add "chemical" after "total." Page 31, line 12 - Suggest that the term "disposal site" be used in place of "dump site" throughout DEIS. Page 33 - Suggest use of word "contaminated" in place of "polluted." Page 34, line 12 - Cite the bioassay work being done by WES, EPA, etc., and the work of the Executive Committee. Page 40 - Define "trace contaminant" as biologically available or active portion of dredged material, especially in the case of metals and nutrients. Page 44 - Suggest placing data lists in a formal table with title and other supportive information. 2 rt 5 3 G ------- Page 51, line 21 - Insert "within appropriate wastes" before "for," Page 62 - Good point regarding material other than wastes. Page 65 - Suggest not using the term "perfect" in regard to water pollution control tests as there are no "perfect" tests. Page 65, line 10 -The wrong section is cited, should cite section from proposed criteria. Page 66, line 18 - Suggest that "restricted" be deleted and replaced with "unique and complex," Page 66, line 19 - Delete "lack of." Page 67, line 3 - Insert "of dissolved constituents" after "dispersion," Page 72, line 6 - Insert "1973" before "ocean." Page 78, para 4 - There is not general agreement that trace contaminants are defined as stated, especially for mixed, complex materials as dredged material. Page 79, line 11 - Add after "EPA" - "and the G£." Page 80, para 1 - Should discuss geochemical transformations as they probably dominate the system. Page 89, 3(a) - Insert after "substrate" - "using various physical analyses; e.g., density, grain size, distribution, mineralogy." Page 90 - Should discuss publication of testing procedures to be suppled the finld (Interim Guidance). Page 91 - Should discuss and cite bioassay methods. Page 137, para 2 - To be discussed in interim guidance. Page 148 - Should document the statement that an increase "in the state- of-the-art" mitigates costs of monitoring. Page 153 - Trend estimate should be based on budgets of all Federal agencies involved in their program. APP E - Appropriate or adequate documentation for broad statements concerning impacts and/or effects should be given. 3 330 ------- Army Corps of Engineers suggested changes to EPA's proposed revision of ocean dumping criteria and regulations published in the Federal Register on 28 June 1976, * * * * Suggested Changes: Paragraph 225,2 (c). Should be changed from — "...the Regional Administrator will within 15 days after receipt of all requested information and notice of intent to issue a permit by the District Engineer, make an independent evaluation..." to read ... "...the Regional Administrator will within 15 days after receipt of all requested information make an independent evaluation...." This change is suggested since we do not deem it necessary for a "notice of intent" to be provided in permit actions which EPA has viewed favorably. Paragraph 225.2 (e). Should be changed from — "...the District Engineer in writing within 15 days of receipt of notice of intent to issue the permit." to read "...the District Engineer in writing." This is consistent with the suggested change to Paragraph 225.2 (a) above. Paragraph 227.1 (d). Delete "standards" - Add — "criteria as defined in Subpart G." Paragraph 227.1 (b). Delete first two sentences - Add "With respect to the criteria to be used in evaluating disposal of dredged materials, this section and subparts C, D and E apply in their entirety. Sections 227.27(a)(3), 227.28, and 227.29 of subpart G apply. To determine whether the proposed dumping of dredged material complies with subpart B, only 227.4, 227.5, 227.6(a), (c), (d) and (e) and 227.13 apply." Paragraph 227.13 (c). Last sentence - change "227.27" to "227.27(a)(3)" - this clearly identifies the parts of 227.27 that apply to dredged material. Paragraph 227.6 (a)(5). This section should be deleted as it is meaning- less as written and cannot be implemented. Paragraph 228.1. End of section and after 228.4(e) - "and 228.9." Paragraph 228.13. Title should read — baseline or trend. This is to be consistent with rest of section. Paragraph 228.4(e). Last sentence should read — "Studies for the evaluation and potential selection of dumping sites should be conducted in accordance with appropriate requirements of 228,5 and 228.6(a)." this is to clarify the relationships of 228.4(e) and 228,5 and 228.6(a). jo7 ------- Paragraph 228.4(e)(1), Should read — "Baseline or trend" - - - - this is to be consistent with rest of section. Paragraph 228.4(e)(2). First line - delete "A joint," replace with - "An," this is because the work ' joint' suggests a combined Agency E1S rather than a combination of disposal sites within a geographical area. Paragraph 228.6(a)(9). Delete - "as described in 228,13," the use of 228.13, if the" "DE is going to do a trend assessment, etc., is implicit and deleting reference would not discourage use of the section but would simplify the use of sections 228.1, 228.1(e), 228,5 and 228.6 by eliminating excessive cross referencing of sections. Paragraph 228.9. Title should read "Disposal Site Monitoring Programs." Paragraph 228.9. 3rd line - delete the comma after "District Engineer." This clarifies the sentence. 2 ------- #73 Response to comments received from the U. S. Army Corps of Engineers, Washington, D, C. Many of the specific comments were discussed with Corps of Engineers staff and some of the specific suggestions were incor- porated into the redrafting of Sections 227. 6, 227, 13, and Subpart G. The Final EIS has also been changed to reflect the redrafting of the criteria. Thus, EPA does not feel it is useful or necessary to respond to the specific changes in wording suggested for the EIS and the criteria, since these suggestions have been superseded by staff discussion and agreement on wording. Some of the general comments on the DEIS do, however, require some response. The general comments suggest that more specific information on dredged material disposal, the costs of testing, and its impact on the environment should be provided. EPA agrees with this. However, it should be noted that dredged material is disposed of under permits issued by the Corps of Engineers, using EPA criteria. The specific information on dredged material disposal suggested for inclusion by the Corps of Engineers is information that would be available to the Corps of Engineers through their permit program, not to EPA. EPA would be happy to include such information if the Corps of Engineers would provide it. J O ------- DAVID D. SMITH AND ASSOCIATES ENVIRONMENTAL CONSULTANTS 23 September 1976 Mr. T.A, Wastler, Chief Marine Protection Branch Oil and Special Materials Control Division (WH—548) Environmental Protection Agency 2*01 M Street, S.W. Washington, D.C. 20^60 Dear Mr. Wastler; This is a letter of comment on: a) the proposed revision of Regulations and Criteria for Ocean Dumping as published by the Environmental Protection Agency in the 28 J vine 1976 issue of the Federal Register (Vol. 41, No. 125, pp. 26644-26667), and b) the Agency's Draft Environmental Impact Statement (DEIS) on the proposed revisions. This letter first addresses some of the proposed revisions and then comments on selected portions of the DEIS, These comments are based on personal experience over the past eight years with various types of ocean dumping activities, with particular emphasis on large dredging projects and dredge spoil disposal practices in California and along the Gulf and Atlantic coasts, and for the past four years in a specialized consulting practice dealing with regulatory permit application procedures for dredging and related water-oriented waste discharges. Concerning the Regulations and Criteria After a detailed review of the proposed revisions of the Regulations and Criteria, my specific comments and concerns are as follows: BOX 929- E, SAN DIEGO, CALIFORNIA 921 09 TELEPHONE (71 4) 273-3250 * H 541 ------- Mr, T.A. Vastier 23 September 1976 Page 2 1. Regarding dredged material disposal sites The disposal sites listed in the proposed regulations do not includes a) any sites for disposal of dredged material or any explanation of i) why these are omitted, ii) whether or not the previously designated sites for spoil disposal have been disestablished, and iii) what agency, if amy, would be responsible for designation of such disposal sites. Inasmuch as some 80 percent of the mate rial discharged in the ocean is dredged material, this is an important omission which should be corrected, 2. Regarding Regional Criteria There is no reference to,or mention of, disposal criteria previously issued by, and apparently still in effect in, some EPA Regions. Examples of these regional criteria include: a) the "Region IX Interim Dredge Spoil Disposal Criteria" currently in widespread use by various Federal and state agencies within the Region IX juris- dictional area, and b) "Sediment Evaluation for Open Water Disposal" dated 20 July 1976 and issued jointly by the San Francisco District, Corps of Engineers, and EPA Region IX. It is important that some reference to the existence and use of such criteria be made, and some explanation be given as to how regional criteria relate to the national criteria, both technically and administratively. 3. Regarding site designation procedures Paragraph 6 of Section 228.4 (p. 26661) provides that DAVID D. SMITH AND ASSOCIATES * 542 ------- Mr. T.A. Wastler 23 September 1976 Page 3 "The Administrator may...designate specific locations for temporary use for disposal of small amounts of materials under a special permit only without disposal site designation studies when such materials satisfy the Criteria# ... etc." It is important that this discretionary authority be extended to the Regional Administrator. Xn such cases, an abbreviated permit application processing procedure should also be appropriate. Further, examples of types of materials which might be considered for this category should be given in the Criteria, e.g. oil-free drill cuttings and drilling mud from OCS exploratory wells, etc. h. Regarding Evaluating Disposal Impact (Section 228.10) As worded in the proposed Regulations, Section 228.10 (c) (1) (ii) could be used as a basis for alleging that a Category I impact has occurred in virtually every disposal site where clean dredged material (as well as clean cellar dirt, demolition debris, drill cuttings, and drilling mud) has been discharged, because the initial benthic fauna at this site would have been destroyed or substantially modified owing to burial by the waste. It is highly unlikely that such is the intent of this paragraph. Therefore, wording should be added to specifically exclude the application of this "condition" in evaluating the effect of dredged material, cellar dirt, demolition debris, drill cuttings, or drilling mud discharged at a dump site. DAVID D. SMITH AND ASSOCIATES H 543 ------- Mr. T.A. Vastier 23 September 1976 Paige 4 5, Regarding Discrepancies in wording and intent between subsections addressing impact evaluation The following paragraphs address the need to clarify wording of the cited sections in order to convey intent effectively. Careful comparison of the wording of Sections 228.10(c) and 228.11 with the wording of that portion on the "Summary of Proposed Changes" which discusses these sections (namely, p. 26647, column 1, paragraphs 4, 5, 6 and 7) indicates that the meaning and implications of the sections cited are not clearly conveyed by the presently proposed wording of those sections. In fact, the supposedly introductory statements presented on page 2664? contain critically important interpretative information needed to understand the meaning of the sections cited. Therefore, to ensure understanding of the intent of Sections 228.10(c) and 228.11, the interpretative statements from p. 26647 should be incorporated in the body of these two sections. Specifically, Section 228.10(c) does not speak to EPA regarding Impact Category I as being "unreasonable degradation" of the marine environment (as implied on p. 26647), nor does it contain any wording which conveys the useful information presented in paragraph 5, column 1, p. 26647. Further, Section 228.11 deals with the administrative procedures for modification of disposal site use but does not (contrary to what paragraph 6, column 1, p. 26647 states) DAVID D. SMITH AND ASSOCIATES tt 544 ------- Mr. T.A. Vastier 23 September 1976 Page 5 make provisions by which "EPA will determine /ascertain/ that unreasonable degradation will occur at Impact Category I, but that impacts at the level of Impact Category II are acceptable." If spelling out the provisions for making the determination is the intent of 228.11, then additional wording is needed. At the very least, a clearer statement of the intent of 228.11 is needed. Note added in typing; paragraph 2 on p. 122 of the DEIS includes a sentence which ends "...but no damage to the biota outside the region of initial mixing is allowed under these criteria." Insofar as I can determine, the underlined words do not appear anywhere in the actual text of the proposed revisions. This apparent omission is important, because the words underlined may have a significant bearing on the eventual determination of whether the impact of dumping at a particular disposal site is Category I or Category II, In addition, the underlined wording seems to focus on water column effects rather than sea floor effects, which are probably more significant for many types of wastes, including dredged material.) 6. Regarding Validity of the impact evaluation concept The following paragraphs deal with what is probably the most basic technical issue in the proposed revision, namely, the highly questionable validity of the fundamental logic on which the Category I and II impact evaluation concept DAVID D. SMITH AND ASSOCIATES rt 545 ------- Mr. T.A. Vastier Page 6 23 September 1976 is based. The following statements from paragraphs kf 5, and "{ of page Z66kf appear to be the expression of this logic. Paragraph 4 "With this level of impact, EPA recognizes that there is some impact on the biota that may presage some form of significant long- range impact and regards this level of impact as being 'unreasonable degradation.'" Paragraph 5 "EPA vill determine that unreasonable degradation will occur at Impact Category I, but that impacts at the level of Impact Category II are acceptable." Paragraph 6 "The basic rationale for the impact classification system is that, some changes in the composition of water and sediments may be tolerated, but any significant sign of damage to any of the biota may be a forerunner of adverse changes affecting the entire ecosystem and steps should be taken to reduce waste loadings to levels at which no changes in the biota are detectable." As proposed, the Regulations provide no discussion of, nor evidence or documentation for, the validity of the basic rationale that any significant damage to any of the biota constitutes "unreasonable degradation" in the meaning of the law. In my view, the validity of this rationale is highly questionable, and requires extensive verification. Further, although the DEIS (Chapter III Alternatives to the Proposed Action) addresses "Alternative 3 - Change Level of Acceptable Impact" (see p. 122-133)» the discussion focuses on defining the five impact categories (A through E)t the impacts associated with each category, and the changes in criteria for different impact categories as a basis for DAVID D. SMITH AND ASSOCIATES H 54G ------- Mr, T.A, ¥astler Page 7 23 September 1976 regulation. This discussion does not address effectively why Impact Category D was selected rather than Category B or C. Brief, one sentence explanations of why Categories B (p. 131) and C (p. 132) were rejected are not adequate. Failure to include a thorough discussion and justification of why impact Category D was chosen is, in my judgment, a major omission which seriously weakens the DEIS, and which may expose the Environmental Protection Agency to allegations that the evaluation concept is arbitrary and capricious, and without sound technical basis. Concerning the DEIS 7. Regarding Impacts of the Proposed Criteria Probably the principal environmental cost of implementing the proposed Regulations and Criteria will be the impacts on other parts of the environment as a result of not dumping wastes into the ocean. In addition, this will probably also be one of the principal economic effects of the proposed Regulations and Criteria. For this reason, the roughly two page treatment of "Impacts on other parts of the Environment" (p. 1^6-148), and the one page discussion (p. 148-149) of "Economic Impacts" are not an adequate treatment of these key issues. The pages cited are little more than a narrative enumeration of the types of these impacts; there is no attempt to assess the magnitude of these impacts and/or their environ- mental or economic significance. DAVID D. SMITH AND ASSOCIATES W 547 ------- Mr. T.A. Vastier 23 September 1976 Page 8 In my judgment, the EIS is seriously deficient without a more effective treatment of these two key issues. The importance of these impacts is supported by recent statements by Dr. Gordon J.F. MacDonald, Chairman of the National Research Council's Commission on Natural Resources (see Foreword, p. vii and -viii in "Disposal in the Marine Environment," published in 1976). 8. Regarding major discrepancy in tone between DEIS and the Regulations The wording and structure of the Regulations and Criteria set a very negative "thou shalt not" tone with respect to ocean dumping. Examples of explicit statements of this type include: "...and there is no change in EPA1s intent to eliminate ocean dumping of unacceptable materials as rapidly as possible." (p. 26644) "The agency has found that the environmental assessments and required plan to eliminate or bring waste into compliance have been an effective tool into prodding ocean dumpers into more acceptable alternatives." (p. 26646) Perhaps this negative tone is intentional and, to some in EPA, desirable. Regardless of the reason, this tone contrasts sharply with statements in various sections of the DEIS which convey a much more reasonable, middle-of-the-road tone with respect to ocean dumping. Examples of these statements include: p. i "EPA believes that these revisions provide the strict control necessary to follow the intent of Congress in permitting ocean dumping which will not unreasonably degrade or endanger human p. ii health or the marine environment.« DAVID D. SMITH AND ASSOCIATES H548 ------- Mr. T.A. Vastier 23 September 1976 Page 9 p. vi "EPA believes that these revisions provide the strict control necessaxy to follow the intent of the Congress in permitting ocean dumping which will not unreasonably degrade or endanger human health or the marine environment." p. vii "The House Merchant Marine and Fisheries Committee stated that 'ocean dumping should be allowed as an alternative method of disposal though strictly controlled and only when it will not unreasonably degrade or endanger human health or the marine environment'. The Senate Commerce Committee concurred in this by stating 'that ocean dumping is acceptable, but only if it will not result in harmful effects upon human health, the marine environment, or the economic welfare of an area.* "Thus, the clearly stated intent of the Congress is to permit ocean dumping as an acceptable alternative means of waste disposal under strict regulation as long as there is not 'unreasonable degradation.•" P. 153/^ "In developing the proposed criteria and in establishing the level of impact which would be regarded as 'unreasonable degradation,' EPA has attempted to establish a regulatory framework which would permit use of the ocean as an acceptable alternative for waste disposal without creating permanent damage to any part of the ocean, other than the occupation of some space on the ocean bottom by inert material," Xn my judgment, it is extremely important that this discrepancy in tone be resolved and that specific language be incorporated in the Regulations indicating that "...the clearly stated intent of the Congress is to permit ocean dumping as an acceptable alternative means of waste disposal under strict regulation as long as there is not 'unreasonable degradation.'" DAVID D. SMITH AND ASSOCIATES ** 540 ------- Mr. T.A. Vastier 23 September 1976 Page 10 Including these statements in the DEIS, but not in the Regulations per se is not an effective means of conveying the intent of the Congress with respect to ocean dumping. X appreciate the opportunity to submit these comments on the proposed revisions and the Draft EXS. Davicl D. Smith, 1'h.D President DDS/par DAVID D. SMITH AND ASSOCIATES tt 550 ------- #74 Responses to comments by David D» Smith and Associates, San Diego, California. Concerning the Regulations and Criteria 1. Dredged material disposal sites are now included in the criteria, and Section 228, 4(e) has been revised to describe how these are to be designated. 2. Regional criteria, where they exist, must be consistent with and regarded as an amplification of national criteria. The statutory criteria enforced by EPA under the Ocean Dumping Act are those published in Parts 227 and 228. 3. EPA has made the voluntary commitment to publish EIS's on many disposal site designations. The commitment was made by the Administrator of EPA, and he retains the authority to determine when the EIS procedure under NEPA need not be followed. In addition, the designation of disposal sites is a procedure by which criteria are established by the International Ocean Dumping Convention and is is therefore a matter involving the international obligations of the U. S Regional Administrators are not in a position to make these types of determinations. 4. The language of this section has been changed to limit the consi- derations to toxicity rather than including the physical effects of dumping inert materials. 5. Sections 228. 10 and 228. 11 must be read together Section 228. 10 sets the criteria which define the two impact categories, and Section 228. 11 states the actions to be taken when certain levels of impact a 55i ------- #74 2 are found in accordance with the criteria of Section 228. 10. These sections provide clearly stated criteria and procedures to achieve the overall goal of preventing unreasonable degradation as defined in the EIS: they are enforceable as they stand and further interpre- tive language is not necessary. The statement in regard to "no damage to the biota outside the region of initial mixing" is related to the development of the criteria of Part 227 on the use of the LPC to determine acceptability of a waste for ocean dumping. Part 228 deals with long-range measures of impact in and around the disposal site as determined by environ- mental measurements at and near the site. These are two different approaches toward achieving the same goal. They are consistent, but the zone of initial mixing is not one of the factors measured directly to determine an impact category. 6. Both the Preamble and the EIS state explicitly that the Act leaves to EPA to determine a basis for what is "unreasonable degradation", and Chapter III of the EIS points out that the selection of the Impact Category D was a matter of administrative determination. This determination was clearly stated and the Pre- face to the DEIS pointed out this was a major factor in the specific limitations set in the criteria; public comment on the acceptability of this approach was specificially requested. There is no clear line of demarcation between any two of the five impact categories, VI 552 ------- #74 3 and it is not possible to establish fine technical lines of distinction based on actual probable impacts resulting from choosing one in- stead of another. Concerning the DEIS 7. EPA recognizes the importance of impacts on the other parts of the environment and adequate allowance is made in the criteria for seeking and implementing the most cost-effective disposal means. However, these effects must be determined on a case-by-case basis for each waste. All wastes not meeting the former criteria are presently being phased out and the costs of this cannot be reason- ably attributed to the new criteria. For wastes not yet proposed for dumping, there is no present means of determining the most cost-effective solution. Therefore, this EIS cannot be precise about the economic impacts of these criteria, since the informa- tion does not exist. 8. EPA does not believe there is a discrepancy in tone between the quotations given. In the first two instances reference is being made to dumpers having interim permits, while the remainder of the quotations deal with wastes which meet the criteria. EPA takes a very adverse position on the dumping of wastes which do not meet the criteria, and the quotations reflect that position. ------- DEPARTMENT OF TRANSPORTATION MAILING ADDRESS: UNITED STATES COAST GUARD u.s, coast guard (G-WEP-5/73) ¦»"" WWJ-^W ¦ WASHINGTON, O.C. 20590 pmone: 202-755-7938 • 5922/2.c 12 NOV 1976 Mr. T. A. Wastler Chief, Marine Protection Branch (WH-548) Oil and Special Materials Control Division Environmental Protection Agency 401 M Street, S.W, Washington, D. C. 20460 Dear Mr. Wastler: The Coast Guard has reviewed the final revision of EPA's Ocean Dumping Regulations and has the following comments: 220.3(e), line 7; The exclusion paragraph of 227.6 is (g) instead of (e). 222.9: It is requested that an additional paragraph (d) be added which reads: "(d) A copy of each permit issued will be sent to the appropriate District office of the U. S. Coast Guard." Section 104(g) of the Act requires that the issuing official furnish a copy of the permit to the U. S. Coast Guard. Section 222.3 of the regulations adequately addresses the distribution of the public notice of an appli- cation; however, in order to carry out its surveillance and enforcement responsibilities, the Coast Guard must have a copy of the complete permit as issued. 228.12: The listing of dump sites that appears following this section should be changed as indicated in enclosure (1). 229.3(a)(4): Recommend change to read: "... the dumper shall, no later than ten days prior to the proposed disposal date, notify the . . The purpose of this recommended change is to allow sufficient time for EPA or the Coast Guard to inspect the vessel to insure that it is clean and ready for dumping. 229.3(a)(8): Recommend that the emergency exemption clause be added making the paragraph read: "Except in emergency situations, as deter- mined by the U. S. Army Corps of Engineers and/or the U. S. Coast Guard, the Captain-of-the-Port . , The purpose of this change is to make this requirement consistent with the other provisions of the permit. * 055 ------- Subj: Comments on final revision of EPA's Ocean Dumping Regulations The Coast Guard has no further comments and appreciates the opportunity to review these regulations. Sincerely, _ F. P. SCHUB2RT Captain, U.S. Coast Guard Chief, Marine Environmental Protection Division By direction of the Commandant Encl; (1) List of dumping sites 1 H 55G 2 ------- WWOCHT LOCATION LAT, , LONG. rPROPOSED-tOCATION~tAJ 19" 66 38c c 74 cn CH «76° 19« '26 56J- \ 38° 38° 38° 38° 36' 00"N, 74° 29* 26"N, 74° 45"N, 15"N, 34"N, ^7' 34* 50"Nt ,80c 30"N 80° 40"N, 80° .* \ 14 "N, 940 31* 24"N, 94° 25* /8"N, ^11"N, 28"N, 48"N, 30"N, Q0"N, 93° 24 lpl'N, 93° 30"N, 93° xsrw 12' 30'\l 54» 00"« Hill mill' L00AN 0 TIME 0CLA¥ LINES OF PROPOSED SITE BOUNDARIES 9930-Y; 52150 to 52200 , 9930-Z: 70380 to 70440 9930-Y)\52200 to 52250 9930-Z j >70460 /to 70520 9930-Ws 14^75 to 14300 9930-Z; 71050 to 71075 EPA REGION II III IV .VI VI VI PRIMARY USE CHEMICAL WASTES WASTE ACID SLUDGE INDUSTRIAL WASTES INDUSTRIAL WASTES INDUSTRIAL WASTES OCEAN INCINERATION ¦** LQfjm-c coardltmfcoo- for proppfled-gjt-tHiB-ln Gulf of Mexico to be developed upon implementation of the Cuif--Coast- LORAN C chain. ------- LOCATION LAT., LONG. A3° 33'N, 69° 55'W 1 N. Ml. RADIUS • ' . "a/ it *$n N *2° 26*TT, 70° 35 1W 1 N. Ml. RADIUS 40° 22' 30"N Co 40° 25' 00"N _ 73 41' 30"W to 73 45' 00"N X ci c.n CD 40 16' 00"N Co 40° 20* 00"N 73° 36' 00"W to 73 40' 00"W 40° 23* 00"N, 73° 49' 00"W 0.6 N, Ml. RADIUS /iQ-^-X1L_ClP"H. 73° 46-UflflSu, H. Hi-;—ftAOIUli 1 LAT., LOHQ, 9"W 35"W 58"W 57"W 35"W 2/N, 73" 37' 18"W r'N, 73- 33' 5fl"W 6"N, 7 3A37' 57"W 9"N, 73 \l' 16"W 72 IB* 00"W 71° 46 \ 30"W 38 /0' 38"N 38/561 32"N 23' 25"N AO—22' ¦ S9'-Nt 7.3- 50' 3U3JJW-. 40° tO" 00"N, 73° 42' 00"W 0.5 N, rfl. RADIUS* 38° 40' 00"N to 39° 00' 00"N 72° 00' 00"W to 72° 30' 00*'W LOWAN-C TIME DELAY LINES OF PROPOSED SITE BOUNDARIES 9W0-X: 36720 to 36/40 9930-Z: 69415 to 69425 9930 9930 37490 Co'37510 69620 to 69630 9930-Y; 50970 to 51000 9930—Z: 69820 to 69840 9930-Y; 5097a. to 51010 9930-Z; /&9860\to 69885 EPA REGION PRIMARY USE INDUSTRIAL WASTES II II INDUSTRIAL WASTES SLUDGE SITE WASTE ACID 9930-Y: 51050 to\51300 9930-Z;*70440 to 10560 9,930-Y: 51030 to 5104Q ^930-Z; 69815 to 6982 \ II II CHEMICAL WASTES CELLAR DIRT II WRECKS ------- #75 Response to comments received from the TJ, S. Coast Guard. The changes suggested in these comments were made. ------- United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 PEP ER-76/362 & ER-76/817 DEC 11976 Dear Mr. Rhett: The Department of the Interior has reviewed the draft of the final regulations for the ocean dumping program furnished to us on November 17, 1976. On October 19, 1976, we forwarded comments on the draft environmental statement covering these regulations. This same letter also enlarged our comments of earlier this year on the draft regulations. We strongly urge that our prior comments on these regulations be reconsidered and addressed in the final version of the regulations, which are soon to be published. The November 17 document still does not adequately reflect the major concerns of this Department. These concerns include the following: 1. Monitoring should be mandatory and on a regular basis, 2. Reliance should not be placed so heavily on dilution at the dump site to reduce toxic concentrations, 3. The potential toxic effect of organic compounds suggests that they should receive emphasis equal to that given to organohalogens, and 4. The regulations should have a greater flexibility to cope with unforseen developments. Thank you for this additional opportunity to review the regulations. Sincerely yours Caputy Ass1 stHm Secretary of the Interior Mr. John T. Rhett ,si0^UT'°, for Water Program Operations \ Environmental Protection Agency SWashington, D.C. 20*4 6 0 *\ G61 ------- #76 Response to comments received from the U. S. Department of the Interior, December 1, 1976. 1. All monitoring is conducted on a regular basis, but because of limited resources available, EPA must retain the discretion to decide where and when monitoring should be done. 2. Dilution during dumping is only one of many factors consi- dered in setting conditions for dumping to avoid unreasonable degradation. 3. Organohalogens, which are a class of organic compounds, are prohibited because of their potential for bioaccumulation as well as toxicity. The toxic effects of all the organic compounds pre- sent in a waste are measured by a bioassay and limiting permissi- ble concentrations are set accordingly. 4. The regulations have been developed to allow the flexibility necessary to consider ocean dumping on a case-by-case basis, and yet still provide the strict regulation as required in the domestic law and international agreements to protect the marine environment. ------- State of Florida S*ptrtttt*tti of Abminifitration Division of State Planning Reubln O'D. A«kew RG Whittle. Jr. PLANNING DIRECIOR 660 Apalachee Parkway - IBM Building Tallahassee 3230* (904) 488-1115 Lt. Gov. J. H. "Jim" William* tICaiTMV Of AOMjMtSTRATIOM November 5, 1976 United States Environmental Protection Agency Oil and Special Materials Control Division (OSMCD) 401 M Street, Southwest (WH-548) Washington, D. C, 20460 ATTENTION: DIRECTOR Dear Sir: Functioning as the state planning and development clearinghouse contemplated in U. S. Office of Management and Budget Circular A-95, we have reviewed the following draft environmental impact statement: Proposed Revisions to Ocean Dumping Criteria, SAI #77-0386. During our review, we referred the environmental impact statement to the following agencies, which we identified as interested: the Department of Environmental Regulation, the Department of Legal Affairs, the Department of Natural Resources, the Department of State and the Game and Fresh Water Fish Commission. Agencies were requested to review the statement and conment on possible effects that actions contemplated could have on matters of their concern. Letters of comment on the statement are enclosed from the Department of Legal Affairs, the Depart- ment of Natural Resources and the Game and Fresh Water Fish Commission. If additional comments are received or developed by this agency, we shall forward them immediately. In accordance with the Council on Environmental Quality guidelines concerning statement on proposed federal actions affecting the environ- ment, as required by the National Environmental Policy Act of 1969, and U. S. Office of Management and Budget Circular A-95, this letter, with attachments, should be appended to the final environmental impact statement on this project. Comments regarding this statement and project contained herein or attached hereto should be addressed in the statement. * 563 ------- United States Environmental Protection Agency November 5, 1976 Page Two We request that you forward us copies of the final environmental impact statement prepared on this project. RGWjr:Kp Enclosures cc: Mr. Robert Williams Mr. J. Landers Mr. Thomas A. Harris Mr. Harmon Shields Mr. Loring Lovel1 Mr. William Partington Mr. H. E. Wallace Mr. Walter 0. Kolb Sincerely. R. G. Whittle, Jr. Director A ------- State of Flobida Department or Legal Affairs Office of The Attorney Gexebal The Capitol TaULARASSEE, FtOHIDA 32304 ROBERT L. SHEVIN Attorney General November 4, 1976 Environmental Protection Agency 401 M Street, S. W. (WH-348) Washington, D. C. 20460 Attention: Director, Oil and Special Materials Control Division Dear Sir: This letter constitutes the comments of the Florida Department of Legal Affairs on the proposed Ocean Dumping Regulations and draft environmental impact statement prepared by the United States Environmental Protection Agency. The Department of Legal Affairs shares the view with the Florida Department of Environmental Regulation that ocean dumping is a matter of great importance having potentially substantial effect on the health and welfare of the citizens of Florida as well as those of the nation and world as a whole. Thus, we offer these comments in the spirit of cooperating with the Environmental Protection Agency in creating regulations which will insure that ocean dumping is consistently permitted only when no undue damage to human health or the marine environment will occur. The proposed regulations are superior to the predecessors in several important respects. Most notable of the improvements are the greater specificity of criteria for the evaluation of permits and the in- clusion of criteria for selecting and managing of disposal sites. There are, however, shortcomings in need of further refinement. Those aspects of the regulations are discussed in the remaining paragraphs. The notice and hearing provisions of Part 222 of the proposed rules are of particular concern to the Department of Legal Affairs. If the State of Florida, or any state, is to have an effective voice in the proceedings to evaluate and issue permits for ocean dumping • H 565 Vtit is IHiI ' AVi Vt h.l I'ji't'. ------- Environmental Protection Agency Page 2 potentially affecting its coast, there must be adequate provisions for notice of each application and its contents and adequate op- portunity for the state to present its views and differences, if any, to the Environmental Protection Agency. In this regard, the notice provisions of Section 222.3 leave much to be desired. In the first place, while the provision in Section 222.3(d) for notice to all states within 500 miles of a proposed dumping site is an improvement, it is still not notice enough for dumpings oc- curring within the Gulf of Mexico. The Gulf is largely an enclosed body of water. Dumping permitted within its boundaries would potentially affect any of the five states bordering it. Hence, a special provision for notice to each of those states is necessary if their governments are to have an effective role in protecting the interests of their citizens. Secondly, the effect of Section 222.3 (i) is that a permit to dump can be issued with no more notice given to states or other persons than publication in one daily newspaper in the state closest in proximity to the proposed dumping site and in one newspaper in the city in which is located the administrator issuing the license. Thus, Section 222.3(i) should be deleted from the rules, and the provisions for notice to specific persons and states contained in Sections 222.3(c) and (d) should become mandatory. Section 222. 3(j) allows a consulted agency, including a state agency, only 30 days from the date copies of any public notice are dispatched to such agency to submit to the Environmental Protection Agency its objections to the issuance of the permits identified in the public notice. This time period is hardly adequate for the state to give serious consideration to the application, and then to reduce its comments to writing and submit them to the adminis- trator. Thus, the time period should be expanded. A speedier submission of the states' objections and comments would be facilitated by including in the notice to the states a copy of the application and supporting material for which notice is being given. Therefore, we recommend that either Section 222.3(a) or Section 222.3(d) be amended so that notice sent to states will include a copy of the application and supporting material. Just as the 30-day period for submitting comments and objections is too short, so is the 30-day period for requesting a public hearing as provided in Section 222.4(a). In the first place, this 30 days begins to run as of the date publication of notice is given by way of ------- Environmental Protection Agency Page 3 newspaper, not from the date publication of notice is given by mail to states or to specific persons. In the second place, the party requesting a public hearing must submit a written request stating in particularity its objections to the issuance or denial of the permit, and stating other material in such detail as to sway the administrator to exercise his discretion in favor of granting the hearing.. The net result is that the party requesting such a hearing has less than 30 days in which to submit to the administrator a lengthy and complicated document sufficient to convince the adminis- trator of its merits. Under these conditions, the time period allowed by the rule is clearly insufficient. The hearing provisions of Part 222 are generally lacking in other respects. Sections 222.4 - 222.12 establish a three-level internal hearing process with narrow time frames and detailed filing require- ments. In effect, the rules create a labyrinth of procedural re- quirements which an affected state must follow to the letter each step of the way. Moreover, broad and vaguely defined discretion is granted to the administrator or his designee to grant or deny hearings at each step. Particularly unfair is the provision of Section 222.10(a), that re- quests for an adjudicatory hearing nrast be filed with the administrator within ten days following the dispatch of notice of the issuance or denial of any permit. In light of the detailed and complicated nature of the written request for adjudicatory hearing which must be filed, ten days is entirely inadequate. Section 222.12(f) purports to make an appeal to the administrator a prerequisite to judicial review under the Administrative Procedure Act. Pursuant to the preceding sections, however, a party cannot get to the stage of being eligible to appeal to the administrator unless he,has successfully been granted his request for and has participated in two prior evidentiary hearings. Thus, the administrator can seemingly exercise his discretion at a prior stage of the proceeding to deny a party an evidentiary hearing, and thus preclude that party's right to judicial review. We respectfully suggest that not only is the provision of Section 222.12(f) unfair, but that it is patently illegal. An administrative officer does not have within his dis- cretion the power to grant or deny a party the right of judicial review. That power lies only in the courts. The provisions in the regulations for notice and hearing are not designed to give affected states a reasonable opportunity to present their objections to permit applications and, thus, to protect the interest of their citizens. The brief time periods for submitting H 5G7 ------- Environmental Protection Agency Page 4 comments and requests for hearings at various stages of the proceedings on a permit application appear to contemplate some urgency in pro- cessing applications. However, there is no emergency in the case of a normal application which calls for such a slighting of states' and citizens' input and interest. More than adequate provisions are made for the emergency case, and curtailment of the states' right to adequate hearing should be restricted to those cases alone. With respect, to these emergency permits, we find further shortcoming. The definition of "emergency," given in Section 220.3(c) is overbroad. In that an amergency "is not limited in its application to circum- stances requiring immediate action," an emergency permit can be issued for something other than an emergency need. Moreover, these permits can be issued without any notice being given prior to the issuance of the permit. See Section 222.3(b)(3). The instances in which permits can be granted without prior notice should be restricted to those situations involving only true emergencies. Another definition which is lacking altogether is that of "trace amounts." Section 227.6(a) prohibits the dumping of certain materials into the ocean unless they are present only in "trace amounts." The omission of the definition of "trace amounts" creates considerable vagueness as to what amounts of those prohibited substances can be dumped under permits and raises a question as to whether the Environmental Protection Agency will require a description of their presence or effects in the application when they are in the undefined "trace amounts" realm. Thu£>, there needs to be included in the' regulation either a definition of "trace amounts" or a requirement that an application for dumping permit describe with specificity the amount and probable effect of materials present in trace amounts. Finally, the provision of Section 220.3(a) presents an enigma which should be either clarified or omitted. This section authorizes the administrator to issue a general permit without the normal application when he determines "that issuance of a general permit is necessary or appropriate." No criteria are given for making the finding of necessity or appropriateness. Yet, it is apparent that the adminis- trator may use the authority granted in this section to issue a general permit without any notice to states or other persons or a"ny opportunity for those parties to offer input or suggestions or request and obtain a hearing on the issuance of the permit. This creates a loophole of undefined dimension which should be closed before these rules become final. We appreciate the opportunity to comment upon the proposed regulations for ocean dumping. We trust that these comments will be given H 563 ------- Environment Protection Agency Page 5 serious consideration, and that better protection of our ocean and shores will result from incorporating the revisions suggested. Sincerely, Attorney General RLS/Hg „ 569 H ------- EG Whittle Jir, WOT PWWWNG WRSCIOS TOj State of Florida Sejrartmetti of Aimimatrattatt Division of State Planning 660 Apalachee Parkway - IBM Building Tallahassee 3230# (904) 488-2371 Mr. H. E. Wallace Game & Fresh Water Fish Commission Bryant Building Tallahassee, Fla. 32304 FROM: Bureau of Intergovernmental Relations SUBJECT.- SAI j_ Reubln O'D. Aokaw COVCKHO* L#t. Gov. J. H. "Jim- William# SKOICf*1* 0* ABMtNttfRATIQM DATEs SEP 2 9 tQ7fi OCT 1 3 197Q DUE DATE* 1 ° lvj,u Please review and comment to us on the above draft Environmental Impact Statement, copy attached. In reviewing the statement, you should consider possible effects that actions contemplated could have on matters of concern to your agency. If you feel that a conference is needed for discussion of the project or resolution o£ conflicts, or if you have questions concerning the statement, please call Mr. Walt Kolb at (904) 488-2401. Please check the appropriate box below, attach any comments on your agency's stationery and return to this office or telephone "no adverse comments™ by the above due date. On that date, we intend to consider all review comments received and develop a state position on the project. In both telephone conversation and written correspondence, please refer to the above SAI number. Sincerely sring Lovell, Chief Bureau of Intergovernmental Relations Enclosure A*****************'*************************************************************** TO: Bureau of Intergovernmental Relations FROM: Game and Fresh Water Pish Commission SUBJECT: DEIS Review and Comments i 1 Ixy [ So Comments Signature Title; Assistant Bureau Chief ~Comments Attached Dafce:—9/30/76 Environmental Protection Bureau *570 ------- RC. Whittle, Jr ,SIAlt PLANNING D«8CT0R TO: State of Florida £ ? nf Abminiistration division of State Planning 660 Apalachee Parkway • JBM Building ffi€: SEP 2 01976 executive director DEPTj&MAf ua/fc. R4&WWES S0vl«»o« FROM: SUBJECT; Tallahassee 32304 (904) 488-2371 Mr. Harmon Shields Department of Natural Resources 202 Blount Street, Crown Building Tallahassee, Florida 32304 >v.:» \ Bureau of Intergovernmental Relations v 7 7- 03 8 ey/ \ SAI: y ^ Lt. Gov. J. K. •Jim* William® IKieTMT SEP 17 1976 DATE: DUE DATE: PQT 1 157 ft A • -.3 The attached "Advance Notification" of intent to apply for federal assistance is being referred to your agency for review and comments. Your review and comments should address themselves to the extent to which the project is consistent with or contributes to the fulfillment of your agency's plans or the achievement of your projects, programs and objectives. If further information ic required, you arc urged to telephone the contact person named on the notification form. If a conference seems necessary, or if you wish to review the entire application, contact this office by telephone as soon as possible. If you have no adverse comments, you may wish to report such by telephone. Please check the appropriate box, attach any comments on your agency's stationery, and return to this office or telephone by the above due date. If we do not receive a response by the due date, we will assume your agency has no adverse comments. In both telephone conversation and written correspondence, please refer to the SAI number. Sincerely Loring Lovell, Chief Bureau of Intergovernmental Relations Enclosure TO: Bureau of Intergovernmental Relations „ w r\ f> o /¦> FROM: Department of Natural Resources < # ~ vo o \j SUBJECT: Project Review and Comments, SAI: 0-7 •: ~ No Comments . * - ra Comments Attached Signature: Date: October 1, 1976 Title: Assistant to the Executive Director H 571 ------- DEPARTMENT OF NATURAL RESOURCES State of Florida INTEROFFICE MEMORANDUM 1 October 1976 1-5-6 TO: Jim Smith FROM: Charles R. Futch cPr SUBJECT: Sfll 77-0386 Ocean dumping of dredged materials should not be permitted when they come from inlets and near-shore channels and are compatible for beach nourishment. Some environmental damage surely occurs when ocean dumping of dredged materials is involved, although the DEIS does not give sufficient consideration to dumping of relatively clear sand. Placement of such dredged materials directly on adjacent beaches would reduce the need for dredging similar materials from offshore and pumping them to the beach. Offshore dredging does cause an environmental impact according to all reports. Ocean dumping of noxious chemicals, etc., is a medieval approach to solution of a 20th Century problem. It has been demonstrated that currents in the Gulf of Mexico could entrain and transport such effluvia to Florida's Gulf coast, and the entire Atlantic seaboard. Accordingly, permitting such activity is an unacceptable alternative to land-based detoxification, or degradation of such products. CRF:br H 572 ------- #77 Response to comments received from various agencies of the State of Florida and transmitted by the Florida Department of Administration, November 5, 1976, Department of Legal Affairs These comments deal with the same concerns expressed in former comments by the State of Florida Department of Environ- mental Regulation. The responses to those comments answer the questions raised here. Department of Natural Resources The use of dredged material for beach nourishment is common where the material is of satisfactory character. Beach replenish- ment is not regulated under the Ocean Dumping Act. The stated goal of the ocean dumping permit program is to terminate the dumping of unacceptable materials as rapidly as possible. Department of Environmental Regulations Several comments are made concerning the dredged material criteria. These criteria have been redrafted in response to these and other comments made by participants at the technical work- shop. Dredged material is now subject to the same bioassay requirements as other materials. v\ 573 ------- SHELL OIL COMPANY ONE SHEU PLAZA P.O. BOX 2463 HOUSTON, TEXAS 77001 November 3, 1976 Environmental Protection Agency 401 M Street, SW Washington, D.C. 20460 Attention Mr. T. A. Wastler, Chief Marine Protection Branch Oil 8 Special Materials Control Division (WH-548) Gentlemen; We appreciate having had the opportunity to participate in the EPA Technical Workshop on Ocean Dumping Criteria held in Reston, Virginia on October 19-20, 1976. Although time constraints precluded a comprehensive review of all the pertinent issues, we found the discussions quite valuable in resolving certain specific points. As the development of ocean dumping criteria continues we expect that the Agency will provide further opportunity to review the criteria before their final publication. It was noteworthy that consensus evolved from a discussion of divergent views. We support the conclusion that explicit definition of trace contaminants would not be required to protect the marine ecosystem, which is the intent of pertinent laws and conventions. Furthermore, we agree that bioassays provide a more meaningful regulatory device than bulk analysis for specific contaminants. While the presence of specific materials of concern can be identified by chemical analysis, controls should reflect the origin of the waste, its biological availability and the method of disposal. By way of illustrating these points, oil well core cuttings containing non-biologically available natural minerals should be suitable for ocean disposal quite irrespective of the concentrations of insoluble, non-biologically available heavy metals. In the case of at-sea incineration of organic chloride wastes, controls should recognize that the wastes are essentially destroyed (rendered harmless) by oxidation and that the small quantities of organic chlorides reaching the ocean are insignificant. Therefore, limitations on the concentra- tions of organic chlorides transported for at-sea incineration are not pertinent. Although not an agenda item for the technical conference, we should like to emphasize a view discussed in our earlier letter (9/22/76) commenting on ocean dumping criteria. Waste disposal regulations must provide a balanced protection of various segments of the environment and conserve ^sources including energy and capital. However, we note that there is a # 575 ------- Page 2 presumption in tha proposed regulations that ocean disposal is undesirable if alternative methods of waste disposal are available. This position is reflected in the proposal to terminate most interim permits after April 23, 1978 ( 5220.3(d)) and in the language of sections 227.2 and 227.16 which would have the effect of phasing out ocean disposal of marine compatible wastes. In our view the existence of a land-based disposal alternative should not preclude ocean disposal. The selection of a disposal option should rather be based on a balanced evaluation. Such a balanced comparison cannot be obtained if there is prior assumption that ocean disposal is more detrimental to the environment than other disposal methods. Again we urge that these regulations be modified to reflect a policy of balance among the appropriate concerns of environment, energy, economic and natural resources, and public health and welfare. Very truly yours, R. E. Van Ingen Manager - Manufacturing Environmental Conservation t*$ Jib ------- #78 Response to comments received from the Shell Oil Company, November 3, 1976. These comments support the use of bioassays as the primary test procedure and refer to earlier comments by the Shell Oil Company, to which have been responded to previously. Changes have been made in the sections dealing with incinera- tion at sea to emphasize that it is the stack emission products that are of primary concern for regulatory purposes. See also response to comment #49. tf 577 ------- EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON WAGE AND PRICE STABILITY 724 JACKSON PLACE, N.W. WASHINGTON, P.C. 20506 December 1, 1976 Mr. Alvin Aim Assistant Administrator for Planning and Management Environmental Protection Agency Washington, D. C. 20460 Dear A1: Enclosed is a copy of Robert Greene's memorandum on proposed ocean dumping regulations and criteria which was submitted earlier in the interagency review process. We note that these conments still apply since EPA has not discussed the relative benefits and costs of alternative disposal methods. Numerous water effluent guidelines issued by EPA will eventually require disposal of waste sludge. That sludge must be put somewhere - if not in the ocean, then as landfill. The Council feels that it would be worthwhile for EPA to discuss this question within a benefit-cost framework. Sincerely yours Jamas^C. Miller III Assistant Director Government Operations and Research tt 579 ------- Hay 3, 1976 MEHDRAuDUH TO; J/VIES C. I'.ILLER III, ASSISTANT DIRECTOR CQVEPJMNT OPERATIONS AND RESEARCH FROM : ROBERT L. GREENE, ECONOMIST • rover;;'xt,7 operations a;;d research SUB.1ECT : EPA PP.e?OSr.D OCEAN DUKPINS REGULATIONS AND CRITERIA The Environment =31 Protection Agency (EPA) has distributed for Interagency review Its proposed regulations and criteria for ocean dumping of wo'-tos. Ths counont deadline is Hay 3, 1576. According to an EPA draft action ne^orsndum, the immediate impacts are not* 1li.ely to be r-ijor. It 1s further concluded, however, that "...the lon^-range approach of stopping ocean dumping will probably have considerable, but unknown, consequences," The draft preamble states that none of EPA's 'major" action criteria is reached and .there- fore an inflationary ir.psct statement has not been prepared." tiAJ02 ELEHEiiTS OF THE PROPOSAL 1. The purpose for the proposed dumping regulations and criteria for the evaluation of dumping permit applications 1s to adjust the present regulations ar.d criteria for increasing criticism fron private oroups and Congress that present policy does not conform to the provisions of the Ocean Dumping Act or the International Ocean Dumping Convention. 2. According t? EPA, "the proposed revisions respond to the specific criticisms leveled at the agency regarding the present regulations and criteria, and state more explicitly the consid- erations to t»e used in evaluating permit applications on a case- by-case basis. The revisions strengthen our present regulatory posture by placing a deadline of April 23, 1973, for the issuance of interim ptrmits, except for sewage treatment works, and require the preparation of Environmental Impact Statements as a basis for the designation of ocean dumping sites." tf 580 ------- - 2 - 3, The regulations set forth the criteria that must be met before a dumping permit will be Issued. According to the proposed criteria, a permit applicant must compare the relative environ- mental Impacts and costs of ocean dumping of wastes with other alternatives such as landfill, well injection, Incineration, and/or chemical, biological or physical treatment. If one.of these alternatives Is demonstrated to be more viable than ocean dumping, the permit can be denied, although all other criteria are satisfied. COM-tEHTS The present approach of EPA 1n Implementing the Ocean Dumping Act requires the phasing out of ocean dumping of toxic or otherwise damaging pollutants as rapidly as possible. The proposed revisions do not reflect a change An this posture. The proposed regulations and criteria will not"affect current dumpers who are for the most part, 1n the process of phasing out their dumping operations. However, the proposed revisions should convince potential permit applicants to look closer at alternatives before applying for an - ocean dumping permit. EPA's conclusion that an inflation impact analysis is not required 1s based on an analysis of the imnediate Incremental impact of the proposed regulations and criteria being added to present regulations. According to an EPA internal memorandum, the only impacted area will be the New York Metropolitan area where the sludge dumping site does not meet the proposed criteria for site selection. Consequently, these dumpers will have to use an alternative site which will involve no additional capital costs and an increase 1n average annual hauling costs of 55.0 million. EPA projects no additional impacts of the proposal on other dumpers. This conclusion 1s based on three EPA observations. One, all present dumpers who cannot meet the existing criteria presently are on phase out schedules to stop ocean dumping by 1931. Although the proposed action roves the deadline up to 1978, those dumpers who show good faith in phasing out their operations by 1973 can receive an extension to 1981. Two, the revisions to the criteria will not affect any other dumpers. Three, under the proposed revisions, current dumping practices of all dumpers, except in the New York Metropolitan area, in the interim period of 1976-1981, would not be changed, and their costs would remain the same. If EPA estimates are correct, these proposed revisions, In terms of immediate impacts, would be a minor action relative to the regu- lations already 1n place. However, the most significant Impacts will fall on potential ocean dumpers that now might have to use an alternative disposal metliod. EPA iafcnowledges this Impact but contends that the effects cannot be quantified. Furthermore EPA does not 581 ------- - 3 - provide any qualitative discussion of those effects. As the revisions are proposed, a potential ocean dumper would have to demonstrate that ocean dumping 1s the only feasible means of waste disposable available. This change could prove to be significant 1n view of the numerous water effluent guidelines being Issued by EPA that will eventually require the disposal of waste sludge. If firms were otherwise uncon- strained, they would be expected to dispose of wastes in the least- cost nanner. These proposed revisions will make 1t more difficult to occ-an dump and force sosa firms to more costly alternatives, e.g., landfill., thereby raising the costs and eventually impacting consumers. Moreover, more acreage ray have to bo conmitted to landfill. Although the nu-ber of applications and subsequent costs.may be difficult to estimate, EPA roiqht discuss, at least aualitatively what the relative benefits and costs night be of alternative* disposal methods. For example, what social benefits will be sacrificed by using more acreage for landfill relative to the gains 1n benefits from having a cleaner ocean? What will be the relative costs of the various disposal alter- natives-outlined earlier? These types of questions would seem to be worthy of some consideration if the public 1s to be made aware of the Implications of the proposed standards before they are ultimately promulgated. It appears that CUPS could sign off on EFA's certification that the actions arc "not t*.?.jorBcinj a "minor" action, EPA is not required to do any further economic impact analysis. However it might be worth requesting EPA to provide some qualitative discussion of the longer run impacts that they contend night result. cc: Official File Chron GOR Subject File GOR Reading File Feibusch Hopkins Greene CWPS:GOR:P.GREENE:tas 5-3-76 582 ------- #79 Response to comments from the Council on Wage and Price Stability, Washington, D, C. The evaluation of the costs and relative impacts of alterna- tives to ocean dumping must be done on a case-by-case basis for each waste. The criteria require such an evaluation in each case, but it is not possible to make a meaningful general analysis because of the many variables involved. H 583 ------- STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION Mr. A1 Wastier Chief, Marine Protection Branch WH 448, Waterside Mall 401 M Street, SW Washington, D.C. 20460 Dear Mr. Wastler: Thank you for inviting a representative from the department to attend the EPA Technical Workshop on Ocean Dumping Criteria which was held on October 19 and 20, 1976, in Reston, Virginia. The department's notification of this meeting allowed only one working day to make arrangements. . More advance notification would be appreciated in the future. It is this department's position that Section 227.13, Dredged Materials is not sufficiently specific to provide the degree of protection of marine resources required by the act. In general, the bioassay tests to be performed are not adequately described, the criteria for failing such a test are not described and the criteria for determining when testing of dredged material is necessary are vague. The attached comments are based on the results of the Technical Workshop and are offered in addition to the comments contained in my letter of September 28, 1976. Thank you for this opportunity to comment. 2562 EXECUTIVE CENTER CIRCLE, EAST MONTGOMERY BUILDING TALLAHASSEE, FLORIDA 32301 REUBIN O O. ASKEW GOVERNOR JOSEPH W. LANDERS, JR. SECRETARY November 4, 1976 Water-Ocean Dumping-Legal-40 CFR 220- 229-Proposed Rules-Comments to EPA Sincerely, uoseph W. Landers, Jr Secretary JWL/ppm Attachment Printed on 100% Recycled Paper rt 585 ------- Mr. A1 Wastier Page Two November 4, 1976 cc: Mr. John R. Quarles Mr. Jack Ravan ------- Attachment - Comments November 4, 1976 Page One Number 1 227.13 (a) The explanatory material which begins with, "Sediments normally contain ..." and continues to the end of this paragraph appears to add little to the requlation and might even result in confusion. For example, "loosely bound" has no generally accepted scientific meaning and the meaning of potential bioavailable fraction is ambiguous. The references to "state of the art" may appear to exaggerate the difficulty of regulating the ocean dumping.of dredged materials. It is recommended that this explanatory material be deleted. Number 2 227.13 (b) It is recommended that only small projects be excluded from the evaluative procedures. For larger projects, the evaluation cost is an insignificant fraction of the total cost. An appropriate figure is 50,000 cubic yards per year. If a project is less than 50,000 cubic yards, it is recommended that the material meet each of the following criteria in order to be excluded from further testing: (1) Less than 25% of the material is to pass through a lmm screen? (This would replace the term "particle sizes larger than silt in (b) (1). (2) The benthic biota at the dredging site has a diversity which is statistically equivalent to similar sediments in similar unpolluted areas. (3) Add past and present sources of pollution to (b)(3)(i). Add ... is substantially the same physically and biologically as the substrate ... to (b)(3)(i). Paragraph (b) (3) encompasses (b)(2) which can be deleted. Number 3 227.13 (c) The elutriate test is very limited in the kind of information St can provide. Obviously, the elutriate test provides no information concerning the biological capability of substances not released in this test. If the filtrate from the elutriate test does not meet water quality standards, the material is unacceptable, but the converse is certainly not true. The elutriate test should be performed with water which approximates that of the dump site in ionic strength and ionic composition. The elutriate filtrate should be screened for chlorinated hydrocarbons. rt 587 ------- Attachment - Comments November 4, 1976 Page Two The elutriate test should be considered an inexpensive ccreening test for determining that a sediment is not acceptable. A material passing an elutriate test should then be further tested by the bioassay procedures discussed at the technical workshop of October 19, 197S. It is recommended that both water column and benthic bioassays be conducted and that toxic, chronic and behavioral effects be examined on appropriate, sensitive organisms. The criteria for passing thesa tests should be stated in the rules. According to the October 19, 1976 workshop participants, EPA could presently provide interim guidance on these bioassay procedures with a final guidance manual to be provided by the Joint Bioassay Committee of EPA and CPE by July 1, 1977. This procedure is recommended to avoid further delays. rt sea ------- #80 Response to comments received from the State of Florida, Department of Environmental Regulation, November 4, 1976, Section 227. 13 on Dredged Material criteria has been revised to reflect the agreements reached at the technical workshop. These comments have been considered in redrafting this section. 1. The explanatory material has been largely deleted. 2. The screening procedures are sufficiently reliable to be applied to any size project. Further evaluative procedures should be applied as needed, not as an arbitrary requirement based on the project size. 3. The elutriate test is only one of the procedures used in testing dredged material. The redrafting of Section 227. 13 incorporates some of the recommendations made here. vt 589 ------- EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUALITY 722 JACKSON PLACE. N. W WASHINGTON, D. C. 20006 September 27, 19*76 Dear Russ; As you recall, we met last December to discuss the application of the National Environmental Policy Act (NEPA) to a number of Environmental Protection Agency programs. One of these was the ocean dumping program administered under the Marine Protection, Research, and Sanctuaries Act (MPRSA). Since that time, EPA has proposed revised ocean dumping criteria (40 FR 26644) accompanied by a draft environmental impact statement (DEIS) dated July 16, 1976. EIS's have also been issued on two dumping site designations. The purpose of this letter is to recommend, in light of these recent actions, further steps necessary to insure that the ocean dumping program is developed and managed in a manner consistent with the goals and policies of In EPA. The Council's interest in ocean dumping dates from its earliest days under your leadership. The 1970 CEQ Report to the President, "Ocean Dumping: A National Policy" was a turning point. Its recommendations for a Federal regulatory program designed to eventually phase out ocean dumping fostered enactment of the MPRSA and helped in the negotiation of the strong international Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. As part of our continuing concern over ocean dumping, we have reviewed the proposed revised ocean dumping criteria, the associated draft EIS, the EIS's on site designations, and other information available on program implementation as it relates to environmental impact analysis. Based on this review, we believe that EPA's ocean dumping program could be strengthened in at least four respects. CO? H ------- -2- 1. The draft environmental impact statement concerning ocean dumping criteria should oe expanded to provide a more comprehensive analysis of the program. *¦ — — - - — -- - The continuation of an extensive ocean dumping program has prolonged the national controversy over dumping and whether or not there are environmentally acceptable alternatives to it, CEQ's 1970 Report to the President argued for a comprehensive national policy on ocean dumping of wastes to ban unregulated ocean dumping of all materials and to strictly limit our disposal of any materials harmful to the marine environment. It also called for authority for the EPA Administrator to ban ocean dumping of specific materials and to designate safe sites. (See especially pps. v-vi). With the passage of the MPRSA, Congress called for the prevention or strict limitation of dumping of any materials which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. (See Section 2(a) and (b) of the Act.) The Convention provides that states should take all practical steps to prevent the pollution of the oceans by dumping (See Article I of the Convention). Today there is no clear public understanding of the issues involved in phasing out ocean dumping, what alternatives for disposal exist, or what relative environmental degrada- tion is caused by dumping versus other methods of disposal. It is time, we think, that EPA provide Congress and the public forum with a comprehensive analysis of these basic questions. Such an analysis should be provided through the expansion of the present DEIS on criteria for ocean dumping. A program environmental impact statement of this kind should have been issued with the earlier publication of criteria for ocean dumping. Given the proposed revisions, it would appear that now is a good time to accomplish I this purpose by redrafting and resubmitting the draft EIS that covers these program issues. Absent such a new i DEIS, there appears to be no forum for EPA to address alternatives to its proposed program of dumping. The present draft on criteria revisions does not do so, nor do the two site selection statements that have been prepared to date. And since no impact statements have ------- -3- been prepared on individual permit applications, the alternatives for each permit will not be reported to Congress, interested agencies, and the public in a manner providing for full disclosure and an opportunity to comment. If the draft statement were revised, expanded, and reissued, it could and should catalogue the generic impacts associated with ocean dumping and set forth alternatives to the proposed program, including alterna- tive disposal techniques. Once adequately done, this analysis could be drawn upon in the preparation of site- related EIS's and assessments for individual permits. Taking into consideration the resources to be affected and types of materials to be disposed of, as well as information provided by EPA's preparation of statements on dumping site designations, EPA would have a solid environmenal basis for considering individual applications in terms of realistic alternatives. 2. The proposed ocean dumping criteria should themselves be clarified and strengtheneflT First, the regulations should adequately define the term "trace contaminants." The Convention and the MPRSA by cross reference prohibit the dumping of materials with certain "trace contaminants." Permit applicants and other affected persons should be advised in advance of what levels of contamination will be allowed under these prohibitions. Carefully specified limits based upon the best scientific evidence available should be set forth in the criteria. These limits should be adjusted periodically as developments occur in our ability to detect contaminants and as our understanding of their toxicity and impacts improves. Second, the extent to which the proposed regulations differentiate between dredged and non-dredged materials should be re-examined. It is not altogether clear that dredged and non-dredged materials should be subject to different standards under the MPtSA and the Convention; nor is it a logical distinction from the viewpoint of environmental impact. Any disparity in allowing the dumping of dredged and non-dredged wastes should be accompanied with a rationale and should be fully explained in the accompanying impact statement. t§ 593 ------- -4- Third, it would appear that the Act requires both the permitting authority and the applicants for ocean dumping permits to show that issuance of permits will not cause unreasonable degradation of the marine environ- ment. Thus, the question of when and where the burden of proving non-degradation is to be placed should be clearly resolved. Clarification of these three points in the final criteria and an explanation of EPA's interpretations in the EIS would be a substantial aid to public understanding. 3. The environmental assessment of individual dumping sites should be accelerated. Article 4 Subparagraph 2 of the Convention specifically requires prior studies of dumping sites. EPA has agreed to do environmental impact statements on permanent designation of dumping sites. Yet four years into the implementation of the MPRSA, we have only received two EIS's for the sites currently being used. These are a draft EIS on the New York Bight and a final EIS on in- cineration of wastes in the Gulf of Mexico. The other twelve sites continue in use. This record suggests that environmental statements on dumping sites should be prepared on a more timely basis. Because the development of criteria for ocean dumping goes hand in hand with site selection, we recommend establishment and enforcement of an accelerated program to prepare environmental statements on all dumping sites. Our review of the first two EIS's makes clear that this will not be an easy task. Nonetheless, a program to collect the necessary data on impacts and alternatives must be undertaken if we are to continue a national program of ocean dumping. 4. If a program EIS_and site EIS's adequately address impacts and alternatives, it may not be necessary to prepare and consider EIS's on individual permits. Once the program EIS and appropriate dumping site EIS's _ have been prepared and circulated, an adequate information base should exist with regard to the impacts of dumping and alternative disposal methods. It would then not be necessary in most cases to prepare full EIS's on individual dumping permits. Instead, EPA could draw on the analyses in the earlier EIS's and prepare an environmental assess- ment on the particular application. This assessment could ri 594 ------- -5- also use materials supplied by the applicant, and should be part of the public record and be available during the permit review process. In special cases, e.g. where highly toxic materials or unusually large amounts of waste are proposed to be dumped, the program and site EIS's may not adequately address impacts, in which event a full EIS will need to be prepared on the permit action. In summary, we recommend that EPA (a) re-issue its draft statement on revised criteria as a program EIS on the ocean dumping permit program, addressing both generic impacts associated with such a program and alternatives thereto; (b) revise the criteria to resolve the key issues of "trace contaminants" definition, treatment of dredged versus non-dredged materials, and burden of proof; and (c) accelerate the issuance of environmental impact statements on site designations. We believe the resultant approach would provide a sound analytic basis for the permit program and establish a procedure to meet the requirements of NEPA in an efficient and timely manner, without resort to EIS's on each permit action. If you have any questions regarding these observations and recommendations, please do not hesitate to let me know. Sincerely, Russell W. Peterson Chairman Honorable Russell E. Train Administrator Environmental Protection Agency Washington, D.C. 20460 H 58G ------- #81 Comments received from the Council on Environmental Quality (CEQ), Washington, D. C. The attached letter responds to the CEQ recommendation that an EIS be prepared on the entire ocean dumping program. Revisions have been made in the criteria to respond to these and other comments concerning the criteria for dredged material and trace contaminants. The rationale for these changes is pre- sented in the EIS. The baseline survey and site designation EIS program is underway and is being implemented as rapidly as funds allow. Any increase in funds available to the program would be largely devoted to accelerating EIS's on the disposal sites. H 536 ------- ENVIRONMENTAL PROTECTION AGENCY KOV 2 197D Mr. Steve Jelenlk Council on Environmental Quality 722 Jackson Place, N.W. Washington, D. C. 20006 Dear Steve: This is in response to Mr. Peterson's letter to Mr. Train of September 27, 1976, concerning the Draft Environmental Impact Statement (EIS) on the Proposed Revisions to the Ocean Dumping Regulations and Criteria. We have discussed the Issues of EIS's on individual permits in the past, and have responded formally to Council on Environmental Quality (CEQ) on this subject. We feel that an EIS on the entire ocean dumping program would serve little purpose at the present time, although, it probably would have helped when the program was first begun. At the present time, the policies under which the program operates have already been set, we have phased out many ocean dumpers and have others on imple- mentation plans to use other means of waste disposal. In addition, we are doing EIS's on ocean dumping sites and the requirements for these are using up our very limited resources. We have received many comments on the proposed revisions to the criteria, and are in the process of making changes based on these comments. We are well aware of the issues surrounding the trace contaminants and dredged material criteria, and we anticipate making some changes in these to resolve some of the Issues raised. Sincerely yours. ¦StoTp55" John T. Rhett Deputy Assistant Administrator for Water Program Operations (WH-546) H 597 -------