Regulatory Framework for the Management and Remediation of Contaminated Marine Sediments

Kenneth S. Kamlet and Peter Shelley

Editors' Summary: In 1989, a National Research Council study concluded that contaminated sediments are "widespread in U.S. coastal waters" and have "potentially far-reaching consequences to both public health and the environment." A 1996 interim EPA report reached a similar conclusion. This concern over contaminated sediments is not new. It has manifested itself in a dizzying array of statutory and regulatory restrictions on the disposal of these sediments. In this Article, two members of the Marine Board Committee on Contaminated Marine Sediments explain this complex framework of legal requirements. The Article begins with an examination of the law governing navigation dredging and sediment placement. It then discusses the relevant provisions of CERCLA, the FWPCA, the biennial Water Resources Development Acts, and federal laws authorizing state programs that apply to contaminated sediments. Finally, it examines how these various provisions interact and suggests ways in which this legal framework could be improved.

Mr. Kamlet, who served as co-chair of the Marine Board Committee on Contaminated Marine Sediments, is currently counsel to N.W. Bernstein & Associates, Washington, D.C. Mr. Shelley, who was a member of the Marine Board Committee, is a senior attorney and project director for Marine Resources and Water Resources of the Conservation Law Foundation, Inc., Boston, Massachusetts.

This Article is adapted with permission from Contaminated Sediments in Ports and Waterways: Cleanup Strategies and Technologies. Copyright 1997 by the National Academy of Sciences. Courtesy of the National Academy Press, Washington, D.C. This Article first appeared as Appendix B to that document, which was a National Research Council, Marine Board, report. The report was published by the National Academy Press (ISBN 0-309-05493-1), and released on March 26, 1997. The manuscript has been updated by Mr. Kamlet to reflect recent developments and has been edited by the ELR staff.

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Contaminated sediments are widespread in U.S. coastal waters and have potentially far-reaching consequences to both public health and the environment.

So concluded a 1989 National Research Council study.¹ To similar effect was the U.S. Environmental Protection Agency's (EPA's) 1996 interim report, The National Sediment Quality Survey: A Report to Congress on the Extent and Severity of Sediment Contamination in Surface Waters of the United States. The EPA report, which evaluated data on the chemical and biological quality and physical composition of sediments at more than 21,000 monitoring stations, identified 96 U.S. watersheds as "areas having potential widespread sediment contamination."² And fully 35 percent of the more than 6,700 river reaches or waterbody segments evaluated were found to have at least one station categorized as "Tier 1"—defined as having a higher probability of adverse effects for aquatic life or human health.³

Beyond the potential environmental and health effects of contaminated sediments, what is the significance of this issue to regulated industry? The issue is—or should be—of concern to two main categories of regulated entities: dredgers⁴ and discharge sources.⁵ Dredgers must now contend with more sensitive test methods that classify more and more dredged material as contaminated, at the same time that regulatory restrictions and limitations on permissible [27 ELR 10484] disposal options make management of such sediments more difficult and costly. Discharge sources are receiving increased scrutiny and are being exposed to rapidly expanding cleanup and abatement responsibility and liability as:

more sites with contaminated sediments are being placed on the Superfund⁶ national priorities list (NPL);

serious sediment contamination is being confirmed in waterways throughout the United States—often linked to fish and shellfish disease and consumption bans;

regulatory and enforcement initiatives are focusing increasingly on watersheds and ecological risk;

EPA and states are being encouraged to apply impaired water (total maximum daily load (TMDL)) authorities to downstream sediment impacts;

billion-dollar natural resource damage claims continue to be directed at contaminated sediment sites;

multiple EPA regultory programs are making a coordinated effort to increase their attention to sediment impacts;

sediment quality criteria are being increasingly used by state and federal regulators as a screening and enforcement tool; and

downstream dredgers and other users begin employing citizen suit authority under the Resource Conservation and Recovery Act (RCRA)⁷ and other statutes to recoup the increased costs imposed on them by upstream discharge sources.

These regulated entities must concern themselves with numerous federal laws and regulations that apply to aspects of the handling and placement of sediments and the means by which they become contaminated. However, no single legal authority is geared specifically to the management of contaminated sediments. Instead, a diverse mix of differing legal requirements comes into play depending on the nature and location of, and the reason for, the dredging and ultimate placement.

The complexity of this framework is attributable in part to the differing objectives and legal thrusts of the patchwork of statutes and regulations that make it up. Factors that influence which regulatory requirement applies in a given case include:

the navigability of the waterway from which the sediments are excavated—that is, the area in or adjacent to a navigation channel (in which case the Rivers and Harbors Act of 1899 (RHA), for example, would apply);

the proposed destination of the sediments—that is, land, ocean, or inland waters (RCRA, the Federal Water Pollution Control Act (FWPCA),⁸ no law,⁹ or the Marine Protection, Research, and Sanctuaries Act (MPRSA)¹⁰ would apply);

the driving force for sediment management—that is, navigation enhancement (the RHA, the FWPCA, and/or the MPRSA would apply), environmental remediation/restoration (the FWPCA, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹¹ and Water Resources Development Acts (WRDAs)), water quality improvement (the FWPCA), waste disposal (RCRA and CERCLA), or beneficial use (WRDAs); and

the management strategy used—that is, no-action or natural restoration (no law, CERCLA, or the FWPCA¹² would apply), in situ containment or treatment (the RHA, the FWPCA, the MPRSA, CERCLA, or RCRA), or ex situ containment or treatment (the FWPCA, the MPRSA, CERCLA, or RCRA).¹³

This Article examines this framework in seven sections: (1) the navigation connection (navigation dredging and sediment placement and the role of the RHA and FWPCA § 404¹⁴); (2) site cleanup (remediation and damage restoration provisions of CERCLA); (3) FWPCA provisions (regulatory provisions other than § 404); (4) biennial WRDAs (miscellaneous authorizing, regulatory, beneficial use, and funding provisions); (5) state regulatory authorities (FPWCA § 401¹⁵ and Coastal Zone Management Act (CZMA)¹⁶ consistency provisions); (6) gaps, overlaps, and uncertainties (including scenarios illustrating how difficult it can be even to determine which authorities apply); and (7) potential regulatory reforms (opportunities for improvement).

Although this Article focuses on contaminated sediments, it includes a discussion of relevant provisions that primarily concern sediments generally. Contaminated sediments are only one category of sediments and many regulatory authorities address sediments in general.¹⁷ This Article also includes some evaluation of potentially viable options for improving control of the sources of sediment contamination.¹⁸ And it discusses other provisions that are used—and, in some cases, could be used more effectively—to reduce [27 ELR 10485] upstream activities that ultimately impact downstream sediment quality.¹⁹

The Navigation Connection

The excavation of sediments, when carried out in "navigable" waters, requires a U.S. Department of the Army permit under § 10 of the RHA.²⁰ This same statute applies to in-place or ex situ capping, treatment, or subaqueous containment of sediments if the activity has the effect of altering the navigable waterway's "course, location, condition, or capacity."²¹ For example, a § 10 permit is required if sediments are placed in a near-shore or offshore confined aqueous site to create an artificial island or extend waterfront real estate.²²

An Army permit is also required when dredged sediments are "disposed" of in ocean, inland, or near-coastal waters. For the dumping of dredged material in the ocean (including the territorial sea, which extends three miles out from the mean low watermark), the applicable statutory provision is § 103 (permit issuance) of the MPRSA, popularly known as the Ocean Dumping Act.²³ If the discharge site is in waters of the United States, excluding the territorial sea, then FWPCA § 404 would apply.²⁴

Under MPRSA § 102 (ocean dumping criteria),²⁵ EPA develops discharge criteria in conjunction with the U.S. Army Corps of Engineers (the Corps) for the dumping of dredged material in ocean waters. The contaminant status of the material is determined using an ocean dumping manual commonly called the "Green Book."²⁶ Green Book procedures are also used to determine whether dredged material is acceptable or unacceptable for unrestricted ocean dumping.²⁷ Before a decision is made regarding dumping in ocean waters, consideration is given to any management actions that may be necessary.

Under FWPCA § 404, EPA develops guidelines in conjunction with the Corps for specifying dredged or fill material disposal sites. The contaminant status of the material is determined using a manual commonly called the "Gold Book."²⁸ The Gold Book procedures are used to determine whether the sediment is suitable for unrestricted open-water disposal or whether restrictions might be required.

Section 404 does not prohibit the open-water disposal of highly contaminated sediments as long as management actions, such as capping or treatment, are used to bring the sediment disposal activity into compliance with the guidelines. The use of sediments to create, restore, or enhance wetlands, as well as other beneficial uses that may impact waters of the United States, also are regulated under § 404 and evaluated using the § 404 guidelines.

Under both the MPRSA and FWPCA, tiered-testing procedures are used to evaluate the suitability of dredged sediments for open-water placement. These procedures consider the proximity of known pollution sources to the area to be dredged, the physical and chemical properties of the sediments, and, as appropriate, the results of biological tests. For example, under the ocean dumping criteria²⁹ and associated interagency guidance, a combination of sediment bioassays and bioaccumulation tests is used to assess both the acute toxicity of sediments to resident biota and the potential for the bioaccumulation of sediment contaminants. Based on such tests, dredged material can be classified as either suitable for unrestricted open-water placement or unacceptable for unconfined open-water placement. If the [27 ELR 10486] results of laboratory tests indicate a potential for unacceptable adverse effects, then management actions (or management of the placement) need to be considered. Laboratory tests are only indications of potentially unacceptable adverse effects; they are not pass-fail criteria for purposes of the MPRSA.³⁰ In making a decision regarding acceptability, the decisionmaker must consider the effects of the discharge pursuant to 40 C.F.R. § 227.13(c)(2)(I) and § 227.13(c)(3).

MPRSA and FWPCA requirements primarily apply to the placement in open water of large quantities of dredged material. They have no applicability to the in-place treatment or containment of contaminated sediments—except to the extent that other sediments must be "discharged" to "cap" or otherwise contain the contaminants of concern. These requirements are also inapplicable to treatment or containment on land—except to the extent there may be incidental filling of wetlands or other waters.

One potentially troublesome area involves the land placement of contaminated sediments where there is no runoff back into waters of the United States. In these cases, sediment excavation, if in navigable water, would be regulated by RHA § 10, and the dredged material might be subject to consideration as a hazardous waste under RCRA, if it displayed a hazardous waste "characteristic" (e.g., by toxicity characteristic leaching procedure testing). A pending Federal Register rule change³¹ will address situations in which sediment is proposed for land placement. The proposed change does not address whether sediment placement on land is subject to solid waste regulation by the states. However, the Corps has asserted since at least 1988 that dredged material is not subject to regulation under RCRA, either as a hazardous or a solid waste.³²

Another problem, which is associated with the regulation of dredged material under FWPCA § 404, is that the emphasis of the § 404 program has evolved from specifying open-water disposal sites for dredged material to protecting ecologically valuable wetlands (and other "special aquatic sites"). Thus, many of theprocedures (e.g., the required "sequencing" of avoidance, minimization, and mitigation measures, and the need to do detailed "alternatives analysis") mandated under EPA's § 404 guidelines really have little, if any, applicability to the open-water disposal of sediments in connection with the navigation dredging of rivers and harbors. This situation has led to suggestions by, for example, the American Association of Port Authorities, that § 404 be revised to focus on wetlands (and other "special aquatic sites") and the placement of fill material, with the establishment of a new and separate section to deal with the open-water disposal of dredged material.

Site Cleanup

Several hundred million cubic yards of sediments are dredged annually from navigable rivers and harbors. Only a small fraction of this volume can be considered "contaminated" in terms of restrictions on the ability to place the material in open water.³³ By contrast, many sites with no link to navigation require cleanup for environmental reasons. A growing number of these sites involve significant contaminated sediment problems.

Superfund

There are approximately 1,300 contaminated sites around the country that are listed or proposed for inclusion on the Superfund NPL.³⁴ NPL sites are highly contaminated areas, often associated with prior hazardous waste disposal activities, that are targeted for priority cleanup through long-term remedial action. Another 10,000 potential Superfund sites are included in an EPA database (the CERCLIS inventory). These sites are assessed systematically by EPA to determine which ones could be added to the NPL.³⁵ Many other sites are subject to cleanup under state-level Superfund laws.

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According to EPA data,³⁶ 77 (10.8 percent) of the 712 Superfund NPL sites for which records of decision (RODs) were signed in fiscal years 1982-1991 involved contaminated sediment (both marine and freshwater) as a significantly contaminated "matrix." A much higher percentage of sites (78.5 percent) involved groundwater contamination, based on Superfund's historically greater emphasis on human health than on ecological impacts. Contaminated sediments are likely to be a growing factor at Superfund sites that reach the ROD stage in the future because of the increasing emphasis in EPA regulations on natural resource and food-chain impacts.³⁷ An indication of this trend is the large number of NPL sites without RODs—523 representing nearly all of the more than 537 NPL sites not yet at the ROD stage (at this writing)—involving contaminated soil, sediment, or sludge.³⁸

In selecting a remedy under Superfund, nine criteria must be addressed:³⁹

. overall protection of human health and the environment;

. compliance with applicable or relevant and appropriate regulatory requirements (ARARs);

. long-term effectiveness and permanence;

. reduction of toxicity, mobility, or volume through treatment;

. short-term effectiveness;

. implementability;

. cost;

. state agency acceptance; and

. community acceptance.

These criteria can be reduced to the following three overall screening factors:

. environmental acceptability (i.e., overall protection of human health and the environment, compliance with ARARs, state agency acceptance, and community acceptance);

. technological feasibility (i.e., long-term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability); and

. economic viability (i.e., cost).

Where contaminated sediments are addressed under Superfund, the aforementioned nine criteria must be applied in evaluating managment alternatives, including compliance with ARARs. ARARs may include "applicable" regulatory requirements, such as "sediment quality criteria" under development by EPA. They may or may not also include—as urged by representatives of the National Oceanic and Atmospheric Administration (NOAA)—"Long and Morgan" sediment values,⁴⁰ which are measurements that reflect the contaminant concentrations associated with toxicity to aquatic biota (or maximum nontoxic concentrations) in coastal areas. ARARs also include "relevant and appropriate" regulatory standards, even if not directly applicable in the particular situation. The Corps' dredged material tiered-testing procedures, including sediment bioassays and bioaccumulation tests, perhaps could be considered ARARs from this standpoint.⁴¹

In addition to Superfund's nine criteria for evaluating remedial alternatives, there is a general statutory preference for treatments that "permanently and significantly reduce the … toxicity or mobility" of contaminants.⁴² The in-place or ex situ capping of contaminated sediments generally would not be considered to have the requisite quality of "permanence"—in the same sense as the destruction or detoxification of sediment contaminants would. However, as discussed in the 1997 National Research Council report,⁴³ properly engineered capping may be an optimum management technique for contaminated sediments under some circumstances. Although there may be ways to augment passive capping (e.g., by amending with nutrients or microorganisms to promote biodegradation or by adding activated carbon to physically adsorb contaminants) to more closely resemble typical "treatment" methods and thereby gain the status of a "preferred remedy" under CERCLA § 121(b),⁴⁴ it may be appropriate to consider changing § 121(b) to clarify the circumstances under which engineered capping will be considered a "preferred" Superfund remedy (e.g., low-to intermediate-level contamination spread over large areas of aquatic bottoms).

Natural Resource Damage Claims

The Superfund law is known primarily for its provisions relating to the cleanup of NPL sites. However, in addition to these remedial response authorities, the Superfund law contains significant provisions for forcing the restoration of "injured" natural resources. The term "natural resources" is defined expansively to encompass not only fish, animals, birds, and other biota, but also air, water, and groundwater resources.⁴⁵ The U.S. Department of the Interior (DOI) natural resource damage assessment regulations define "water resources" to include associated sediments.⁴⁶

Superfund authorizes designated federal and state "trustee" agencies (and Indian tribes) to initiate natural resource damage claims against persons responsible or injury to, destruction of, or loss of natural resources "resulting from" the release or threatened release (causing response costs) of a hazardous substance.⁴⁷ Recovered funds must be used [27 ELR 10488] "only to restore, replace, or acquire the equivalent of" the injured natural resources, but the measure of damages is not limited by the sums that can be used to restore or replace such resources.⁴⁸ Restoration costs can be enormous, particularly in the coastal marine environment, where contaminated sediments can affect hundreds or thousands of square miles. Thus, whereas Superfund remedial actions (which are geared to mitigating an imminent hazard to health or the environment) have an average price tag of $ 20 million to $ 25 million per site, a natural resource damage claim (which is geared to restoring the injured resource to its prerelease, undamaged condition) can be orders of magnitude more expensive. Given that the DOI issued final revised damage assessment regulations in March 1994,⁴⁹ which, from one perspective, stated the statute of limitations⁵⁰ clock running again, it can be anticipated that a flurry of natural resource damage claims will be brought in the next few years before the expiration of the statute.⁵¹

The primary relevance of Superfund natural resource damage authorities to marine sediment remediation is that they may serve to constrain cleanup options. Specifically, if a contaminated sediment site is part of a natural resource damage proceeding, then mere cleanup or capping to avoid an imminent hazard to health or the environment will not be sufficient. Instead, under CERCLA § 107(f)(1),⁵² the only acceptable "remedy" will be one that restores, rehabilitates, or acquires the equivalent of the injured natural resources—including coastal waters, sediments, and associated biota.

Hot Spot and Chronic Sediment Contamination

Superfund sites can involve the contamination of sediments, other environmental media, or both. They also can involve either relatively localized hot spots of contamination or more extensive areas. Often a Superfund "facility" or site will involve multiple "operable units," each requiring distinct types of remedial action. Within an operable unit, there may be identifiable hot spots of contamination toward which the proposed remedy will usually be primarily directed. Other environmental statutes, notably the FWPCA and various biennial WRDAs, also directly (or indirectly) address the issue of contaminated sediment hot spots.⁵³

FWPCA Provisions

The FWPCA contains a number of provisions, in addition to § 404, that have general or site-specific relevance to contaminated sediments and sediment-associated contamination.

FWPCA § 115

FWPCA § 115⁵⁴ (in-place toxic pollutants), although seldom funded and even less frequently utilized,⁵⁵ directs EPA "to identify the location of in-place pollutants with emphasis on toxic pollutants in harbors and navigable waterways." This section also authorizes EPA, acting through the Corps, "to make contracts for the removal and appropriate disposal of such materials from critical port and harbor areas." Thus, § 115 takes the common sense approach of allowing the removal of hot spots of toxic pollutants to be "piggybacked" on nearby dredging carried out for navigation reasons, with EPA reimbursing the Corps for the incremental costs. The eminently plausible logic supporting this approach is that dredging for hot spot removal in conjunction with a navigation project would be far less costly than carrying out a separate, freestanding remediation project. Note that "appropriate disposal" still is required for any contaminated sediments that are so excavated. It is unfortunate that this provision, which is the only FWPCA provision directed at managing in-place contaminated sediments, is not used more often.

FWPCA § 303

FWPCA § 303⁵⁶ (water quality-based discharge limits) requires each state to establish numerical or narrative water quality standards for each pollutant to protect designated uses of regulated waterway segments. However, the FWPCA's primary mechanism for controlling point sources of water pollution is the use of technology-based effluent limits.

Where technology limits prove insufficient to meet water quality standards in a given waterway segment, § 303 requires that more stringent, water quality-based discharge limits be imposed. States must identify water quality limited bodies of water—those that cannot meet the quality-based standards simply by adhering to technology-based limits. After a state establishes and EPA approves a list of quality-limited waterway segments, the state must conduct a study to establish the TMDL for each pollutant that the [27 ELR 10489] body of water can receive without violating the water quality standard. The TMDLs then are used to establish waste load allocations (WLAs) for each point source of each pollutant, after leaving unallocated a portion of the TMDL as a margin of safety. Nonpoint sources, such as stormwater runoff, are assigned load allocations (LAs). As one of the FWPCA's few watershed-oriented regulatory provisions, and one that addresses both point and nonpoint sources of pollution, this provision has a significant potential to control upstream sources of downstream sediment contamination.

Although the requirements for TMDLs, WLAs, and LAs have been part of the FWPCA since 1972, EPA and the states have been unable to implement this program fully.⁵⁷ However, environmentalists have shown a recent willingness to use FWPCA citizen suit authority to require EPA to enforce state adherence to § 303 TMDL requirements more vigorously.⁵⁸ In the absence of new legislation explicitly requiring pollutants to be managed on a watershed-wide basis, or expressly holding upstream discharge sources accountable for resultant downstream sediment contamination,⁵⁹ water quality discharge limits under § 303 are among the few available mechanisms under existing law by which regulators could more aggessively regulate upstream pollution sources that impact sediment quality.

FWPCA § 304(l)

FWPCA § 304(l)⁶⁰ (toxic hot spots) required the states to identify in 1989 those state waters that could not attain or maintain ambient water quality standards "due to toxic pollutants." For each segment of toxics-limited navigable waters, the states were to identify "the specific point sources" discharging any toxic pollutant and the amount of each such pollutant believed to be contributing to such water quality impairment. Finally, the states were to develop an "individual control strategy" for each waterway segment capable of meeting applicable water quality standards within three years. This provision is not directed at contaminated sediments.⁶¹ However, to the extent it promotes the control of point source toxic discharges that contribute to sediment contamination, it is a relevant component of a contaminated sediments remediation strategy. Although the statutory deadlines for state action under this provision have passed, the provision directs EPA to implement the requirements in the absence of an approvable state strategy.

FWPCA § 307

FWPCA § 307⁶² (toxic pollutants and pretreatment) requires effluent limitations based on the "best available technology economically achievable" for the applicable category or class of point sources to be applied to discharges of specified priority toxic pollutants. This section also requires that pretreatment standards be applied to prevent discharges into publicly owned treatment works from interfering with, passing through, or otherwise being incompatible with such treatment works. Like § 304(l), this section is indirectly relevant to the problem of contaminated sediments and toxic hot spots.

FWPCA § 319

FWPCA § 319⁶³ (nonpoint source pollution) requires states to submit to EPA for approval a report identifying navigable waters within the state that, without additional action to control nonpoint sources, could not reasonably be expected to attain or maintain applicable water quality standards or goals. States then are required to establish and implement a management program for nonpoint sources, emphasizing a watershed approach and using "best management practices and measures." Although nonpoint source pollution contributes, along with point source discharges, to downstream sediment contamination, it is somewhat less likely than discrete point sources to contribute to hot spots of sediment contamination.⁶⁴

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FWPCA § 320

FWPCA § 320⁶⁵ (National Estuary Program) provides for the nomination and designation of estuaries of national significance that will be subject to supplemental controls on point and nonpoint sources of pollution based on a comprehensive management plan for the estuary. Sixteen estuaries throughout the United States were to be given priority consideration under this program. Most of these estuaries have since been addressed by the program. Section 320 is one of a number of geographically specific provisions under the FWPCA and WRDAs that may result in a variety of additional contaminated sediment management requirements at specific locations.

FWPCA § 311

FWPCA § 311⁶⁶ (oil and hazardous substance spills) establishes strict liability for discharges of oil or hazardous substances into or upon the navigable waters of the United States. This section supplements the provisions addressing point and nonpoint sources by focusing on contaminants introduced by inadvertent spills.

FWPCA § 402

FWPCA § 402⁶⁷ (point source discharges) establishes a permit program for point source discharges of pollutants into waters of the United States. This program has been delegated to the states in most parts of the country. In terms of contaminated sediments, one of the major limitations of this program is that it has tended to address, for any given discharge source, only a few of the toxic pollutants that may be present and may contribute to sediment contamination.⁶⁸ This limitation is compounded by the fact that, once a discharge permit is issued, it "shields" the discharger against later abatement efforts or damage claims directed even at pollutants not specifically addressed in the permit. Some EPA regions and states have sought to address this problem by requiring, in certain instances, the use of whole effluent bioassays and biomonitoring as permit conditions, so that the focus is placed on reducing overall toxicity—regardless of the mix of pollutants contributing to the toxicity.

FWPCA § 118(c)(3)

FWPCA § 118(c)(3)⁶⁹ (toxics in Great Lakes sediments) established a five-year study and demonstration program in the Great Lakes relating to the control and removal of toxic pollutants, with an emphasis on bottom sediments. EPA was directed to publish a variety of information, including "specific numerical limits" to protect health, aquatic life, and wildlife from the bioaccumulation of toxic substances. A final report to Congress was due at the end of 1993. This was the basis for EPA's Assessment and Remediation of Contaminated Sediments (ARCS) program. The ARCS program has evaluated a number of contaminated sediment technologies—particularly at heavily contaminated sites in the U.S. Great Lakes known as "areas of concern" under the U.S.-Canada Great Lakes Water Quality Agreement.⁷⁰

Other FWPCA Provisions

The FWPCA identifies a number of other specific regional problem areas for targeted remedial or planning efforts related to contaminated sediment issues. These areas include the Chesapeake Bay (establishment of a Chesapeake Bay Program to determine, among other things, the impact of sediment deposition in the bay and the sources, rates, routes, and distribution patterns of such sediment disposition);⁷¹ the upper Hudson River (project to demonstrate methods for the selective removal of polychlorinated biphenyls contaminating bottom sediments of the Hudson River);⁷² and Long Island Sound (management study to address issues including "contaminated sediment and dredging activities").⁷³

Biennial WRDAs

Since the nineteenth century, Congress has periodically enacted public works legislation authorizing water resource projects. Originally termed the Rivers and Harbors Acts, which were adopted at irregular intervals, more recent legislation has been enacted as WRDAs, and there has been an effort to enact them every two years.⁷⁴ Although WRDA statutes are primarily intended to authorize federal funding for particular navigation and flood control projects and to specify cost-sharing formulas for eligible projects, they have often been used as vehicles for modifying the regulatory framework (or for waiving or varying certain regulatory requirements on a project-specific basis) for water resource projects.

The following discussion summarizes provisions of the various WRDA statutes that either directly address sediment issues or deal more broadly with management issues. These issues include cost sharing for navigation projects and incentives for the beneficial use of dredged material. This section discusses provisions of the biennial WRDAs that relate to beneficial uses of dredged material, because beneficial uses are among the management options available for contaminated sediments, despite their more common application in connection with clean sediments.

WRDA 1986

WRDA 1986⁷⁵ reformed the Corps' civil works program by establishing a comprehensive cost-sharing scheme for [27 ELR 10491] distributing the construction costs for water resource development projects between the U.S. government and nonfederal interests.⁷⁶ The percentage of the nonfederal contribution for navigation projects depends on the depth of the project. For all navigation projects, however, the act requires that nonfederal interests (i.e., local sponsors) provide all necessary lands, easements, right-of-way, and dredged material placement areas, as well as perform necessary operation and maintenance (this is sometimes referred to as "the local cooperation requirement").⁷⁷ The value of these contributions is credited toward the nonfederal interest's share of the project costs. A 1993 Army legal opinion⁷⁸ held that the local sponsor is also responsible (in most cases) for "any diking costs necessary to prepare a site to function as a disposal area."⁷⁹

One of the ironic (and probably unintended) consequences of making the local sponsor responsible for dredged material placement facilities was that, all else being equal, a strong economic incentive was created to use open-water sites (which are "free") in preference to land and near-shore sites, which the project proponent must pay for. It also created a dichotomy between ports and harbors in different parts of the country. For example, § 123 of the Rivers and Harbors Act of 1970⁸⁰ authorizes the Secretary of the Army to construct, operate, and maintain contained disposal facilities (CDFs) in the Great Lakes and their connecting channels, with local interests generally bearing none of the costs and, under certain circumstances, bearing only 25 percent of the construction costs.⁸¹ Because the presence of contaminated sediments in an area that lacks adequate, environmentally appropriate placement capacity for the material can create major impediments to proceeding with commercially essential navigation dredging, the issue of who must construct and operate a CDF can be of critical significance. (WRDA 1996 now requires the Corps to contribute to the cost of land placement facilities, including CDFs for dredged material, on the same cost-sharing basis as specified in WRDA 1986 for new-work dredging.⁸²)

Other WRDA 1986 provisions of interest include:

. § 704, which directed the Secretary of the Army to investigate and study the feasibility of using the capabilities of the Corps "to conserve fish and wildlife (including their habitats)"⁸³

. § 730, which directed the Secretary of the Army to study "current practices on the sharing of costs related to the benefits of increased land values resulting from water resources projects [carried out by the Corps], together with potential methods by which any increase in land values should be shared between the Federal Government and the non-Federal interests"⁸⁴

. § 904, which required the Corps to display in the benefits and costs of water resource projects "the quality of the total environment, the well-being of other people of the United States, the prevention of loss of life, and the preservation of cultural and historical values"⁸⁵

. § 906, which authorized the Corps to carry out "mitigation of fish and wildlife losses, including the acquisition of lands or interests in lands to mitigate [such] losses, as a result of [a water resource] project," with the "first costs" of such enhancements to be a federal cost when the benefits are determined to be national (otherwise, nonfederal interests must pay 25 percent of these first costs)⁸⁶

. § 907, which specified that, in evaluating the benefits and costs of a water resources project, the benefits attributable to measures included for the purpose of environmental quality enhancement "shall be deemed to be at least equal to the costs of such measures"⁸⁷

. § 908, which established an Environmental Protection and Mitigation Fund to pay the federal share of mitigation costs⁸⁸; and

. § 1135, which authorized the Secretary of the Army to review the operation of completed water resource projects to determine the need for modifications "for the purpose of improving the quality of the environment in the public interest."⁸⁹

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WRDA 1988

WRDA 1988⁹⁰ contains only a few provisions of interest. Section 8⁹¹ directs the Secretary of the Army, "whenever feasible, [to] seek to promote long- and short-term cost savings, increased efficiency, reliability, and safety, and improved environmental results through the use of innovative technology in all phases of water resources development projects and programs under the Secretary's jurisdiction."⁹² And § 24⁹³ amends § 123 of the Rivers and Harbors Act of 1970 to authorize the Corps "to continue to deposit dredged materials into a contained soil disposal facility constructed under this section [i.e., in the Great Lakes] until the Secretary determines that such facility is no longer needed for such purpose or that such facility is completely full."⁹⁴

WRDA 1990

WRDA 1990⁹⁵ contains several provisions of interest. Section 312⁹⁶ authorized the Corps, as part of the operation and maintenance of navigation projects, "to remove … contaminated sediments … outside the boundaries of and adjacent to [a] navigation channel" whenever necessary to meet FWPCA water quality requirements. The Corps was further authorized to remove contaminated sediments from navigable waters "for the purpose of environmental enhancement and water quality improvement" when requested to do so by a nonfederal sponsor who agrees to pay 50 percent of the removal cost. Such removal need not be associated with any navigation project. Disposal costs for all contaminated sediment removal under this section are declared to be a "non-Federal responsibility," and the law in no way affects any party's liability under Superfund.⁹⁷

Section 306⁹⁸ directed the Secretary of the Army to "include environmental protection as one of the primary missions of the Corps in planning, designing, constructing, operating, and maintaining water resources projects." And § 307⁹⁹ established, as part of the Corps' water resources development program, "an interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the Nation's wetlands, as defined by acreage and function."¹⁰⁰ This provision is relevant because of the role of sediments in projects to restore, enhance, and create wetlands.¹⁰¹

WRDA 1992

WRDA 1992¹⁰² contains numerous provisions dealing with the management of contaminated sediments,¹⁰³ the beneficial uses of dredged material, and dredged material management options.¹⁰⁴ WRDA 1992 required the establishment of a National Contaminated Sediment Task Force.¹⁰⁵ The [27 ELR 10493] task force, which was required to submit a report to Congress by November 1, 1994, was directed to review reports on the extent and seriousness of aquatic sediment contamination in the United States; review programs on contaminated sediment restoration methods, practices, and technologies; review the selection of pollutants for the development of aquatic sediment criteria; provide advice on the development of guidelines for contaminated sediment restoration; recommend practices and measures to prevent contamination of aquatic sediments and control sources of sediment contamination; and "review and assess the means and methods for locating and constructing permanent, cost-effective long-term disposal sites for the disposal of dredged material that is not suitable for ocean dumping …."¹⁰⁶

In addition, EPA, in consultation with NOAA and the Corps, was directed to "conduct a comprehensive national survey of data regarding aquatic sediment quality in the United States."¹⁰⁷ The survey was to include a compilation of "all existing information on the quantity, chemical and physical composition, and geographic location of pollutants in aquatic sediment, including the probable source of such pollutants and identification of those sediments which are contaminated …." The resulting report to Congress (due by November 1, 1994) was to include "recommendations for actions necessary to prevent contamination of aquatic sediments and to control sources of contamination."¹⁰⁸

EPA, in consultation with NOAA and the Corps, was also directed "to conduct a comprehensive and continuing program to assess aquatic sediment quality"—including an assessment of aquatic sediment quality trends over time and the establishment of a clearinghouse for information on technology, methods, and practices available for the remediation, decontamination, and control of sediment contamination. The initial report was due by November 1, 1994, with updated reports due biennially thereafter.¹⁰⁹

WRDA 1992 also amended the MPRSA in a number of respects. These amendments included (1) changes to § 103(c) requiring EPA's concurrence in all Corps permit actions and precluding issuance of an ocean dumping permit by the Corps if the Administrator declines to concur; (2) changes to § 106(d) eliminating federal preemption of the right of states "to adopt or enforce any requirements" with respect to the dumping of materials "into ocean waters within the jurisdiction of the State" (i.e., usually out to the three-mile limit of the territorial seas); (3) changes to the site designation process under § 102(c), including a requirement that EPA develop, in conjunction with the Corps, a "site management plan" for each designated dredged material placement site, and update it at least every 10 years;¹¹⁰ (4) a prohibition on final designation of a site after January 1, 1995, unless a management plan has been developed for the site; (5) a prohibition on issuing a permit for dumping at a site after January 1, 1997, unless the site has received final designation; (6) a requirement that management plans for previously designated sites be completed no later than January 1, 1997; and (7) elimination of the preexisting practice under § 103(b) of easy and open-ended "selection" of dumping sites by the Corps¹¹¹ in the absence of EPA-designated sites.¹¹²

Other important provisions of WRDA 1992¹¹³ include:

. § 203, which authorizes the Corps to "accept contributions of cash, funds, materials and services" from entities other than the project sponsor to assist in carrying out "a water resources project for environmental protection and restoration or … recreation"¹¹⁴

. § 204, which authorizes the Corps to undertake "projects for the protection, restoration, or creation of aquatic and ecologically related habitats" where the "monetary and nonmonetary" benefits of the project justify its cost, and the project does not result in environmental degradation¹¹⁵

[27 ELR 10494]

. § 207, which amends § 145 of WRDA 1976 by authorizing the Corps to enter into agreements directly with political subdivisions (at the request of a state) to use dredged material for beach nourishment¹¹⁶

. § 216, which directed the Corps to "conduct a study on the need for changes in Federal law and policy with respect to dredged material disposal areas for the construction and maintenance of harbors and inland harbors by the [Corps]" (specifically, this study was to "evaluate the need for any changes in Federal and non-Federal cost sharing for such areas and harbor projects, including sources of funding")¹¹⁷; and

. § 327, which directed the Corps to "conduct a national study on information that is currently available on contaminated sediments of the surface waters of the United States" and to compile the resulting information "for the purpose of identifying the location and nature of contaminated sediments in the Nation."¹¹⁸

WRDA 1996

WRDA 1996¹¹⁹ made important modifications to the cost-sharing procedures established in WRDA 1986. Specifically, it subjected the costs of constructing "land-based and aquatic dredged material disposal facilities"—whether used to dispose of dredged material resulting from new-work dredging or from maintenance dredging—to the same cost-sharing formula previously established solely for federal dredging projects.¹²⁰

WRDA 1996 also gave the Secretary of the Army the authority toenter into various "partnering" arrangements with nonfederal interests to help provide needed dredged material disposal capacity. For example, the Secretary was authorized to use a dredged material disposal facility "designed, constructed, managed, or operated by a private entity"—as long as, "consistent with economic and environmental considerations, the facility is the least-cost alternative."¹²¹

Perhaps most significantly, Congress authorized the Secretary to enter into "public-private partnerships in the design, construction, management, or operation of dredged material disposal facilities" in connection with federal navigation projects.¹²² Where private funds are used in whole or in part to fund the project, the Secretary is authorized to reimburse the private entity through the payment of ongoing user fees "for placement of suitable dredged material at the facility."¹²³

Other noteworthy provisions of WRDA 1996 include:

. § 204(c)(2), which authorizes the Secretary to "undertake measures for restoration [and enhancement] of environmental quality," where construction or operation of a federal water resources project has "contributed to the degradation of the quality of the environment"¹²⁴

. § 207, which amends § 204 of WRDA 1992 to authorize the Secretary (with the consent of the nonfederal interest) to select a dredged material disposal method that is not the least-cost option, where the Secretary determines that the increased costs "are reasonable in relation to the environmental benefits, including the benefits to the aquatic environment… [27 ELR 10495] from the creation of wetlands and control of shoreline erosion"¹²⁵; and

. § 516, which authorizes the Secretary to enter into cooperation agreements with nonfederal interests or other entities "for the development of long-term management strategies for controlling sediments" at federal navigation projects.¹²⁶

State Regulatory Programs

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

Section 401 Water Quality Certification

Section 401(a)¹²⁷ of the FWPCA states that any applicant for a federal license or permit for any activity that may result in a discharge of pollutants to navigable waters must provide certification of compliance with the standards and limitations of the state having jurisdiction at the point of discharge.¹²⁸ Although the obvious application of this section is to permits issued under the authority of the FWPCA, it may also apply to ocean dumping permits issued under the MPRSA (at least for dredged material dumped within a state's territorial waters).¹²⁹

Under the FWPCA, states are authorized to establish water quality standards for waters within their jurisdiction.¹³⁰ The geographical reach of that jurisdiction depends on how each state defines the limits of its waters. At EPA's recommendation, many states are in the process of rewriting their water quality regulations to include wetlands in the definition of state waters and to establish different standards for wetlands and free-flowing waters. As the definitions of state waters become broader, so does the scope of the resource areas that must be considered in evaluating the compliance of activities contemplated by permits issued under the FWPCA and MPRSA.

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

Section 510¹³¹ of the FWPCA allows states to adopt water quality standards that are more stringent than those adopted by EPA.¹³² These two state powers—certification review and water quality standards promulgation—grant the states considerable power to control activities that otherwise would be in the domain of the federal government.

[27 ELR 10496]

More recent laws have shown that the federal-state relationship with respect to this issue continues to evolve. Under MPRSA § 102(a), no permit may be issued for the dumping of material that will violate "applicable [state] water quality standards."¹³³ Under WRDA 1992, states are given plenary authority to "adopt or enforce any requirement respecting dumping of materials into ocean waters within the jurisdiction of the State."¹³⁴ Although this is subject to certain limitations in the case of federal projects, WRDA 1992 is one indication that the states' jurisdictional status is still evolving.

Corps general regulatory policies also incorporate the requirement that the water quality of affected states be considered. They state that "applications for permits for activities which may adversely affect the quality of waters of the United States will be evaluated for compliance with applicable effluent limitations and water quality standards …."¹³⁵ In its ocean dumping regulations, EPA also requires that permit applications consider the potential impacts on applicable water quality standards.¹³⁶ This requirement is based on EPA's interpretation of its statutory mandate that ocean dumping permit application review must consider the impact of the proposed dumping on "human health and welfare, including economic, aesthetic, and recreational values."¹³⁷

In some instances, a state has refused without explanation to accept the Corps' (or a port's) proffered demonstration that a proposed dredged material discharge will not violate applicable water quality standards, declining to either grant or deny the requested water quality certification under FWPCA § 401. (Sometimes a state simply requests additional information, without stating why the existing submittal was considered insufficient.) Where a project may be politically unpopular, these techniques can be used by a state as devices for effectively vetoing the project without ever having to articulate any water quality rationale or other technical justification. An example of this was the withholding of water quality certification by New York State for a proposal to deposit dredged materials into excavated subaqeous pits, followed by capping with clean materials. Regardless of whether this was a case of a state arbitrarily or unjustifiably withholding certification or a matter of the Corps refusing to comply with a legitimate request for additional information, procedural disputes of this type are costly and inefficient. There need to be agreed-on procedures for demonstrating compliance with water quality standards; there needs to be a clearly specified, reasonable time limit for obtaining a "yes" or "no" decision; and certification denials need to have clearly articulated, technically supportable rationales related to water quality.

Coastal Zone Consistency Review

Section 307(c)¹³⁸ of the CZMA was established in 1972 to require, among other things, that federally conducted and regulated activities comply to the "maximum extent practicable" with states' federally approved coastal zone management plans. Any coastal sediments management activity regulated by the Corps or other federal agency must provide a state determination of consistency with the state's federally approved coastal zone plan. Section 307(c) applies to all coastal states and coastal Great Lakes states. Section 307(c) has evolved into a program that regulates activities through the consistency determination process. This NOAA-administered program can delay sediment management activities.

Under this program, the federal agency or applicant provides a determination of consistency to the state coastal zone management agency. The state agency either concurs or objects. In the case of objections, the state must tell the regulated entity what must be done to bring the project into consistency.¹³⁹

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

Coastal zone plans cover very broad jurisdictional boundaries. The Mississippi coastal zone encompasses the three coastal counties, regardless of elevation, whereas Alabama uses a contour 15 feet above mean sea level. Florida has determined that the entire state is in the coastal zone.

The federal coastal zone consistency process does not encourage conclusion of review by the state. Thus, the opportunity for delay exists when a state might not support a federal project as part of federally regulated activity. This is illustrated in the proposed Texas coastal plan that directs beneficial use of all dredged material. Endless negotiations by the Corps will take place while attempting to obtain congressional funding to comply with this provision. Managing contaminated sediments [27 ELR 10497] while attempting to comply with state coastal zone plans can be perilous, to say the least.

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

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

Other State Jurisdictional Issues

Another area in which states exercise local authority over federal agency action and permitting decisions is where an activity causes a seaward extension of the regular low tide mark. The division of ownership of underwater lands was resolved generally by the Submerged Lands Act,¹⁴⁰ which was enacted in 1953. The Submerged Lands Act provided that, barring other particular claims, states had the rights to submerged lands up to three miles from the regular low tide mark, and the federal government held title to submerged lands beyond that point.¹⁴¹

In 1993, however, the U.S. Supreme Court considered the situation in which a state navigation project would cause an accretion of the coastline.¹⁴² Under the terms of the Submerged Lands Act, such an extension of the coastline would entail a concomitant extension of the state's title to submerged land. Before issuing a permit to conduct the necessary dredging and filling work, the Corps submitted the permit application to the DOI, which objected to the project and recommended that the Corps require the state to waive its right to an extension of its submerged lands.¹⁴³ The Supreme Court upheld this requirement as a condition to the issuance of the permit, and generally held that in similar situations it was necessary for the federal government to protect its property interests.¹⁴⁴

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

Another area in which the Corps has relinquished some degree of its authority, and in which its actions and options regarding the management of contaminated marine sediments may be influenced, concerns the applicability of local zoning regulations. The Corps' general regulatory policies provide that the primary responsibility for determining zoning and other land use matters rests with the state and local governments and that the Corps generally will accept such decisions. The Corps maintains the authority, however, to ignore local decisions when it finds issues of "overriding national importance," which may include "national security, navigation, national economic development, water quality, preservation of special aquatic areas, including wetlands, with significant interstate importance, and national energy needs."¹⁴⁵

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

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

Ownership issues may become important where sediments are used to extend shorelines or convert submerged lands to uplands. One of the most viable beneficial uses applicable to contaminated marine sediments is extending the shoreline as part of near-shore CDFs¹⁴⁶ or constructing or restoring offshore islands.¹⁴⁷ Such use allows contaminated sediments to be isolated and contained by placement in the interior of the diked area, surrounded and covered by progressively cleaner materials, while still taking advantage of their physical bulk. The legal issue of who owns the real estate thereby created can be significant, particularly in land-scarce urban areas, where such real estate can be very valuable. The legal complexities of this issue are illustrated by the dispute, now pending in the Supreme Court, between the states of New York and New Jersey over who owns Ellis Island in New York Harbor.¹⁴⁸ Although the original island was in New York waters, it was expanded by the use of fill, so that a large part of the island is now on the New Jersey side of the line separating the two states' waters. Where dredged material is used to construct or expand an island, a case may become even more complex, depending on who owned the dredged material used for construction.

*4*TABLE 1: Interrelationship of Sediment

*4*Regulatory Authorities in Selected Scenarios

Scenario A. FWPCA B. MPRSA/LDC C. RHA

1. Excavation Section 404: Not applicable Section 10:

of contaminated Permit required Covers

sediment hot for excavation dredging and

spots from a in § 404 waters excavation

waterway (including wetlands) in navigation

if not part channels

of normal regardless of

dredging purpose (i.e.,

operations a navigational

dredging vs.

environmental

cleanup)

2. Use of Section 404: Section 103: Section 10:

sediments to Permit required Permit required Permit required

construct berms, for discharges for disposition for obstructions

containment of dredged or of any material to navigation

facilities, or fill materials in in ocean waters and changes

islands in § 404 waters b (seaward of the in the course,

navigable or baseline); no condition, or

ocean waters permit required capacity of

when material is navigable waters

placed to construct

an artificial

island

when otherwise

regulated by

federal

or state law

3. Ocean Section 401: Section 103: See 2.C

dumping of State water Permit required

dredged material quality from the Corps

certification for the

could be transportation and

required for dumping of

dumping in this material

or near state

territorial waters,

when the

dumping may

cause state

water quality

standards in

such waters to

be exceeded e

4. Disposal of Section 404: Section 103: Section 10:

contaminated Permit required Permit required Permit may be

sediments if in § 404 if discharged required if

followed by waters (or into ocean intentional

clean capping involving a waters g capping results

return flow in mounding

to such waters) f of sediments

that obstructs

navigation or

alters the

waterway's

condition

5. Land Runoff of Not applicable Not applicable

disposal of return flow into

contaminated § 404 waters

sediments may require a

permit under § 404

or § 402 h; a § 404

permit would also

be needed if

the disposal site

includes a regu-

lated wetland

6. Natural Not applicable Not applicable Not applicable

restoration

*4*TABLE 1: Interrelationship of Sediment Regulatory

*4*Authorities in Selected Scenarios

Scenario D. CERCLA E. RCRA F. State approvals

1. Excavation Could apply If part of State CZMA

of contaminated when part of a corrective consistency

sediment hot the cleanup action or determination

spots from a or restoration RCRA could be

waterway is of an facility required if

underwater closure conducted in

Superfund state coastal

site zone; state

certification

under FWPCA

§ 401 could

also be required

for activities

requiring an

FWPCA permit

(see 1.A)

2. Use of Not applicable c Not applicable d See 1.F

sediments to

construct berms,

containment

facilities, or

islands in

navigable or

ocean waters

3. Ocean Not applicable Not applicable Section 401:

dumping of (but see (but see State certification

dredged material footnote c) footnote d— could be

at least for required if

material dumped discharged in

beyond the the territorial

three-mile limit seas; CZMA

of the consistency

territorial sea) determination

could be

required for

loading and

transport

facilities located

in a state's

coastal zone

4. Disposal of If contaminants If sediments are See 3.F

contaminated are subsequently TC toxic (exceed

sediments released and RCRA TCLP

followed by cause an environ- limits), the

clean capping mental hazard, discharge occurs

cleanup could be in inland or

required, unless near-shore waters

specifically (out to three

permitted under miles)—especially

4.A or 4.B; wetlands—and

capping may or the disposal is

may not be not permitted

deemed a under 4.A or 4.B,

preferred remedy a RCRA permit

under Superfund could be required

5. Land If land disposal The Corps has If 5.A applies,

disposal of subsequently asserted since § 401 certification

contaminated results in uncon- 1988 that RCRA may be required;

sediments trolled contam- does not apply if located in

inant releases to any land a state's coastal

(especially if disposal of zone, a CZMA con-

they cause an dredged material, sistency deter-

imminent hazard), but EPA does mination may

cleanup or not agree; a be required

natural damage pending RCRA (see 1.F)

restoration could rule would exempt

be required under from the possi-

CERCLA—unless bility of RCRA

the specific regulation for on-

contaminants were land dredged

authorized under material contain-

a federal permit ment facilities that

have § 404-regu-

lated return flow

or that impact regu-

lated wetlands

(see also 4.E)

6. Natural Studies could be If site is con- When a state has

restoration required under sidered a RCRA assumed the RCRA

Superfund (both site (see 4.E), program under

remedial action natural restora- 6.E situation;

and damage re- tion may or may otherwise, not

storation provi- not be considered applicable

sions), leading adequate correc-

to selection of tive action

the natural

restoration

alternative

*4*a This became a regulatory requirement under the excavation rule adopted

*4*by the Corps and EPA in the summer of 1993. A § 404 permit would

*4*thus be required, covering the incidental fallback of sediment, when

*4*sediments were excavated for environmental cleanup or a source of fill

*4*material. The excavation rule was subsequently invalidated by the U.S.

*4*District Court for the District of Columbia in American Mining Congress

*4*v. Corps of Engineers, 951 F. Supp. 267, 27 ELR 20589 (D.D.C. 1997).

*4*However, this decision has been stayed pending appeal.

*4*b Although there may be some debate on this point, sediments dredged from

*4*a waterway bottom are dredged materials even if they are used as

*4*fill to convert an aquatic area to dry land. The FWPCA regulates dredged

*4*material discharged in inland waters out to the coastal baseline. Beyond

*4*the baseline, the MPRSA takes over. Fill material that does not come

*4*from a waterway bottom is not regulated under the MPRSA (unless it

*4*qualifies as the disposal of a waste) but requires a § 404 permit when

*4*deposited out to the three-mile limit of the territorial seas.

*4*c Unless the material is contaminated and results in an uncontrolled

*4*release requiring remediation that is not specifically addressed in a federal

*4*permit (and thereby subject to the federally permitted release exemption

*4*from CERCLA).

*4*d If the facility is considered to contain hazardous wastes or to be a

*4*hazardous waste treatment, storage, or disposal facility, EPA could require

*4*a RCRA permit. However, pending revisions to RCRA regulations

*4*would create a dredged material exclusion for sediments that are otherwise

*4*regulated by permit under the FWPCA or the MPRSA. This would include

*4*confined disposal facilities with a return flow to U.S.-regulated waters,

*4*requiring an FWPCA § 404 permit.

*4*e See Title V of WRDA 1992 and discussion in the text.

*4*f A permit will be issued or withheld, depending on the extent of the

*4*biological, physical, and chemical impacts to the aquatic environment. The

*4*mitigating effects of capping can be considered.

*4*g A permit will be issued or withheld, depending on the results of

*4*bioassay and bioaccumulation tests and other evaluations required under the

*4*ocean dumping criteria. If the material is unsuitable for ocean dumping,

*4*it is unclear legally whether after-the-fact capping can be used to render

*4*permissible an otherwise prohibited activity. Parties to the London

*4*Convention of 1972 have signified their intent under the convention that

*4*management practices, including capping, that reduce impacts on the marine

*4*environment can be taken into account in deciding whether materials

*4*may be disposed of at sea. EPA is considering amendments to the ocean

*4*dumping criteria to clarify that this is also the case under U.S. law.

*4*h A § 402 effluent discharge permit could be required if the land disposal

*4*site includes treatment of runoff or wastewater and the effluent is

*4*discharged from a point source (e.g., an outfall pipe).

[27 ELR 10500]

Gaps, Overlaps, and Uncertainties

Table 1 indicates how a few federal statutes, and potential state approval requirements, may apply to six sediment excavation and management scenarios. This table illustrates the complexity of the regulatory framework, showing that multiple legal authorities may apply simultaneously in a given situation (e.g., Scenario 4), whereas in other cases (e.g., Scenario 6) there is the possibility that no statute applies. Table 1 also contains many footnotes, reflecting the confusion and uncertainty over the applicability of certain statutes in particular situations. Readers confronting such situations are encouraged to consult knowledgeable environmental counsel. As can be seen, an RHA § 10 permit would be required any time excavation or dredging is carried out in navigable waters (e.g., Scenarios 1 and 5)¹⁴⁹ and could be required whenever construction or capping is carried out in navigable waters, including coastal ocean waters (e.g., Scenarios 2 and 4).¹⁵⁰

In addition, by virtue of the "excavation rule" promulgated in August 1993,¹⁵¹ any excavation, mechanized land clearing, or channelization work in waters of the United States presumptively requires an FWPCA § 404 permit (e.g., Scenarios 1 and 5). The only exception was for navigation dredging in traditionally navigable waters.¹⁵² The excavation of contaminated sediment hot spots for environmental reasons would not qualify for this exception.¹⁵³

A state water quality certification under FWPCA § 401 is not required for dredging except when covered by the excavation rule (see Scenario 1.A), but it would be required whenever a discharge would have the potential to adversely affect the quality of waters of the United States subject to state jurisdiction (i.e., out to the three-mile limit of the territorial seas). Any activity (including indirect staging, transporting, and handling) in or affecting a state's "coastal zone" would be subject to a determination of consistency with a state's federally approved coastal zone management plan (see Scenarios 1, 3, and 5).

Dredged or excavated uncontaminated sediments can be dumped only at officially sanctioned, formally designated ocean dump sites—and then, only subject to a Corps § 103 permit under the MPRSA. Contaminated dredged materials that fail prescribed bioassay and bioaccumulation tests under the ocean dumping criteria and Green Book guidance (or that are otherwise deemed to violate prohibitions under the London Convention of 1972 (London Dumping Convention or LDC)¹⁵⁴ against the ocean dumping of "wastes and other matter" containing "Annex I" constituents as "other than trace contaminants") could be barred from ocean dumping (or could be subject to stringent management controls, including capping)¹⁵⁵ (see Scenarios 2, 3, and 4). Under WRDA 1992 Title V (which amended the MPRSA), in addition to enforcing state water quality standards (through the § 401 certification process), states now have the authority to establish their own restrictions on ocean dumping in waters subject to state jurisdiction.

An FWPCA § 404 permit is required from the Corps—again, subject to state water quality certification—when excavated sediments are to be placed (or capped) in inland waters (i.e., landward of the coastal baseline) or wetlands (see Scenarios 2 and 4). If dredged sediments from the seabed or inland waters were discharged¹⁵⁶ intentionally by pipeline into ocean waters out to three miles, the sediments likewise would be subject to the FWPCA (i.e., a § 404 permit—and possibly an ocean discharge permit under § 403) rather than to MPRSA requirements. The same (i.e., the need for a § 404 permit) holds for "runoff or overflow [into § 404 waters] from a contained land or water [dredged material] disposal area, " which Corps regulations¹⁵⁷ define as included in the definition of "discharge of dredged material" (see Scenario 5.A).

If contaminated sediments are excavated for environmental cleanup purposes, any disposal or management action (including capping) could be subject to the remedial cleanup requirements of CERCLA—if there is an uncontrolled release triggering the need for such cleanup (see Scenarios 1.D, 4.D, and 5.D). Indeed, as part of the development of a remedial action plan, even natural restoration (see Scenario 6.D) could require regulatory review and approval.

Moreover, if contaminated sediments are placed on land or at a coastal disposal site or containment facility, RCRA could be deemed to apply—if the sediments display hazardous waste "characteristics."¹⁵⁸ The Corps long has [27 ELR 10501] taken the position that dredged material is exempt from RCRA because it is not "solid waste."¹⁵⁹ EPA's view is that it can still be subject to RCRA (under the "contained-in-rule"¹⁶⁰), when it becomes contaminated with hazardous wastes, pollutants, or contaminants. Under the hazardous waste identification (media) rule under development by EPA, consideration is being given to a "dredged material exclusion," which would exclude dredged materials (but not "fill material") from the possibility of RCRA regulation if they are being regulated under an FWPCA or MPRSA permit.¹⁶¹ This would include dredged material placed in an on-land CDF with a regulated "return flow" but not dredged material in a totally contained CDF (see Scenarios 4.E and 5.E).

Finally, in cases where in-place contaminated sediments cause or contribute to injury or the loss of "natural resources," including coastal biota, parties responsible for the contaminant releases can be sued by federal, state, or tribal "trustees" for natural resource damages. Recovered money is used not only to pay for cleanup of the affected sediments, but also to fully restore, rehabilitate, or provide the equivalent of the injured resources. Such monetary damages can be substantial because they include compensation for any interim "lost use" of the injured resources and even for the lost "contingent value" of knowing that the resource is there in an unimpaired condition (see Scenarios 1.D and 5.D).

Gaps in Coverage

The preceding discussion demonstrates that there are a number of overlaps in regulatory coverage of sediments that are managed because of requirements associated with either navigation dredging or environmental cleanup. It also provides a flavor of the complexity associated with a hodgepodge of laws and regulations that were never primarily intended to address sediments. And it provides an indication of some of the uncertainties related to the applicability of particular regulatory requirements under certain circumstances.

There are also gaps in coverage. Consider the dilemma of a coastal port that must dredge its harbor and navigation channels periodically. These waters are subject to contamination from a multiplicity of point and nonpoint sources, as well as from spills, both in the immediate port area and throughout wide areas of tributary watersheds. In most cases, the vast majority of contaminants that come to rest in bottom sediments are derived from sources located many miles upstream. Yet the port bears the brunt of the impact—in terms of increased placement costs for contaminated sediments and in terms of lengthy delays in securing the necessary regulatory permits and approvals—if they can be secured at all. By contrast, the responsible upstream sources are seldom held accountable. Occasionally, they may have their discharge permit limits tightened. Infrequently, they may be subject to cleanup requirements or restoration orders under CERCLA. But there is no systematic mechanism in place for ensuring that upstream discharge sources take into account downstream impacts before being allowed to discharge¹⁶² or, failing this, that responsible upstream sources share in the incremental costs they impose on downstream users, such as ports.

Another illustration of legal uncertainties relates to the placement of contaminated sediments within a diked containment area for the purpose of constructing an offshore containment island. The status of this material, and even the legality of its placement, depends on whether it is deposited more than three miles offshore (see Table 1), whether the "purpose" or "primary purpose" of placement is considered disposal or island creation, and/or whether an exclusion under the ocean dumping criteria applies (see Scenario 2.B).

The MPRSA defines "dumping" to exclude

the construction of any fixed structure or artificial island [and] the intentional placement of any device in ocean waters or on or in the submerged land beneath such waters, for a purpose other than disposal, when such construction or such placement is otherwise regulated by Federal or State law or occurs pursuant to an authorized Federal or State program ….¹⁶³

Clearly, if clean sand of land origin were deposited to construct a containment dike within which an island would be created, the placement of this "fill material" would be exempt from the MPRSA—both as "fill" (if carried out within three miles, where it would be regulated under FWPCA § 404—see Scenario 2.A) and under the MPRSA's exclusion for construction of a fixed structure. For contaminated sediments (i.e., of aquatic origin), however, it would be harder to argue both that the material was not MPRSA-regulated "dredged material" and that the material was being deposited "for a purpose other than disposal." At best, one could say that, in addition to disposal, one purpose is the creation of an offshore island. It is not clear whether this is sufficient. Also, if the material were deposited in ocean waters beyond the three-mile limit, where no other federal or state permit would be required, it is unclear whether it could qualify under the MPRSA's "construction" exception, which requires regulation under other federal or state law.

Ultimately, if the sediment contaminants were isolated sufficiently—i.e., by being encapsulated within a containment dike and surrounded by large volumes of uncontaminated sediments—from the surrounding marine environment so as to be rendered "non-toxic to marine life and non-bioaccumulative," then the material might be viewed, despite its intrinsic toxicity, as present as "other than trace contaminants" under the exception found in the ocean [27 ELR 10502] dumping criteria.¹⁶⁴ Alternatively, one might argue that confined disposal on the seabed behind containment dikes is "seabed emplacement" and not "disposal in ocean waters" and that it is appropriate to treat it as similar to land containment in a CDF.¹⁶⁵

Although the use of contaminated sediments to construct offshore containment islands probably will become more common, in the New York Bight and elsewhere, as open-water and land options become more limited, resolution of this legal issue may have little practical significance because a project of this magnitude almost certainly would require separate congressional authorization. And Congress is free to specify what permitting and environmental analysis procedures it wishes to have applied.

Potential Regulatory Reforms

Legislative and regulatory changes could avoid or minimize gaps, overlaps, uncertainties, and inefficiencies. Amendments to the FWPCA could distinguish between the openwater disposal of dredged material and the discharge of fill material into wetlands and other "special aquatic sites." Much of the complexity that has developed over the years in the application of § 404 is the result of attempts to control adverse effects on wetlands caused by development. A new FWPCA section dealing with open-water discharges of dredged material would allow the separation of wetlands development and protection issues from the very different issues associated with the construction and maintenance of efficient navigation channels.

The open-water disposal of dredged material resulting from navigation dredging of public ports and waterways could be subject to a unified set of statutory and regulatory requirements that do not differentiate (except where a specific technical justification can be provided) among inland, estuarine, and ocean waters. EPA and the Corps have gone part of the way toward accomplishing this by developing an Inland Testing Manual (Gold Book),¹⁶⁶ which parallels the Green Book in setting forth a tiered-testing framework using freshwater and estuarine species.

The decisionmaking framework for the management of contaminated sediments could be simplified and made more efficient if the full range of placement and management options were required to be considered, based on environmental acceptability (risk), technological feasibility, and economic viability. From the standpoint of environmental acceptability and risk, a single, unified tiered-testing procedure needs to be established and used to define the contamination status and environmental and health hazard potential of sediments excavated from navigable or ocean waters. This procedure could address the environmental risks associated with freshwater, marine, and land placement, containment, or the beneficial use of such sediments.¹⁶⁷

The screening criteria and regulatory limits associated with this procedure could be treated as ARARs under CERCLA and could preempt (by statute) otherwise applicable federal regulatory requirements under RCRA and other pollution control statutes. (This procedure need not, however, displace FWPCA § 404 wetland procedures or other requirements directed primarily at preventing direct physical damage or disturbance, rather than pollution, impacts.)

In-place or off-site capping of contaminated sediments, where determined by EPA or the Corps to be an environmentally acceptable, economically viable, and technologically preferred alternative, could be deemed to be a form of "treatment [that] permanently and significantly reduces the … toxicity or mobility" of associated pollutants and contaminants, within the meaning of CERCLA § 121(b).¹⁶⁸

Because there can be conflicts between the state and federal requirements that are difficult to resolve, EPA could be given the statutory authority to reject as scientifically unjustified more stringent state requirements—unless the state is prepared to provide an alternative site or assume the incremental costs of additional placement or use restrictions. This change might foster timely decisionmaking.

WRDA 1996 partially repealed the local cooperation requirement (e.g., under WRDA 1986 §§ 101 and 102¹⁶⁹)—which requires local sponsors of federal navigation projects to bear full responsibility for the construction, operation, and maintenance of necessary dredged material disposal sites—by requiring federal cost sharing for on-land dredged material placement sites including CDFs. This change was needed to avoid the strong economic incentive favoring the open-water disposal of (even highly contaminated) dredged materials (i.e., at "free" disposal sites) in preference to containment on land (i.e., at sites that must be paid for, if not fully, at least in part by the local sponsors). WRDA 1996 did not, however, require full internalization of operation-and-maintenance-related disposal costs as part of the project's overall cost/benefit analysis. WRDA 1996, in fact, accomplished this by requiring federal cost sharing for on-land dredged material placement sites, including CDFs.

The ownership status of newly created offshore containment islands, near-shore containment areas, and other new real estate created with dredged material needs to be clarified—that is, ports need to acquire an ownership interest commensurate with their degree of cost sharing or funding of the site and their contribution of dredged material to construction of the new real estate.

The decisionmaking framework needs to encourage and promote appropriate beneficial uses of dredged material and contaminated sediments.¹⁷⁰ For example, contaminated sediments could be used safely and beneficially in the interior of a diked containment facility, where they are surrounded and capped by uncontaminated sediments.

Legislative initiatives to require watershed planning and management initiatives to control water pollution sources need to take into consideration ports' interests in minimizing upstream point and nonpoint source contributions to downstream contamination and need to require explicit consideration of downstream impacts. They also need to require watershed-specific inventories (including identification of [27 ELR 10503] sources) of upstream pollutant contributions to problematic downstream sediment contamination in port areas. Federal and state regulatory agencies need to be authorized and required specifically to tighten upstream discharge permit conditions and restrictions to reduce downstream port impacts. Finally, consideration needs to be given to authorizing EPA, where identifiable upstream sources contribute "disproportionately" to downstream sediment contamination, to allocate and recover an appropriate share of cleanup or disposal costs from such discharge sources.

FWPCA § 303 could be amended to require states and EPA, in setting TMDLs for waterway segments and in developing load allocations (WLAs and LAs) for point and nonpoint sources, to consider impacts on downstream sediment quality—where such impacts may impair downstream water uses or interfere with or complicate navigational or environmental dredging. Although it is probably not possible for most sediment contaminants to quantitatively link discharges from individual point and nonpoint sources to site-specific buildups in downstream sediments, there is no reason that presumptive sources of problematic sediment contaminants could not be inventoried and prioritized so that regulators could use the TMDL approach to progressively reduce contamination from the most important sources.

Conclusion

The efficient and effective management of contaminated sediments, whether associated with navigation dredging or environmental cleanup, is hampered by both too much and too little legislative and regulatory attention. On the one hand, few aspects of sediment handling, from initial excavation to ultimate disposal, are unregulated. On the other hand, regulatory coverage is haphazard and bears little relationship to underlying environmental or human health hazards and little resemblance to an efficient and coherent process that is predictable or reliable.

As environmental concerns make economically critical navigation dredging more and more difficult, and as the identification, prioritization, and remediation of contaminated sediment sites accelerate, these regulatory limitations will become more evident and constraining. Appropriate legislative and regulatory initiatives could do much to avoid these problems and facilitate the efficient and effective management of all sediments, especially contaminated sediments.

1. NATIONAL RESEARCH COUNCIL, CONTAMINATED MARINE SEDIMENTS: ASSESSMENT AND REMEDIATION (1989) [hereinafter 1989 NATIONAL RESEARCH COUNCIL REPORT]. Effects on aquatic life are associated with direct acute and chronic toxicity. Effects on human health are indirect, tending to be associated with consumption of fish or shellfish that have bioaccumulated toxic substances as a result of their exposure to contaminated sediments.

2. OFFICE OF SCIENCE & TECHNOLOGY, U.S. EPA, THE NATIONAL SEDIMENT QUALITY SURVEY: A REPORT TO CONGRESS ON THE EXTENT AND SEVERITY OF SEDIMENT CONTAMINATION IN SURFACE WATERS OF THE UNITED STATES xvii, 5-2 (1996) (EPA-823-D-96-002).

3. Id.

4. "Dredgers" include ports and other waterfront facility owners who must excavate sediments in order to maintain navigation channels and access to their facilities.

5. "Discharge sources" include owners and operators of industrial facilities and other sources, such as landfills, especially those located along major waterways, whose operational (or accidental) discharges cause or contribute to sediment contamination.

6. Superfund is known more formally as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

7. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

8. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

9. RCRA may apply to land placement of sediments, especially if there is no "return flow" to waters of the United States and toxicity characteristic leaching procedure (TCLP) criteria are exceeded. FWPCA § 404 applies if there is a "return flow" to FWPCA waters. No federal law may apply if the material is contained entirely and TCLP limits are not exceeded.

10. 33 U.S.C. §§ 1401-1445.

11. See supra note 6.

12. Restoration could be required in the context of a spill under FWPCA § 311.33 U.S.C. § 1321, ELR STAT. FWPCA § 311.

13. This patchwork of legislation evolved over several decades as a byproduct of the efforts of numerous congressional committees and subcommittees with diverse jurisdictions. In each case, the scope and approach of each statute relate more closely to the jurisdictional authority of the sponsoring congressional committee than to any systematic effort to regulate contaminated sediments comprehensively—or even coherently.

14. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

15. Id. § 1341, ELR STAT. FWPCA § 401.

16. 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA §§ 302-318.

17. For example, provisions of the biennial WRDAs that relate to beneficial uses of dredged material are discussed because beneficial uses are among the management options available for contaminated sediments, despite their more common application in connection with clean sediments. Similarly, this Article describes the navigation dredging cost-sharing provisions of these acts, even though the provisions do not typically differentiate between contaminated and uncontaminated dredged materials.

18. For example, the discussion of applicable FWPCA authorities is not limited solely to § 404, which regulates the discharge of dredge and fill material; it also briefly catalogues the FWPCA provisions that control point source discharges (§ 402), toxics and spills (§§ 307 and 311), and state water quality certification authority (§ 401).

19. This Article is not, however, intended to be an all-inclusive compilation of environmental laws that may affect a proposal to excavate or dispose of contaminated sediments. Thus, there is only a passing reference to the National Environmental Policy Act (NEPA), which applies to all major federal actions that may have a significant environmental impact. And there is no reference at all to the Endangered Species Act, which can play an important role when sediment handling might disturb imperiled species or their habitat. Although it can be argued that the line drawn is artificial, the authors consider general environmental statutes of this type to be one step removed from sediments and sediment management and therefore not relevant in a survey of authorities governing contaminated sediments.

20. Technically, the statute is the Rivers and Harbors Appropriation Act of 1899. Section 10 states: "It shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of … any navigable water of the United States, unless the work has been recommended by the [U.S. Army Corps of Engineers]." 33 U.S.C. § 403.

21. Id.

22. RHA § 10 is not an environmental provision; its original purpose was simply to protect the navigable capacity of waterways. However, when an activity for which a permit is required may "significantly affect the quality of the human environment," an environmental impact statement (EIS) may be required under NEPA, which requires the complete assessment and full disclosure of the environmental impacts of, and alternatives to, proposed major federal actions. A full EIS is not required in every instance. The process begins with an environmental assessment (EA). If the EA indicates that there is no significant environmental impact, then the lead agency can make a finding of no significant impact, which obviates the need for an EIS. Preparation of a draft and final EIS, and associated public and interagency review and comment, can be quite time-consuming—averaging 18 months and often taking several years. See MARINE BOARD, NATIONAL RESEARCH COUNCIL, CONTAMINATED SEDIMENTS IN PORTS AND WATERWAYS: CLEANUP STRATEGIES AND TECHNOLOGIES 5, 26 (1977) [hereinafter 1997 NATIONAL RESEARCH COUNCIL REPORT].

23. 33 U.S.C. §§ 1401-1445.

24. Although it might appear that both the FWPCA and the MPRSA apply to dredged material discharged into the territorial sea, Congress specified that the MPRSA was to preempt other authorities in the event of an overlap of jurisdiction. It should be noted that because the MPRSA does not address the placement of "fill material," fill discharges into the territorial sea would be regulated under FWPCA § 404.

25. 33 U.S.C. § 1412(a).

26. U.S. EPA & U.S. ARMY CORPS OF ENG'RS, EVALUATION OF DREDGED MATERIAL PROPOSED FOR OCEAN DISPOSAL: TESTING MANUAL (1991) (EPA-503/8-91/001 (EPA Office of Water, WH-556F)) [hereinafter GREEN BOOK]. The latest version of the GREEN BOOK was published in February 1991.

27. Because of controversy associated with EPA proposals in 1996 to revise the Ocean Dumping Criteria, the Administrator of EPA, the Secretary of Transportation (the agency housing the Maritime Administration), and the Secretary of the Army (the agency housing the Corps) made the commitment in a letter to certain members of Congress in July 1996 that EPA would "invest at least nine months in a process for all affected groups—industry, labor, and environmental groups—to help the Agency review the ocean disposal testing requirements [i.e., GREEN BOOK procedures] and ensure that any further revision reflects both sound policy and sound science." See, e.g., Letter from Carol M. Browner, EPA Administrator, Fredrico F. Pena, Secretary of Transportation, and Togo D. West Jr., Secretary of the Army, to the Honorable Frank Pallone (July 24, 1996). EPA was looking to convene a committee under the Federal Advisory Committee Act to carry out this "nine-month review."

28. U.S. EPA & U.S. ARMY CORPS OF ENG'RS, EVALUATION OF DREDGED MATERIAL PROPOSED FOR DISCHARGE IN WATERS OF THE U.S.—TESTING MANUAL (draft 1994) (EPA-823-B-94-002).

29. 40 C.F.R. §§ 225-228 (1994).

30. There continues to be some debate over legal issues concerning whether there are any circumstances under which dredged material that "fails" the bioassay and bioaccumulation tests can be approved for ocean dumping—even subject to tight management restrictions or under conditions (e.g., placed within geotextile bags or covered with a thick cap of uncontaminated sand or clay) designed to ensure the isolation and containment of associated contaminants. These issues arise because of an exception in the ocean dumping criteria allowing an applicant to demonstrate that constituents, although present as other than trace contaminants (and, therefore, normally banned from ocean dumping), are: (1) "present … only as compounds or forms … non-toxic to marine life and non-bioaccumulative in the marine environment upon disposal and thereafter," or (2) "present … only as chemical compounds or forms which, at the time of dumping and thereafter, will be rapidly rendered nontoxic to marine life and non-bioaccumulative in the marine environment by chemical or biological degradation in the sea…." 40 C.F.R. § 227.6(f) (1996). A federal district court held that neither part of this exclusion would allow post-disposal "capping" of dioxin-contaminated sediments to overcome bioassay results showing toxicity in excess of "trace contaminant" levels. Clean Ocean Action v. York, 861 F. Supp. 1203, 25 ELR 20664 (D.N.J. 1994), aff'd in part, rev'd in part, 57 F.3d 328, 25 ELR 21236 (3d Cir. 1995). On the other hand, the court was (unaccountably) willing to consider the effects of capping in evaluating the results of 40 C.F.R. § 227.6(c) toxicity testing. The court also held that even when dredged material is too contaminated to be dumped without capping, the mere fact that there is a loss of 2 to 5 percent of the contaminated sediment in the water column during dumping (i.e., en route to the bottom) is not a per se violation of the MPRSA. (If the escaping material were unlawful to dump because it can never be capped, no sediment requiring capping could ever be dumped.)

31. 61 Fed. Reg. 18849 (Apr. 29, 1996).

32. 53 Fed. Reg. 14903, 14910, 14913 (Apr. 26, 1988).

33. The percentage of the total dredged material that fails the biological tests has increased somewhat in recent years under revised test procedures, which increased the duration of test exposures and mandated the use of more sensitive test organisms. Telephone conversation with Dr. Robert Engler, U.S. Army Corps of Eng'rs, Waterways Experiment Station, Vicksburg, Mississippi (Aug. 6, 1997); see also GREEN BOOK, supra note 26, pt. II, sec. 6.0.

34. Sites are placed on the NPL when they score 28.5 or higher on EPA's "hazard ranking system." The hazard ranking system is a model that serves as EPA's primary tool for placing sites on the NPL. Hazard Ranking System, 40 C.F.R. pt. 300, app. A (1996); see also id. § 300.425(c)(1). The hazard ranking system was amended by Congress in 1986 to require, for the first time, consideration as a distinct exposure pathway of "the damage to natural resources which may affect the human food chain." SARA, Pub. L. No. 99-499, § 105, 100 Stat. 1613, 1625 (1986). Revisions to the hazard ranking system now require consideration of both the water column and contaminated sediments and provide, for the first time, for the placement of a site on the NPL based on environmental contamination as well as human health impacts. Hazard Ranking System, supra, §§ 2.1, 4.1.3 (for the surface water migration pathway, three "threats" are evaluated, including "human food chain"; food chain threats include consideration of persistence and bioaccumulation potential of sediment contaminants).

35. Sites are also removed from the inventory. In 1995, approximately 28,000 sites (classified as "no further remedial action planned") were dropped from the CERCLIS inventory based on preliminary assessments that determined that further remedial action at the federal level was not required.

36. U.S. EPA, CLEANING UP THE NATION'S WASTE SITES: MARKETS AND TECHNOLOGY TRENDS 16 (Ex. 2-8) (1993) (EPA 542-R-92-012, Solid Waste and Emergency Response, OS-11OW).

37. See supra note 34.

38. Supra note 36, at 37 (Ex. 3-9).

39. 40 C.F.R. § 300.430(d) (1994).

40. E.R. Long & L.G. Morgan, The Potential for Biological Effects of Sediment Sorbed Contaminants Tested in the National Status and Trends Program (1991) (NOAA technical memorandum NOS OMA 52).

41. Corrective action levels for soils under RCRA could also possibly be viewed as cleanup standards in appropriate cases. It must be kept in mind, however, that contaminants in dry upland soils and contaminants in underwater aquatic sediments have significantly different physical and chemical properties. Thus, regulatory standards established for soils do not have any applicability to sediments.

42. 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b).

43. See, e.g., 1997 NATIONAL RESEARCH COUNCIL REPORT, supra note 22, ch. 5.

44. 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b).

45. Id. § 9601(16), ELR STAT. CERCLA § 101(16).

46. 43 C.F.R. § 11.62(b)(iv), (v) (1996).

47. 42 U.S.C. § 9607(a)(4)(C), ELR STAT. CERCLA § 107(a)(4)(C).

48. Id. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1).

49. Natural Resources Damage Assessments, Final Rule, 59 Fed. Reg. 14262 (Mar. 25, 1994). These regulations were challenged by numerous industry groups in February 1995. Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 26 ELR 21489 (D.C. Cir. 1996).

50. In the case of natural resource damage claims under Superfund, the statute of limitations is set at three years from the date of discovery of the resource injury (or the responsible hazardous substance release) or from the date of final promulgation of damage assessment rules, whichever comes later. 42 U.S.C. § 9612(d)(2), ELR STAT. CERCLA § 112(d)(2).

51. CERCLA requires damage claims to be brought within three years of the later of the following: (a) the date of discovery of the loss and its connection with the release in question; and (b) the date on which damage assessment regulations are promulgated. 42 U.S.C. § 9613(g)(1), ELR STAT. CERCLA § 113(g)(1). Two U.S. Courts of Appeals have held that the date applicable to the second prong was March 20, 1987. California v. Montrose Chem. Corp. of Cal., 104 F.3d 1507, 1514, 27 ELR 20508, 20511 (9th Cir. 1997); Kennecott Utah Copper Corp., 88 F.3d at 1213, 26 ELR at 21497. The Interior Department's efforts, in the 1994 revisions to its Part B regulations, to defer the "promulgation" date trigger until further rulemaking had been completed, were roundly rejected. 43 C.F.R. § 11.91(e) (1995). This means that governmental natural resource trustees must now initiate damage claims within three years of discovery of resource injuries linked to particular releases. Among federal trustee agencies, NOAA is most likely to be concerned with resource damages affecting marine sediments. California, New York, Texas, and Washington have been the coastal states most active to date in pursuing natural resource damage claims.

52. 42 U.S.C. § 9607(f)(1), ELR STAT. CERCLA § 107(f)(1).

53. For a summary of applicable provisions of EPA's major environmental statutes, some of which are not addressed in detail in this review, see U.S. EPA, CONTAMINATED SEDIMENTS: RELEVANT STATUTES AND EPA PROGRAM ACTIVITIES, tbl. 1 (1991) (EPA 506/6-90-003).

54. 33 U.S.C. § 1265, ELR STAT. FWPCA § 115.

55. EPA indicates that FWPCA § 115 was funded once in 1977 and applied to the Duwamish Waterway in Puget Sound.

56. 33 U.S.C. § 1313, ELR STAT. FWPCA § 303.

57. See Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329 (July 1997); Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (Aug. 1997).

58. Recent court cases may be of interest to ports or others looking for a legal mechanism to force cleanup of sources. Alaska Ctr. for Env't v. Reilly, 796 F. Supp. 1374, 22 ELR 21204 (W.D. Wash. 1992), aff'd sub nom., Alaska Ctr. for Env't v. Browner, 20 F.3d 981, 24 ELR 20702 (9th Cir. 1994) (EPA held to have a nondiscretionary duty to establish TMDLs where a state failed to do so, in response to a citizen suit by a coalition of environmental groups to force EPA to adopt TMDLs in Alaska, where the state had failed to do so); Dioxin/Organochlorine Ctr. v. Rasmussen, 1993 WL 484888 (W.D. Wash. Aug. 10, 1993) (upheld against an industry and environmental group challenge to an EPA TMDL and WLA for dioxin set for the Columbia River Basin in Washington, Oregon, and Idaho, despite the lack of previously established technology-based effluent limits for dioxin); Sierra Club v. Browner, 843 F. Supp. 1304, 24 ELR 21006 (D. Minn. 1993) (rejected citizen suit after EPA had acted to reject Minnesota's list of water quality limited segments and gave EPA broad latitude to set reasonable timetables for developing TMDLs); American Paper Inst. v. EPA, 996 F.2d 346, 23 ELR 20984 (D.C. Cir. 1993) (upheld an EPA rule requiring discharge permits to contain specific limits, even if the water quality standards on which they are based are solely narrative rather than numerical).

59. The Japanese approach to distant contributors to contamination problems that interfere with important public works projects is instructive—although, apparently, not widely implemented. Under Japan's Pollution Control Public Works Cost Allocation Law, businesses that "engage in … industrial activities which cause or will cause pollution" in the area where specified "pollution control public works" take place, must assume financial responsibility for an "amount proportionate to the degree that the industrial activities of all the enterprises … constitute the source of pollution for which [the] pollution control public works are undertaken." Law No. 133 of December 25, 1970, as amended by Law No. 43 of 1978, arts. 3 & 4. Among the "public works" projects to which this law applies are "dredging … or any other works as prescribed by a Cabinet Order, which are undertaken in rivers, lakes, harbours, or any other area for public use where sludge and other pollution causing substances are deposited or where water is polluted." Id. art. 2.2(2). Port authorities are given the status of a "local government body" for purposes of implementing, enforcing, and receiving reimbursement under this law. Id. arts. 11 & 19. The closest existing counterparts under U.S. law are the "joint and several liability" provisions under Superfund.

60. 33 U.S.C. § 1314(l), ELR STAT. FWPCA § 304(l).

61. EPA notes that although this provision was not directed at contaminated sediments, a number of sites identified contaminated sediments as the primary source of toxic pollutants to the water column.

62. Id. § 1317, ELR STAT. FWPCA § 307.

63. Id. § 1329, ELR STAT. FWPCA § 319.

64. A recent EPA background report, which relied on Toxic Release Inventory and Permit Compliance System data (but did not look at nonpoint source pollution), provides preliminary evidence that active industrial discharges may be an ongoing contributor to sediment contamination and that sediment contamination is not strictly a hot spot issue associated with historical discharges. OFFICE OF SCIENCE & TECH., U.S. EPA, NATIONAL SEDIMENT CONTAMINANT SOURCE INVENTORY: ANALYSIS OF FACILITY RELEASE DATA (1996) (EPA-823-D-96-001).

65. 33 U.S.C. § 1330, ELR STAT. FWPCA § 320.

66. Id. § 1321, ELR STAT. FWPCA § 311.

67. Id. § 1342, ELR STAT. FWPCA § 402.

68. EPA indicates that the National Pollutant Discharge Elimination System program, which has responsibility for the issuance of discharge permits under § 402, has now "agreed to use the EPA standardized bioassays to evaluate sediment contamination." OFFICE OF WATER, U.S. EPA, EPA's CONTAMINATED SEDIMENT MANAGEMENT STRATEGY 22 (1994) (EPA 823-R-94-001).

69. 33 U.S.C. § 1268, ELR STAT. FWPCA § 118.

70. Agreement on Great Lakes Water Quality, Nov. 22, 1978, U.S.-Canada, 30 U.S.T. 1383 (amended 1983 and 1987, T.I.A.S. Nos. 10798, 11551).

71. 33 U.S.C. § 1267, ELR STAT. FWPCA § 117.

72. Id. § 1266, ELR STAT. FWPCA § 116.

73. Id. § 1269, ELR STAT. FWPCA § 119.

74. There was, however, a gap in 1994.

75. Water Resources Development Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082.

76. §§ 101-109, 100 Stat. at 4082-89; 33 U.S.C. § 2211.

77. § 101(a)(3), (e)(1), 100 Stat. at 4083; see also 33 U.S.C. § 2211; 42 U.S.C. § 1962d-5b.

78. Memorandum from G. Edward Dickey, Acting Assistant Secretary of the Army (Civil Works), to the Director of Civil Works on "confined disposal facilities (CDF)" (July 23, 1993) (transmitting a June 29, 1993, memorandum from Earl H. Stockdale, Deputy General Counsel (Civil Works and Environment)).

79. 33 U.S.C. § 419a, however, directs the Secretary of the Army to "utilize and encourage the utilization of such management practices as he determines appropriate to extend the useful life of dredged material disposal areas." Also, § 216 of WRDA 1992 authorizes the Secretary to conduct a study "on the need for changes in Federal law and policy with respect to dredged material disposal areas for the construction and maintenance of harbors and inland harbors by the Secretary"—including "the need for any changes in Federal and non-Federal cost sharing for such areas and harbor projects, including sources of funding." WRDA 1992, § 216(a), 106 Stat. 4832-33. As is discussed more fully in the discussion of WRDA 1996, that statute altered the preexisting cost-sharing regime and mandated that the cost of constructing dredged material disposal areas—whether for dredged material associated with new-work or maintenance dredging—be cost-shared on the same basis as provided in WRDA 1986 for new-work dredging projects. See infra note 120 and accompanying text.

WRDA 1986 also imposed a harbor maintenance tax and an inland waterways tax and authorized the creation of a Harbor Maintenance Trust Fund and an Inland Waterways Trust Fund. §§ 1401-1405, 100 Stat. at 4266-72. Money from the former trust fund was to be used to fund up to 40 percent of eligible operations and maintenance costs assigned to the commercial navigation of all harbors and inland harbors in the United States. § 210, 100 Stat. at 4106; see also 33 U.S.C. § 2238; 26 U.S.C. § 9505. Nonfederal interests, to generate funds to cover their cost shares, are authorized to levy port or harbor dues on vessels and cargo utilizing a harbor. § 208, 100 Stat. at 4102-06; 33 U.S.C. § 2236.

80. Pub. L. No. 91-611, 84 Stat. 1823 (codified at 33 U.S.C. § 1293a).

81. 33 U.S.C. § 1293a.

82. § 201, 110 Stat. at 3671-72.

83. 100 Stat. at 4157.

84. Id. at 4165.

85. Id. at 4185.

86. Id. at 4186-87.

87. Id. at 4188.

88. Id.

89. Id. at 4251. Additional WRDA 1986 provisions of interest include § 201(a), which deals with deep-draft harbor development projects in California, New Jersey, and New York; § 211, which directed EPA to designate within three years one or more alternative dredged material ocean dump sites, "not less than 20 miles from the shoreline," for disposal of dredged material currently placed at the Mud Dump site; § 709, which directed EPA to "study and monitor the extent and adverse environmental effects of dioxin contamination in the Passaic River-Newark Bay navigation system," with a report back to Congress including recommendations "concerning methods of reducing the effects of such contamination"; and § 1162, which directed the Corps "to remove polluted bottom sediments" from the Miami River and Seybold Canal, Florida, with local interests furnishing all lands, easements, rights-of-way, relocations, and alternations necessary for initial dredging and subsequent maintenance. § 201(a), 100 Stat. at 4089-90; § 211, 100 Stat. at 4106; § 709, 100 Stat. at 4159; § 1162, 100 Stat. 4257-58.

90. Water Resources Development Act of 1988, Pub. L. No. 100-676, 102 Stat. 4012.

91. 102 Stat. at 4023-24 (codified at 33 U.S.C. § 2314).

92. Such measures include encouraging "greater participation by non-Federal project sponsors in the development and implementation of projects." § 8(a), 102 Stat. at 4023. "Innovative technology" is defined as "designs, materials, or methods which the Secretary determines are previously undemonstrated or are too new to be considered standard practice." § 8(c), 102 Stat. at 4023-24.

93. 102 Stat. at 4027-28.

94. The Corps is directed to "conduct a study of the materials disposed of in [such CDFs] … for the purpose of determining whether or not toxic pollutants are present in such facilities [and their concentrations]." § 24(b), 102 Stat. at 4028 (codified at 33 U.S.C. § 1293a(k)). "Toxic pollutant" is defined as in FWPCA § 301(b)(2) and "such other pollutants as the Secretary, in consultation with the Administrator … determines are appropriate based on their effects on human health and the environment." Id.

WRDA 1988 also authorizes the Corps to place dredged material from the Gulfport Habor, Mississippi, navigation project "in accordance with all provisions of Federal law" at various open-water locations, including "thin layer disposal" in the Mississippi Sound of new-construction dredged material as part of a demonstration project. § 4(n), 102 Stat. at 4017. In addition, it directs the Corps to carry out a comprehensive demonstration program "for the purpose of evaluating the costs and benefits of thin layer disposal … and for determining whether or not there are unacceptable adverse effects from such disposal." Id. "Thin layer disposal" is defined as "the deliberate placement of a 6- to 12-inch layer of dredged material in a specific bottom area." § 4(n)(4), 102 Stat. at 4019.

95. Pub. L. No. 101-640, 104 Stat. 4604.

96. 104 Stat. at 4639-40.

97. Although only $ 10 million annually was appropriated for such purposes, this "environmental dredging" authority represented an important new dimension to the Corps' activities.

98. 104 Stat. at 4635 (codified at 33 U.S.C. § 2316).

99. Id. at 4635-37 (codified at 33 U.S.C. § 2317).

100. It also directed the Secretary to develop, in consultation with other agencies, a "wetlands action plan" to achieve these goals as soon as possible. § 307(a)(3), 104 Stat. 4635-36. The Secretary also was authorized, in consultation with the Administrator, to "establish and implement a demonstration program for the purpose of determining the feasibility of wetlands restoration, enhancement, and creation …." § 307(d)(1), 104 Stat. at 4636.

101. Other important provisions include § 401, which authorized the Secretary to provide technical, planning, and engineering assistance to states and local governments in developing and implementing "remedial action plans for areas of concern in the Great Lakes identified under the Great Lakes Water Quality Agreement of 1978" (non-federal interests must contribute 50 percent of the costs of such assistance); and § 411, which directed the Assistant Secretary of the Army for Civil Works, the EPA Administrator, and the governor of New York to jointly convene "a management conference for the restoration, conservation, and management of Onondaga Lake, New York" to develop recommendations for priority corrective actions and compliance schedules for cleanup and coordinate implementation of the plan. § 401, 104 Stat. at 4644; § 411, 104 Stat. at 4648-50.

102. Water Resources Development Act of 1992, Pub. L. No. 102-580, 106 Stat. 4797.

103. "Contaminated sediment" is defined as aquatic sediment that "contains chemical substances in excess of appropriate geochemical, toxicological or sediment quality criteria or measures" or "is otherwise considered by [EPA] to pose a threat to human health or the environment." § 501(b)(4), 106 Stat. at 4864. EPA has developed and promulgated five sediment quality criteria (for acenaphthene, dieldrin, endrin, fluoranthene, and phenanthrene) along with the technical basis for establishing sediment quality criteria for non-ionic chemicals using equilibrium partitioning. See 59 Fed. Reg. 2652-56 (Jan. 18, 1994).

104. WRDA 1992 includes the National Contaminated Sediment Assessment and Management Act. Tit. V, §§ 501-510, 106 Stat. at 4864-71.

105. The task force was to include representatives of EPA, the Corps, NOAA, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, and the U.S. Department of Argiculture; up to three state representatives; up to three representatives of ports, agriculture, and manufacturing; and up to three representatives of public interest organizations.

106. § 502, 106 Stat. at 4864. Creation of such a task force was one of the recommendations in a 1989 National Research Council report. 1989 NATIONAL RESEARCH COUNCIL REPORT, supra note 1, at 6. EPA has indicated that establishment of this task force "is pending congressional appropriations." In other words, this is viewed as an "unfunded mandate" which will not be implemented unless Congress either provides funding for it or directs EPA to reprogram money from other sources.

107. This was also one of the recommendations in the 1989 National Research Council report. 1989 NATIONAL RESEARCH COUNCIL REPORT, supra note 1, at 5.

108. § 503(a)(2), 106 Stat. at 4866. EPA's Office of Science and Technology (OST) has been working since 1992 to develop this inventory of contaminated sediment sites. Based on experience gained from pilot inventories in EPA Regions IV and V, and the Gulf of Mexico Program (a combination of Regions IV and VI), during 1992 and 1993, a planning document, Framework for the Development of the National Sediment Inventory, was produced in November 1992. This document describes the approach to be used for sediment quality data and discusses how the information will be used by each EPA program office. The document was presented and discussed at a two-day interagency workshop held inWashington, D.C., in March 1993. For the next year, OST compiled data from more than 10 national and regional data sets into a centralized data base called the National Sediment Inventory (NSI). The NSI is being evaluated to produce the first report to Congress on sediment quality in the United States. Also included in this report to Congress will be data from a two-year study of point source discharges of sediment contaminants nationwide, including an analysis of areas, chemicals, and industries of concern. A preliminary evaluation of the sediment chemistry portion of the NSI, which identifies each U.S. watershed area with elevated chemical concentrations that may pose an ecological and/or human health risk, is described in an EPA report, The National Sediment Inventory: Preliminary Evaluation of Sediment Chemistry Data, dated May 17, 1994. An interim draft version of the report to Congress was issued in the summer of 1996, but as of early summer 1997, the final report had yet to be submitted. EPA indicated that the report was scheduled to go to the Office of Management and Budget in July 1997 and that it anticipated that the final report to Congress would be submitted by the end of fiscal year 1997.

109. § 503(b), 106 Stat. at 4866.

110. It must include a monitoring program; special management conditions; "consideration of the quantity of the material to be disposed of at the site, and the presence, nature, and bioavailability of the contaminants in the material"; and the anticipated closure date for the site. § 506, 106 Stat. at 4868 (codified at 33 U.S.C. § 1412(c)(3)).

111. Corps selections now can occur only for a maximum of 10 years and only if no feasible placement site has been designated by EPA; continued use of an alternative site is necessary to maintain navigation and commerce; and continued use of the site does not pose an unacceptable risk to health, aquatic resources, or the environment. § 506, 106 Stat. at 4868-69.

112. Tit. V, 106 Stat. at 4864 (partially codified at 33 U.S.C. §§ 1412-1413).

113. See generally Benjamin H. Grumbes & Kenneth J. Kopocis, The Water Resources Development Act of 1992: Expanding the "Corps of Environmental Engineers," 23 ELR 10379 (June 1993).

114. § 203, 106 Stat. at 4826 (codified at 33 U.S.C. § 2325). This recognizes that third parties may benefit from and be willing to contribute to environmental protection projects.

115. § 204, 106 Stat. at 4826-27 (codified at 33 U.S.C. § 2326). Nonfederal interests must enter into a cooperative agreement to provide 25 percent of the incremental construction cost, "including provision of all lands, easements, rights-of-way, and necessary relocations," and 100 percent of "the operation, maintenance, replacement, and rehabilitation costs" associated with the habitat enhancement project. This provision was designed to establish an outlet for the beneficial use of dredged material. The Corps is authorized to spend up to $ 15 million annually on projects under this section. Id.

116. § 207, 106 Stat. at 4829 (codified at 33 U.S.C. § 426(j) asamended). It also encourages the Corps to accommodate the state's schedule for paying its share of the cost. Id.

117. § 216, 106 Stat. at 4832-33. A report, with recommendations, was to be submitted to Congress by the spring of 1994. Id.

118. § 327, 106 Stat. at 4851. This data collection requirement tracks one of the recommendations of the 1989 National Research Council study on contaminated sediments. See 1989 NATIONAL RESEARCH COUNCIL REPORT, supra note 1, at 5.

Additional WRDA 1992 provisions of interest include § 308 (study to develop procedures and criteria for distinguishing which sediments should be placed in containment sites, from those that could be beneficially used or placed in open waters), § 334 (study to expand or supplement existing placement options and sites), § 316 (feasibility study of establishing a transfer facility for the drying and rehandling of dredged material that is to be transported to a land site for beneficial uses), § 326(e) (study to identify remediation techniques to mitigate dioxin contaminated sediments at their sources), § 405 (EPA and Corps decontamination project using selected removal, pretreatment, posttreatment, and decontamination technologies), § 328 (cooperative study with nonfederal interests of contaminated sediments), § 345 (study on bank stabilization, marsh creation, and beneficial use of dredged material), and § 356 (Corps, together with port and state environmental agency, to develop a comprehensive 5-year and 20-year sediment management strategy). § 308, 106 Stat. at 4841-42; § 334, 106 Stat. at 4852-53; § 316, 106 Stat. at 4847; § 326(e), 106 Stat. at 4850-51; § 405, 106 Stat. at 4863; § 328, 106 Stat. at 4851; § 345, 106 Stat. at 4858; § 356, 106 Stat. at 4860.

119. Water Resources Development Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658.

120. § 201(a)(3), 201(b)(4), 110 Stat. at 3671-72 (emphasis added). This change was designed to "benefit[] … the aquatic environment by reducing inordinate pressure for open water disposal, which may be less costly but may, in some cases, not be preferable from an environmental point of view." H.R. CONF. REP. No. 104-843, at 146 (1996). The legislation directed the Secretary of the Army to ensure to the extent practicable that operation and maintenance (O&M) funding requirements" are considered before Federal funds are obligated for payment" of the federal cost share. § 201(d), 110 Stat. at 3672. It stopped short, however, of expressly requiring that O&M-related costs and benefits be considered as part of the underlying project's cost/benefit analysis.

121. § 201(d), 110 Stat. at 3672. Where disposal facilities are constructed by the federal government, the Secretary may "provide additional capacity" at the request of a nonfederal interest, as long as that entity agrees to pay "all costs associated with the construction of the additional capacity." § 217(a)(1), 110 Stat. at 3694. Even where the nonfederal interest played no role in financing the facility's construction, the Secretary may permit it to use the facility if "the Secretary determines that such use will not reduce the availability of the facility for project purposes." § 217(b)(1)(A), 110 Stat. at 3695. The Secretary is authorized, but not required, to impose fees "to recover capital, operation, and maintenance costs associated with such use." § 217(b)(1)(B), 110 Stat. at 3695.

122. § 217(c)(1), 110 Stat. at 3695.

123. § 217(c)(2)(B), 110 Stat. at 3695. The amount of the fees paid by the Secretary are to be "sufficient to repay funds contributed by the private entity plus a reasonable return on investment approved by the Secretary …." § 217(c)(2)(C), 110 Stat. at 3695. The federal share of such fees must equal "the percentage of the total cost that would otherwise be borne by the Federal government pursuant to existing cost-sharing requirements," including those set under WRDA 1986 and WRDA 1992. § 217(c)(2)(D), 110 Stat. at 3695.

124. 110 Stat. at 3678-79. The federal share, up to 80 percent of which may be in kind, is set at 75 percent, with a limit of $ 5 million for any single modification or measure of this kind. The Secretary is also given general authority to carry out "an aquatic ecosystem restoration and protection project," where he determines the project (1) "will improve the quality of the environment and is in the public interest"; and (2) "is cost-effective." § 206(a), 110 Stat. at 3579. Here, the federal share may not exceed 65 percent or $ 5 million "for a project at any single locality." § 206(b), (d), 110 Stat. at 3679-80.

125. Id. at 3680.

126. Id. at 3763. Subsection (d) directed the Secretary to conduct a feasibility study to determine the feasibility of constructing and operating "an underwater confined dredged material disposal site in the Port of New York-New Jersey that could accommodate as much as 250,000 cubic yards of dredged material," as a means of demonstrating the feasibility of an underwater confined disposal pit as an environmentally suitable method of containing certain sediments. § 516(d), 110 Stat. at 3764.

Other noteworthy provisions of WRDA 1996 include § 226 (EPA-Corps pilot study of sediment decontamination technologies with a capacity of at least 500,000 cubic yards per year), § 349 (Navy to transfer to the Army jurisdiction over 1,400 acres of land to be used as a dredged material disposal area for dredging activities in the vicinity of a nearby port), § 356 (Secretary of the Army to coordinate with local port on the use of a specified slip as a dredged material disposal area), § 503 (authorizing $ 15 million in technical, planning, and design assistance to nonfederal interests to carry out certain watershed management, restoration, and development projects at listed locations, including for control and remediation of toxic sediments), § 510 (environmental assistance to nonfederal interests for water-related environmental infrastructure and resource protection and development projects affecting the Chesapeake Bay estuary, including projects for beneficial uses of dredged materials), § 513 (assessment of the general conditions of confined disposal facilities in the Great Lakes, including an evaluation of management practices and technologies to conserve and minimize adverse effects), § 514 (Corps and EPA technical assistance to nonfederal interests on Great Lakes dredged material testing procedures), § 515 (Corps and EPA pilot- and full-scale projects of promising technologies to remediate contaminated sediments in freshwater coastal regions in the Great Lakes basin), §§ 555 and 570 (authority to construct, operate, and maintain a dredged material containment facility of sufficient capacity for the Ports of New York-New Jersey, and Providence, Rhode Island), and § 582 (deauthorization of the LA-3 dredged material ocean disposal site after January 1, 2000). § 226, 110 Stat. at 3697-98; § 349, 110 Stat. at 3724; § 356, 110 Stat. at 3726; § 503, 110 Stat. at 3756-57; § 510, 110 Stat. at 3759-61; § 513, 110 Stat. at 3762; § 514, 110 Stat. at 3762; § 515, 110 Stat. at 3763; § 555, 110 Stat. at 3781-82; § 570, 110 Stat. at 3788; § 582, 110 Stat. at 3791.

127. 33 U.S.C. § 1341(a), ELR STAT. FWPCA § 401(a).

128. FWPCA § 401 originally did not apply to federal agency action. Section 401(a)(6) formerly provided that "no Federal agency shall be deemed to be an applicant for the purposes of this subsection." This provision was held by the U.S. District Court for the District of Rhode Island to insulate the Corps and its private contractors from the application of state water quality standards under the FWPCA. Save Our Fisheries v. Callaway, 387 F. Supp. 292 (D.R.I. 1974). However, the 1977 amendments to the FWPCA removed and replaced § 401(a)(6), eliminating the federal agency exception.

129. As applied to ocean dumping, the MPRSA is not clear on the states' jurisdictional status regarding FWPCA § 401 water quality certification. Although § 401 does apply to all federal permits, only those states in which the discharge originates may certify compliance. Otherwise, states are relegated to the role of "affected states" pursuant to FWPCA § 401(a)(2), which gives them a role, but they do not have the final say. 33 U.S.C. § 1341(a)(2), ELR STAT. FWPCA § 401(a)(2). However, the conditional language of § 401, which grants certifying jurisdiction to a state in which discharge may occur, suggests that discharge in the state's territorial waters incidental to ocean dumping may require state certification. This conclusion is supported by the reasoning in Save Our Fisheries v. Callaway, in which the court found that state certification of an ocean dumping permit was not required. 387 F. Supp. 292 (D.R.I. 1974). The court did not find that the state lacked jurisdiction to review certification but that the activity was exempt from review as a federal agency action. The court implied that state water quality certification would have been necessary if a federal agency had not been the acting party. 387 F. Supp. at 306. Of course, the exemption no longer exists for federal agencies, leaving both federal actions and private party permit applicants open to state water quality review.

130. 33 U.S.C. § 1313(a), ELR STAT. FWPCA § 303(a).

131. Id. § 1370, ELR STAT. FWPCA § 510.

132. Id.

133. Id. § 1412(a).

134. See WRDA 1992, Pub. L. No. 102-580, tit. V, 106 Stat. 4797, 4867 (codified at 33 U.S.C. § 1416(d)(1)).

135. 33 C.F.R. § 320.4(d) (1995).

136. 40 C.F.R. § 227.18(b)-(c) (1995).

137. 33 U.S.C. § 1412(a)(B).

138. 16 U.S.C. § 1456(c), ELR STAT. CZMA § 307(c).

139. In the case of a federally permitted project, state concurrence is required before a permit can be issued. In the case of a project directly undertaken by a federal agency, it is up to the agency to "ensure… to the maximum extent practicable" that the project is consistent with the state's enforceable coastal zone management policies. Compare 16 U.S.C. § 1456(c)(1)(A), ELR STAT. CZMA § 307(c)(1)(A), with id. § 1456(c)(3)(A), ELR STAT. CZMA § 307(c)(3)(A). The Corps and NOAA are developing a joint "policy paper" (Coastal Zone Management Act Consistency Compliance Requirement for Corps of Engineers O&M Projects) clarifying the responsibilities of the Corps for complying with CZMA § 307(c) when undertaking congessionally authorized operations and maintenance activities at navigation projects. The latest draft of this policy paper is dated March 18, 1997. It is to be signed by General Russel H. Fuhrman, Director of Civil Works, U.S. Army Corps of Engineers, and Jeffrey R. Benoit, Director, Office of Ocean and Coastal Resource Management, NOAA.

140. 10 U.S.C. §§ 7421-7426, 7428-7438, 43 U.S.C. §§ 1301-1303, 1311-1315.

141. 43 U.S.C. § 1301(b).

142. United States v. Alaska, 112 S. Ct. 1606 (1992) (unanimous decision).

143. Id. at 1609.

144. Id. at 1615-19.

145. 33 C.F.R. § 320.4(j)(2) (1996).

146. As illustrated in the Port of Tacoma project. See 1997 NATIONAL RESEARCH COUNCIL REPORT, supra note 22, app. C.

147. As illustrated in the Hart and Miller islands project. See id.

148. This case was still pending as of the end of the Supreme Court's 1997 term. On April 2, 1997, a special master, Paul R. Verkuil, recommended to the Court that the island be divided between New York and New Jersey, with New York receiving 5 acres and New Jersey 22.5 acres. In a related case, United States v. Alaska, the Court held (in a 6-3 decision) that the federal government and not Alaska owns disputed offshore submerged lands along the state's northeast coast, because the federal government did not transfer these lands to Alaska at statehood in 1959. The Alaska Statehood Act was found to have expressly prevented lands that had been set apart for use as a wildlife refuge from passing to the state. No. 84, slip op., 27 ELR 21176 (U.S. June 19, 1997).

149. In the context of the RHA, "navigable waters" refers to waters that are "navigable-in-fact" in the traditional sense or susceptible to navigation. The term does not apply to more broadly defined "waters of the United States," including wetlands, which may be used by migratory birds or have some other link to interstate commerce but are not susceptible to navigation. Traditionally "navigable waters" are defined in 33 C.F.R. § 329.4 (1996); "waters of the United States" are defined in id. pt. 328 (1996).

150. Whether § 10 is considered to apply or not depends on whether there is a demonstrable obstruction to navigation or the potential to alter the course, location, condition, or capacity of a navigable waterway. In addition, § 10 might not apply "where a construction project in navigable waters was authorized specifically by Congress.

151. 58 Fed. Reg. 45007-33 (Aug. 25, 1993); 33 C.F.R. §§ 323, 328 (1996).

152. American Mining Congress v. U.S. Army Corps of Eng'rs, 951 F. Supp. 267, 27 ELR 20589 (D.D.C. 1997). This case was subsequently upheld on rehearing, but stayed pending appeal.

153. However, if the excavation were carried out pursuant to a CERCLA ROD as part of an approved remedial action, then the need for a formal permit could be avoided as long as the underlying substantive requirements of the § 10 regulations were satisfied.

154. Convention on the Prevention of Marine Pollution By Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120.

155. Although the London Convention purports to flatly prohibit the ocean dumping of wastes or other matter containing Annex I ("black list") constituents as "other than trace contaminants," the United States employs bioassay and bioaccumulation—rather than chemical—tests to determine whether this situation exists. Because such tests are not chemical-specific (i.e., one cannot be certain whether an Annex I constituent or something else caused the test to fail), and because there are escape clauses that have been recognized under both international and domestic law, the prohibition is not quite as absolute as its wording would suggest. As previously noted, the ocean dumping criteria contain exceptions (e.g., for material that is "rapidly rendered harmless") that could allow material to be dumped in the ocean even after the biological tests have failed.

156. Corps rules are based on intent. See, e.g., 33 C.F.R. § 323.2(3) (1996) (fill material defined as material used for the primary "purpose" of replacing an aquatic area with dry land); id. § 323.4(c) (agricultural and silvicultural exception does not apply if part of an activity whose "purpose" is to convert an area of U.S. waters into new uses, where water flow or circulation may be impaired).

157. Id. §§ 323, 323.2(d).

158. The most likely "charaacteristic" to apply in this situation is the "toxicity" characteristic, the presence of which is established by subjecting the material to the TCLP and determining whether established regulatory levels for any of 39 specified toxicity characteristic (TC) constituents have been exceeded. 40 C.F.R. § 261 (1996); see also 55 Fed. Reg. 26986-98 (June 29, 1990). Wet dredged material is unlikely to exceed TC regulatory limits, even when high levels of contaminants are present. Dry dredged material could exceed such limits when certain contaminants are present, even at very low levels.

159. Rulemaking Notice on the Operation and Maintenance of Army Corps of Engineers Civil Works Project Involving the Discharge of Dredged or Fill Materials Into Waters of the U.S. or Ocean Waters (33 C.F.R. Part 3365), 53 Fed. Reg. 14903 (Apr. 26, 1988).

160. See 57 Fed. Reg. 21450, 21453 (May 20, 1992).

161. Proposed 40 C.F.R. § 261.4(h) in Rulemaking Notice on Requirements for Management of Hazardous Contaminated Media, 61 Fed. Reg. 18779 (proposed Apr. 29, 1996).

162. Limited exceptions to this are the water quality-based discharge limits under FWPCA § 303. See supra note 57 and accompanying text.

163. 33 U.S.C. § 1402(f).

164. 40 C.F.R. § 227.6(f) (1996).

165. See discussion of related issue in Table 1.

166. See supra note 28.

167. EPA is standardizing solid-phase sediment toxicity and bioaccumulation tests for freshwater and marine species. See U.S. EPA, TIERED TESTING ISSUES FOR FRESHWATER AND MARINE SEDIMENTS (1992) (EPA 823-R93-001).

168. 42 U.S.C. § 9621(b), ELR STAT. CERCLA § 121(b).

169. Pub. L. No. 99-662, §§ 101, 102, 100 Stat. 4082, 4082-84.

170. See, e.g., U.S. EPA, EVALUATING ENVIRONMENTAL EFFECTS OF DREDGED MATERIAL MANAGEMENT ALTERNATIVES—A TECHNICAL FRAMEWORK (1992) (EPA 842-B-92-008).