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
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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: '
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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#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.
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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> »-*•
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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.
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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
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Mr. T.A. Wastler
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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
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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
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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
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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).
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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
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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
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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).
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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.
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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).
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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
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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).
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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."
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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
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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).
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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
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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.
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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).
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(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.
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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,"
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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
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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.
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(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.
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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."
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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
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#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.
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* 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
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#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>
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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
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#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
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#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
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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
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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
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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
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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
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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
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#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
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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
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#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
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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
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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
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#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
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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
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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
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#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
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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
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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.
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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
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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.
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#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
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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
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AMERICAN LITTORAL SOCIETY
V
"Jk Sludi, O.d C/ ¦ ¦X 'JKK (J /l:-,0c Jj
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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
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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
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#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
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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
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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
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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
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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
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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
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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
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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
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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
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#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
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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
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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
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#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
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/ 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
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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
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- 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
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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
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#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
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#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
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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
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#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
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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
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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
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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
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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
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#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
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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
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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
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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
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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
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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
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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
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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
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•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
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#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.
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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
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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
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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
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#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
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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)
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#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.
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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
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#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.
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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
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#27
Comments received from U.S. Department of Commerce, NOAA,
Southwest Fisheries Center, La Jolla, California.
No response necessary.
H 130
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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
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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
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_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
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-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
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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
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#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
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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
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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
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#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
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#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
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#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
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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
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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
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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
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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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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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
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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
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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.
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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
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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
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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
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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
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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.
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»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
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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.
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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
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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)
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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)
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#31
Comments received from U. S. Environmental Protection
Agency, Region VI, Dallas Texas.
No response necessary-
H 18G
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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
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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).
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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.
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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
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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.
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Mr. T. A. Wastler
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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."
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Mr. T. A. Wastler
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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
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Mr. T. A. Wastler
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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
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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
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#32
Additional comments received from National Wildlife
Federation (NWF), Washington, D. C.
See response to NWF, #3.
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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
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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
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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."
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Mr. T. A. Wastler
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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
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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
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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
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#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
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#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
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#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
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#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
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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
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#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
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#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.
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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
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#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
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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
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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
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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
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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
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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
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- 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
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- 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
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- 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
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- 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
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- 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
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- 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
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- 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.
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- 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£_
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#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
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#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.
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#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
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#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.
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#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.
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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
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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
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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
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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
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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
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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
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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
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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
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#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
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#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.
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#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
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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
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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
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#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
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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
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#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
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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
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#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 *¦<
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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
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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
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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
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-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
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-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
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-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
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-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
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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
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-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
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-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
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-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
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-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.
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-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
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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
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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
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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
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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
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_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.
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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-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
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#42
Additional comments received from National Wildlife
Federation (NWF), Washington, D.C.
See response to NWF, #3.
H 282
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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
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-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
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-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
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#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
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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
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#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
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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
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#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
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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
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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
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#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
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EPA WSH
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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
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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
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(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
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- 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
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- 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
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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
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- 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
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- 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
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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
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_ 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
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- 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
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§ 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.
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§ 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.
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- 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
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§ 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.
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- 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
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- 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
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§ 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.
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§ 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.
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- 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
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§ 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.
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- 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
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- 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
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§ 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
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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.
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Brungs, W.A. 1969. Chronic toxicity of zinc to the fathead
minnow, Pimephales oromelas Rafinesque. Trans. Amer.
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* Calabrese, A., R.S. Collier, D.A. Nelson and J.R. Mclnnes.
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American oyster (Crassostrea virginica). Marine
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Calloway, R.J., A.M. Teeter, D.W. Browne and G.R. Ditsworth.
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* Clarke, G.L. 1947. Poisoning and recovery in barnacles
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CI
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* Hoffman, C. 1950. Beitrage zur kenntnis der wirkung von giften
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* 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.
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from Minimata factory. Kummamoto Med. Journal. 15:
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* Jackim, E., J.M. Hamlin, and T. Sonis. 1970. Effects of
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* Karbe, L. 1972. Marine Hydroiden als testorganismen zur
prufung der toxizitat von wasserstoffen. Die wirkung
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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
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C2
H
385
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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
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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.
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#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.
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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.
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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.
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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.
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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.
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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).
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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.
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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,...
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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
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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
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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
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#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
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#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.
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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
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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 /
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#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
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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
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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
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#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
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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
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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
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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
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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
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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
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#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
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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
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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
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#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
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#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
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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
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#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
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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
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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
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#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
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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
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#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
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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
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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
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#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\
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#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
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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
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"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 * <-?
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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
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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
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#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
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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
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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
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- 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
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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
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#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
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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
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-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
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-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
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#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
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CONSERVATION
KAA/ FOUNDATION B K , k _
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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
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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
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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
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Mr. T.A. Wastler
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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
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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
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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
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Mi'. T.A. Was tier
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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
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Mr. T.A. Wastler
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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
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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
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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
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#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
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#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
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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
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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
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#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
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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 „
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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
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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
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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
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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
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#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
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#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
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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
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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
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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
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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
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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
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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
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#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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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#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
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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
-------
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Chairperson, TPC
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West Main Road
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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
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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
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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
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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
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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
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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
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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
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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
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#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-
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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 *
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#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
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#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
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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.
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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'.
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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
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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
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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
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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
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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
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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
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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
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#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
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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
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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
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#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
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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
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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
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- 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
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- 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
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#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
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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
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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
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#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
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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?
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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
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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
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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
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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
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#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.
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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
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