[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Proposed Rules]
[Pages 7765-7770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4705]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 220 and 227
[FRL-5432-2]
RIN 2040-AC81
Testing Requirements for Ocean Dumping
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA today is issuing a proposed rule that would clarify
certain provisions of the Agency's ocean dumping regulations relating
to requirements for bioassay testing. The purpose of today's proposal
is to clarify regulatory language that was interpreted by the U.S.
Court of Appeals for the Third Circuit in a different manner than EPA
intended. Today's proposal would confirm the validity of existing
testing practices, and would not change them.
DATES: Written comments on this proposed rule will be accepted until
April 1, 1996. All comments must be postmarked or delivered by hand to
the address below by this date.
ADDRESSES: Send written comments on this proposed rule to the Ocean
Dumping Proposed Rule Comment Clerk, Water Docket, MC-4101,
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460. Commenters should submit any references cited in their comments.
Commenters are requested to submit an original and three copies of
their written comments and any enclosures. Commenters who want receipt
of their comments acknowledged should include a self-addressed, stamped
envelope. No facsimile or electronic mail transmissions (faxes or e-
mail) will be accepted.
A copy of the supporting documents for this proposed rule are
available for review at EPA's Water Docket, Room L-102, 401 M Street,
SW, Washington, DC 20460. For access to the docket materials, call 202/
260-3027 between 9:00 a.m. and 3:30 p.m., for an appointment.
FOR FURTHER INFORMATION, CONTACT: John Lishman, Chief, Marine Pollution
[[Page 7766]]
Control Branch, Oceans and Coastal Protection Division (4504F),
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, telephone 202/260-8448.
SUPPLEMENTARY INFORMATION:
A. Statutory and Regulatory Background, and Summary of Previous
Litigation
The Ocean Dumping Regulations, which govern the evaluation and
permitting of material to be ocean dumped, were promulgated by EPA on
January 11, 1977, under Title I of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq.
(hereinafter ``the Act'' or ``the MPRSA''). These regulations are
contained in 40 CFR Parts 220-229.
The MPRSA prohibits the transportation of material from the United
States for the purpose of ocean dumping without a permit, and prohibits
U.S. instrumentalities and U.S. registered or flagged vessels from
transporting materials from any location for the purpose of ocean
dumping without a permit. The Act also prohibits the unpermitted
dumping of material transported from a location outside the United
States into the Territorial Sea or the Contiguous Zone, if the dumping
affects the Territorial Sea or U.S. territory.
Under Section 102(a) of the Act (33 U.S.C. 1412(a)), EPA has
responsibility for issuing permits for the ocean dumping of all
materials other than dredged material. Under Section 103(a) of the Act
(33 U.S.C. 1413(a)), the Secretary of the Army has responsibility for
issuing permits for the ocean dumping of dredged material. This
permitting authority has been delegated to the Corps of Engineers
(``the Corps''). The Corps applies EPA ocean dumping regulations in
making its permit decisions. EPA's role pertaining to the Corps'
issuance of dredged material disposal permits is one of review and
concurrence. Although the Corps is the permitting authority for dredged
material, Section 103 of the Act establishes a substantial role for EPA
with regard to the evaluation of the impacts of the ocean disposal of
dredged material.
On June 1, 1993, Clean Ocean Action, an organization concerned with
issues affecting water quality, as well as other groups (``the
plaintiffs''), filed a complaint and a request for injunctive relief in
the United States District Court, District of New Jersey, against the
Corps, EPA, and the Port Authority of New York and New Jersey (``the
Port Authority''), challenging an ocean dumping permit issued to the
Port Authority by the Corps. Clean Ocean Action v. York, Civil No. 93-
2402 (DRD) (D.N.J.). The permit authorized the Port Authority to
perform maintenance dredging from two Port Authority facilities in
Newark Bay, and to dispose of the dredged material in the Atlantic
Ocean at the New York Bight Dredged Material Disposal Site (also known
as the Mud Dump Site).
In a decision dated June 7, 1993, the District Court denied the
plaintiffs' request for a preliminary injunction to halt the disposal
of the dredged material at the Mud Dump Site. After additional briefing
and other proceedings, the District Court issued a formal opinion on
June 28, 1994, again denying the requested injunctive relief. In its
opinion, the District Court also concluded that the bioassay tests
performed on the dredged material met the requirements of the ocean
dumping regulations. 861 F. Supp. 1203 (D.N.J. 1994).
On June 12, 1995, the United States Court of Appeals for the Third
Circuit affirmed the District Court's denial of a preliminary
injunction. Clean Ocean Action v. York, 57 F.3d 328 (3d Cir. 1995). The
Third Circuit also stated, however, that the District Court had erred
in its conclusion that the bioassays performed on the dredged material
in issue met the requirements of the ocean dumping regulations.
As a result of the opinion of the Third Circuit, a degree of
uncertainty now exists regarding certain of the ocean dumping
regulatory testing requirements. Today's proposed rulemaking would
clarify those regulatory requirements in a manner that is consistent
with existing testing practices.
In particular, the Third Circuit examined the language of 40 CFR
227.6(c). That section currently provides that the potential for
significant undesirable effects due to the presence of constituents
listed at 40 CFR 227.6(a) ``shall be determined by application of
results of bioassays on liquid, suspended particulate, and solid phases
of wastes according to procedures acceptable to EPA, and for dredged
material, acceptable to EPA and the Corps of Engineers.'' EPA and the
Corps had argued, and the District Court had found, that Sec. 227.6(c)
reserves discretion in the agencies not to require bioaccumulation
bioassay tests in the suspended phase if acceptable procedures for such
tests are not available and approved for use. The Third Circuit,
however, concluded that Sec. 227.6(c) requires suspended phase
bioaccumulation bioassays even where neither EPA nor the Corps of
Engineers has identified acceptable procedures. The Court read that
section as reserving discretion in the agencies to determine how, but
not whether, to conduct the tests. 57 F.3d at 332.
As described more fully in Part B of today's preamble, today's
proposal would amend Secs. 220.2, 227.6, and 227.27 to more clearly
reserve discretion regarding when bioassays are to be conducted. This
would be done by clarifying that bioassays are not required if there
are no Agency-approved procedures, as will be explained in more detail
below. (EPA has previously amended Secs. 227.6(c)(2) and 227.27(b) of
the ocean dumping regulations to clarify specifically that
bioaccumulation tests are not required in the suspended phase. See 59
FR 26566 (May 20, 1994) (Interim Final Rule); 59 FR 52650 (October 18,
1994) (Final Rule)).
The Third Circuit opinion also addressed Sec. 227.27(d). That
section provides that ``appropriate sensitive benthic organisms,''
which are to be used in solid phase testing under Sec. 227.6(c)(2),
means ``at least one species each representing filter-feeding, deposit-
feeding, and burrowing species chosen from among the most sensitive
species accepted by EPA as being reliable test organisms to determine
the anticipated impact on the site * * *'' There are some marine
species that exhibit more than one of the filter-feeding, deposit-
feeding, and burrowing characteristics. Current Agency guidance
specifies that when bioaccumulation and toxicity testing is performed
on the solid phase, two species may be used for each of these two sets
of tests, so long as the two species together exhibit all of the three
species characteristics. The Third Circuit opinion, however, could be
construed to indicate that three different test species should be
required for solid phase bioassay tests. See 57 F.3d at 332, 333 n.2.
(In the case before the Third Circuit, only one benthic organism was
tested for bioaccumulation of dioxin in the solid phase before the
District Court required additional testing. 861 F. Supp. at 1210.)
EPA is proposing to amend the definition of the ``appropriate
sensitive benthic organisms'' used in benthic bioassay tests to mean at
least two species that together exhibit filter-feeding, deposit-
feeding, and burrowing characteristics. Consistent with current Agency
guidance, the proposed language would clarify that the use of two such
species is sufficient. In addition, today's proposal would amend the
definition of ``appropriate sensitive
[[Page 7767]]
marine organisms,'' which are to be used in suspended phase tests under
Sec. 227.6(c)(3), to mean at least two species that together are
representative of the following types of organisms: phytoplankton or
zooplankton, crustacean or mollusk, and fish. The proposed language
would clarify, consistent with current agency guidance, that the use of
two such species is sufficient.
The purpose of today's proposal is to clarify the regulatory
language that was interpreted by the Third Circuit in a different
manner than EPA intended. The Agency is not changing the evaluative
procedures that are currently used and set out in program guidance and
thus is not changing the level of environmental protection of the ocean
dumping program. EPA is allowing for a thirty day period for comment on
this proposal. The Agency believes a thirty day comment period is
adequate because the proposal would clarify the regulations in a manner
consistent with existing practices. The Agency also is working on more
comprehensive amendments to the ocean dumping regulations in order to
further update them and improve their clarity. The Agency anticipates
issuance of a proposal later this year.
B. Discussion
(1) Bioassay provisions
The mere presence of contaminants or pollutants in material
proposed for disposal does not in itself reveal the potential for
adverse effects on marine life, or whether pollutants are even present
in forms that are bioavailable (Reference 1 and 2). Because of this,
exposure of organisms to material proposed for dumping in laboratory
tests or other biological effects-based assessments are conducted to
determine the potential for adverse biological effects resulting from
contaminants that may be present in the material (Reference 3). The
determination of both when and how to perform such evaluations often
involves complicated scientific and technical judgment. The Agency, as
described below, has provided technical guidance to identify acceptable
procedures for evaluating the potential biological effects of material
proposed for dumping.
In 1977, EPA and the Corps provided national technical guidance on
procedures for performing biological evaluations of dredged material in
the manual entitled ``Ecological Evaluation of Proposed Discharge of
Dredged Material into Ocean Waters'' (``the Green Book'')(Reference 4).
EPA provided national technical guidance for other material in the
manual entitled ``Bioassay Procedures for the Ocean Disposal Permit
Program(``the Blue Book'') in 1977 (Reference 5); the Green Book was
revised in 1991 (Reference 6). The guidance describes scientifically
and technically appropriate testing and evaluations to assess the
potential biological effects of material proposed for ocean dumping.
Because such guidance has been issued, today's proposal would update
the regulations to delete provisions in Sec. 227.6(e) referring to such
guidance as being under development and providing interim criteria, as
well as similar language from Sec. 227.27(b) and (d).
As previously discussed, the existing regulations provide that
bioassays shall be run ``in accordance with'' approved Agency
procedures. This language was intended to reserve Agency technical
discretion on when and how to perform such bioassays. However, the
Third Circuit opinion has cast some doubt on this issue. To better
clarify that the Agency has reserved its discretion in establishing
procedures for when and how to perform bioassays, today's proposal
would add a new definition of ``bioassay'' in proposed Sec. 220.2(j) to
make clear that references in the regulations to ``bioassays'' means
only those that have been approved for use by EPA, or in the case of
dredged material, approved by EPA and the Corps. The intent is to make
clear that in the absence of approved procedures, bioassays are not
required by the regulations. As a conforming matter, today's proposal
would also delete language in existing Secs. 227.6(c), (c)(2), c(3),
and 227.27(a)(2) and (b) referring to bioassay procedures approved by
the Agency. The language that is proposed to be deleted becomes
redundant or unnecessary in light of the proposed definition of
``bioassay.''
The proposed definition of bioassay further makes clear that the
Agency has reserved its discretion on the evaluative procedures to be
used by employing the term ``effects-based evaluations.'' This would be
done to avoid any implication that the regulations intend to mandate
only the exposure of organisms to materials or contaminants in
laboratory tests. While such tests provide one way to evaluate the
toxicity and bioaccumulation potential of contaminants from a material
proposed for ocean disposal, they are not the only way to make such
assessments. Improvements in the sciences of toxicology and risk
assessment allow conclusions to be made about the potential
environmental impacts of ocean disposal of a material without actually
running such laboratory tests in all cases. As a result, an adequate
evaluation of material proposed for ocean dumping does not always
require the performance of specific laboratory biological tests for
each material or contaminant evaluated. In general, as will be
explained below, the following biological effects-based approaches can
be used or combined to evaluate material proposed for ocean disposal:
(1) Laboratory tests of organisms exposed to the material or results of
such tests run on similar material; (2) toxicological and/or risk
assessment models; or (3) screening evaluations that use highly
protective estimates of exposure and effects assumptions.
As stated above, exposure of organisms to materials or contaminants
in laboratory experiments provide one way to measure the potential
effects of dumping the material. Results of such tests on similar
material may also be adequate for determining the potential effects
depending on a number of factors, including, but not limited to, the
following: (1) Whether the methods used are consistent with currently
approved test procedures; (2) whether organisms tested include those
identified in 40 CFR 227.27 (c) and (d), as appropriate; and (3)
whether the characteristics of the material tested are sufficiently
similar to the material to be dumped so that one can reasonably predict
the potential for environmental effects from dumping of the latter
material by extrapolating from the results of testing on the former
material.
The bioavailability of many contaminants in the environment also
can be predicted through the use of toxicological and/or risk
assessment models. For example, the equilibrium partitioning model is
one approach that can be used to predict the bioavailable fraction of a
contaminant in an aquatic sediment (Reference 2). A variation of this
model, called the Theoretical Bioaccumulation Potential (TBP) model,
has been used to screen dredged material for further bioaccumulation
testing (Reference 6). A review of the use of the TBP model in dredged
material evaluations indicates that it is highly protective because of
the use of conservative assumptions in the model (Reference 7). In the
future, incorporation of additional laboratory bioassay and field-
generated information into the TBP model will improve its accuracy and
reliability. In the meantime, however, its conservatism ensures that
using it is an environmentally protective approach (Reference 7).
Finally, conservative assumptions also can be used to predict the
``upper bound'' of potential environmental
[[Page 7768]]
impacts. For example, evaluations can be based on the assumption that
100 percent of a contaminant in a material proposed for ocean disposal
will be bioavailable. This approach can be used for screening chemicals
that might require further evaluation to determine compliance with
water quality criteria by assuming all of the contaminants in the
material are dissolved into the water column during dumping. (Reference
6.) The use of TBP, as discussed above, integrates the use of
toxicological models with conservative assumptions in determining the
bioavailability of contaminants in the material that settles to the
bottom after dumping.
The reference to ``effects-based evaluations'' in proposed
Sec. 220.2(j) is intended to make clear that, as provided for in
approved Agency procedures, the approaches described above can be used
to evaluate the potential environmental effects of material proposed
for ocean dumping, either as a screening device in lieu of actual
laboratory testing, or in combination with the results of such tests.
At the same time, the language is intended to provide flexibility for
the future in order to assure that as science and technology improve
and other effects-based evaluations are approved for use, they may be
used as well.
In addition, the current ocean dumping regulations provide that
bioassays are to be conducted ``in accordance with'' procedures
approved by EPA and the Corps. In certain cases, there are no approved
laboratory testing protocols available, or as described above, other
evaluative tools provide effects-based information comparable to that
which might be obtained from running a laboratory bioassay. The Third
Circuit opinion, however, could be read as suggesting that even though
Agency-approved bioassay test procedures are not specified, the
regulation still requires laboratory bioassays to be run. Although the
proposed definition of bioassay described above is intended to resolve
this point, in order to further remove any possible ambiguity, today's
proposal would make a change in regulatory language in Sec. 227.6(c).
The proposed change would replace a reference to performing bioassays
``in accordance with'' approved Agency procedures, to performing
bioassays ``when bioassay procedures have been approved.''
Finally today's proposal would also amend Secs. 227.6(c)(2) and
(3), 227.27(b), and 227.27(c), which currently provide that bioassays
``shall be conducted'' using approved organisms and procedures. To
avoid any possible ambiguity that this might mandate only the use of
laboratory tests on organisms exposed to the material proposed for
dumping, today's proposal would make changes in those sections to
clarify that ``if'' such laboratory testing is conducted it shall use
approved organisms and procedures.
In summary, today's proposal is intended to confirm that the Agency
has reserved discretion on how to evaluate material proposed for
dumping. This has been done, as described above, in three principal
ways: (1) by adding a definition of ``bioassay'' that makes clear that
this term means an effects-based evaluation which is to be conducted
only if approved procedures exist for such evaluations; (2) by revising
language to be clear that the Agency has reserved discretion to
identify what, when, and how evaluation processes will be used; and (3)
by clarifying that laboratory tests are not required in all cases.
These changes make clear that the Agency has reserved its discretion in
this complex technical area.
Approved Agency evaluation procedures can be found in the Blue
Book, the Green Book, and Regional implementation manuals, or parties
seeking to use other procedures may seek their approval from EPA, or in
the case of dredged material, from EPA and the Corps. EPA does not
intend to require evaluations that have not been approved, or that are
not useful in a regulatory context. The determination as to the types
of evaluations necessary to assess potential biological effects of
material proposed for ocean dumping involves highly complex technical
issues, and is impacted by evolving changes in the science and methods
underlying such assessments. Today's action by the Agency is intended
to preserve EPA's discretion in this complex technical area to ensure
that the appropriate and up-to-date evaluations as approved by the
Agency are conducted.
(2) Number and types of organisms to be tested
The current ocean dumping regulations define ``appropriate
sensitive marine organisms'' and ``appropriate sensitive benthic marine
organisms'' for use in laboratory tests. The type of organisms used can
impact on the sensitivity of the tests in determining toxicity, and the
existing regulations provide that the organisms to be used represent
three categories of organisms. For the liquid and suspended phases the
organisms to be used are defined in Sec. 227.27(c) ``as at least one
species each representative of phytoplankton or zooplankton, crustacean
or mollusk, and fish species chosen from among the most sensitive
species documented in the scientific literature or accepted by EPA as
being reliable test organisms* * *'' For the solid phase, these are
defined in Sec. 227.27(d) as ``at least one species each representing
filter-feeding, deposit-feeding, and burrowing species chosen from
among the most sensitive species accepted by EPA as being reliable test
organisms* * *''
As discussed above, EPA has described a range of characteristics
that the test species need to represent. The Agency believes this
approach is protective of the marine environment because different
marine organisms are known to exhibit different sensitivities to
environmental contaminants (Reference 8). The Agency's approved testing
allows the use of two different species that together cover the three
species characteristics in 40 CFR 227.27(c) and (d). For example, the
marine worm, Nephtys incisa, is both a deposit-feeder and burrower
(Reference 9), and the amphipod crustacean, Ampelisca abdita, is both a
filter-feeder and deposit-feeder (Reference 10).
The Third Circuit opinion, however, could be construed to indicate
that 40 CFR 227.27(d) requires the use of three different test species
for the solid phase. See, 57 F. 3d 328, 333 n. 2. EPA is proposing
today to remove any ambiguity about the number and type of organisms
specified by Secs. 227.27(c) and (d). This would be done by removing
the words ``one species each,'' and clarifying that what is meant is at
least two species that together are representative of the three
categories of organisms. The change makes clear that the use of two
species representing the three characteristics specified in the
regulations, is acceptable.
C. References
1. ``Effects-based testing and sediment quality criteria for
dredged material'', T.D. Wright, R.M. Engler, and J.A. Miller, in Water
Quality Standards for the Twenty-First Century, EPA-823-R-92-009,
December 1992, pp. 207-218.
2. ``Technical basis for deriving sediment quality criteria for
nonionic organic contaminants for the protection of benthic organisms
by using equilibrium partitioning,'' U.S. Environmental Protection
Agency, EPA-822-R-93-011, Washington, DC, September 1993.
3. ``The use of bioassays as part of a comprehensive approach to
marine pollution assessment,'' Mar. Pollut. Bull. 14:81-84. 1983.
4. ``Ecological evaluation of proposed discharge of dredged
material into ocean
[[Page 7769]]
waters,'' U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers, Second Printing, April 1978.
5. ``Bioassay procedures for the ocean disposal permit program,''
U.S. Environmental Protection Agency, Office of Research and
Development, March 1978.
6. ``Evaluation of dredged material proposed for ocean disposal--
testing manual,'' U.S. Environmental Protection Agency and U.S. Army
Corps of Engineers, April 1991.
7. ``TBP revisited: a ten year perspective on a screening test for
dredged sediment bioaccumulation potential,'' V.A. McFarland and P.W.
Ferguson, in Dredging `94 Proceedings of the Second International
Conference on Dredging and Dredged Material Placement, E.C. McNair,
Ed., American Society of Civil Engineers, 1994.
8. ``Problems associated with selecting the most sensitive species
for toxicity testing,'' J. Cairns, Jr. and B.R. Niederlechner, ``
Hydrobiologia 153: 87-94 (1987).
9. ``Guidance manual: bedded sediment bioaccumulation tests,'' U.S.
Environmental Protection Agency, Office of Research and Development,
ERL-N Contribution No. N111, September 1989.
10. ``Methods for assessing the toxicity of sediment-associated
contaminants with estuarine and marine amphipods,'' U.S. Environmental
Protection Agency, EPA/600/R-94/025, June 1994.
Compliance With Other Laws and Executive Orders
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for regulations
having a significant impact on a substantial number of small entities.
The RFA recognizes three kinds of small entities, and defines them as
follows:
(1) Small governmental jurisdictions: any government of a
district with a population of less than 50,000.
(2) Small business: any business which is independently owned
and operated and not dominant in its field, as defined by the Small
Business Administration regulations under the Small Business Act.
(3) Small organization: any not for profit enterprise that is
independently owned and operated and not dominant in its field.
As discussed below in the discussion of Executive Order 12866,
today's proposed rule does not impose economic burdens. Accordingly,
EPA has determined that today's proposed rule would not have a
significant impact on a substantial number of small entities, and that
a Regulatory Flexibility Analysis therefore is unnecessary.
B. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record keeping requirements affecting ten or
more non-Federal respondents be approved by the Office of Management
and Budget. Since today's proposed rule would not establish or modify
any information or record keeping requirements, it is not subject to
the requirements of the Paperwork Reduction Act.
C. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant,''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or
more, or adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs, or the rights and obligations,
of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866, and is therefore not subject to OMB review.
D. The Unfunded Mandates Reform Act, and Executive Order 12875
Under the Unfunded Mandates Reform Act (UMRA) of 1995, signed into
law on March 22, 1995, EPA must prepare a written statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any year. The UMRA defines a ``private sector
mandate'' for regulatory purposes as one that, among other things,
``would impose an enforceable duty upon the private sector.'' EPA has
determined that today's proposed regulation does not impose any
enforceable duties upon the private sector. Therefore, this proposed
rulemaking is not a ``private sector mandate,'' and is not subject to
the requirements of the UMRA.
Further, EPA has determined that today's action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This proposed rulemaking should have minimal
impact on the regulatory burden imposed on permittees, because the
proposed rulemaking merely clarifies ocean dumping testing
requirements. Thus, EPA has determined that an unfunded mandates
statement is unnecessary.
Executive Order 12875 requires that, to the extent feasible and
permitted by law, no Federal agency shall promulgate any regulation
that is not required by statute and that creates a mandate upon a
State, local, or tribal government, unless funds necessary to pay the
direct costs incurred by the State, local, or tribal government in
complying with the mandate are provided by the Federal government. EPA
has determined that the requirements of Executive Order 12875 do not
apply to today's proposed rulemaking, since no mandate is created by
this action.
List of Subjects
40 CFR Part 220
Environmental protection, Engineer Corps, Water pollution control.
40 CFR Part 227
Environmental impact statements, Water pollution control.
Date: February 23, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in this preamble, Parts 220 and 227 of
Title 40 of the Code of Federal Regulations are proposed to be amended
as follows:
PART 220--[AMENDED]
1. The authority citation for Part 220 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 220.2 is amended by adding paragraph (j) to read as
follows:
Sec. 220.2 Definitions.
* * * * *
(j) Bioassay means such effects-based evaluations as may be
approved by EPA,
[[Page 7770]]
or in the case of dredged material, by EPA and the Corps of Engineers,
for use in evaluating whether material has the potential to cause
acute, chronic, or other sublethal effects following dumping.
PART 227--[AMENDED]
3. The authority citation for 40 CFR Part 227 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
4. Section 227.6 is amended:
a. In paragraph (a) introductory text by removing the words ``(f),
(g), and (h)'', and adding, in their place, the words ``(e), (f), and
(g)''.
b. In paragraph (c) introductory text, by removing from the first
sentence the words ``according to procedures acceptable to EPA, and for
dredged material acceptable to'', and adding, in their place, the words
``when bioassay procedures have been approved by EPA, or for dredged
material, approved by'';
c. By removing the second and third sentences of paragraph (c)(2)
and of paragraph (c)(3) and by adding a new sentence in their place in
each paragraph, to read as follows:
Sec. 227.6 Constituents prohibited as other than trace contaminants.
* * * * *
(c) * * *
(2) * * * If these bioassays involve laboratory testing of
organisms, they shall be conducted with appropriate sensitive marine
organisms as defined in Sec. 227.27(c), and the procedures used will
require exposure of organisms for a sufficient period of time and under
appropriate conditions to provide reasonable assurance, based on
consideration of the statistical significance of effects at the 95
percent confidence level, that, when the materials are dumped, no
significant undesirable effects will occur due to chronic toxicity of
the constituents listed in paragraph (a) of this section; and
(3) * * * If these bioassays involve laboratory testing of
organisms, they shall be conducted with appropriate sensitive benthic
marine organisms, and the procedures used will require exposure of
organisms for a sufficient period of time to provide reasonable
assurance, based on considerations of statistical significance of
effects at the 95 percent confidence level, that, when the materials
are dumped, no significant undesirable effects will occur due either to
chronic toxicity or to bioaccumulation of the constituents listed in
paragraph (a) of this section; and
* * * * *
e. By removing paragraph (e) and redesignating paragraphs (f)
through (h) as paragraph (e) through (g).
5. Section 227.27 is amended:
a. In paragraph (a)(2), by removing the words ``in a bioassay
carried out in accordance with approved EPA procedures'';
b. In the first sentence of paragraph (b), by removing the words
``using appropriate sensitive marine organisms in the case of the
suspended particulate phase, or appropriate sensitive benthic marine
organisms in the case of the solid phase;'';
c. In paragraph (b), by removing footnote 1 and by revising the
last sentence to read as set forth below.
d. By revising paragraphs (c) and (d) to read as follows:
Sec. 227.27 Limiting Permissable Concentration (LPC).
* * * * *
(b) * * * If these bioassays involve laboratory testing of
organisms, they shall be conducted with appropriate sensitive marine
organisms in the case of the suspended particulate phase, or
appropriate sensitive benthic marine organisms in the case of the solid
phase.
(c) Appropriate sensitive marine organisms means at least two
species that together are representative of the following types of
organisms: phytoplankton or zooplankton, crustacean or mollusk, and
fish. These organisms shall be chosen from among the most sensitive
species documented in the scientific literature or accepted by EPA as
being reliable test organisms to determine the anticipated impact of
the wastes on the ecosystem at the disposal site. If the bioassays
involve laboratory testing of these organisms, they shall be run for a
minimum of 96 hours under temperature, salinity, and dissolved oxygen
conditions representing the extremes of environmental stress at the
disposal site, except that phytoplankton or zooplankton may be run for
shorter periods of time as appropriate for the organisms tested at the
discretion of EPA, or EPA and the Corps of Engineers, as the case may
be.
(d) Appropriate sensitive benthic marine organisms means at least
two species that together exhibit filter-feeding, deposit-feeding, and
burrowing characteristics. These organisms shall be chosen from among
the most sensitive species accepted by EPA as being reliable test
organisms to determine the anticipated impact on the site.
[FR Doc. 96-4705 Filed 2-27-96; 11:06 am]
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