referenced sediments as well as on field samples.
The manuals also specify the origins of the sediments. Control sediment must be supplied by the laboratory conducting the testing. Reference sediment must be taken from a specified location at the Mud Dump Site. Locations for field sampling were to be provided to the applicant by the New York District of the Corps.
Pursuant to these requirements, Aqua Survey supplied control sediment for use in the solid phase bioaccumulation study. Aqua Survey also coordinated the retrieval of reference sediment, which was taken from the Mud Dump Site at the Loran coordinates specified in the Regional Guidance.
Because the material to be tested had been completely removed from Reaches B, C, and D of Port Newark to the Mud Dump Site by the time the July 6 Order was issued, the Corps instructed the Port Authority to take nine core samples and a tenth composite sample of dredged sediments from the Mud Dump Site. The New York District Office of the Corps specified the precise locations at which the test samples would be retrieved. Those locations were specified on a map provided to the Port Authority by the Water Quality Compliance Branch of the Corps.
To confirm the locations set forth on the map, on July 23, 1993, the Port Authority submitted the Loran coordinates of the sampling locations to the Corps. In its letter of July 23, the Port Authority also identified the three laboratories that would conduct the physical, chemical and biological testing of the sediments. The Work/Quality Assurance plans of the laboratories were submitted to the Corps for approval pursuant to Section 3.0 of the Regional Guidance.
On July 29, the Port Authority submitted to the Corps a Sampling Plan, which described the method for retrieving field samples at the Mud Dump Site.
Following the sampling, the Port Authority provided the Corps with reports identifying the locations and depth of sediment samples taken from the Mud Dump Site. According to the boring reports, the dredged material was located 74-81 feet below the surface of the ocean.
By letter of August 5, 1993, John Hartmann of the Corps returned comments on the Sampling Plan and Work/Quality Assurance Plan of Aqua Survey. The letter stated: "We conditionally approve that initiation with your acknowledgement that the attached comments will be incorporated into testing procedures." The attached comments appeared to suggest that separate core liners should have been used to retrieve each sample. The Port Authority indicated its willingness to resample the test sediments. Having determined that cross-contamination was not a concern in this case, Mr. Hartmann of the Corps assured the Port Authority that the "single deviation from preferred procedures" did not warrant resampling.
2. Physical and Chemical Analysis of Sediments
The 1991 Green Book and the Regional Guidance require physical and chemical analysis of sediment samples, including tests for (1) grain size, (2) percent moisture, (3) total organic carbon, and (4) the target analyte -- in this case, dioxin (2, 3, 7, 8-TCDD). In its July 21 letter, the Corps specifically asked the Port Authority to test for these characteristics. This testing was conducted and is described in Section One of the Lab Report, entitled "Bulk Sediment Report."
3. Selection of Species for Sediment Testing
On their face the MPRSA regulations appear to require that different species be used as test organisms both for the suspended particulate phase and for the solid phase of the sediment. See 40 C.F.R. § 227.6(c)(2), (3).
a. Testing of the Suspended Particulate Phase
Testing of the suspended particulate phase of dredged sediment attempts to simulate conditions in the water column during the course of disposal of the material. The tests are, therefore, performed in a mixture of one part sediment to four parts water, using "appropriate sensitive marine organisms as defined in § 227.27(c) . . . ." 40 C.F.R. § 227.6(c)(2). According to Section 227.27(c).
Appropriate sensitive marine organisms means 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 to determine the anticipated impact of the wastes on the ecosystem at the disposal site.
These are marine, or pelagic, organisms that can be found in the water column and are, therefore, exposed to sediments as they are dumped.
The 1977 Green Book provides technical guidance for conducting bioaccumulation tests on appropriate marine organisms found in the water column based on a 4-day (96 hours) exposure to the dredged material.
In conformance with the 1977 Green Book, the Corps selected marine organisms for 4-day suspended particulate testing. By letter of July 21, the Corps instructed the Port Authority that the organisms selected were inland silverside menidia and hard clam mercenaria for 4-day bioaccumulation testing. The menidia appears in the fish column in Table D1 of the 1977 Green Book. The mercenaria appears in the crustacean column. By letter of July 23, the Port Authority requested that, in conformance with 40 C.F.R. § 227.27(c), a zooplankton also be selected. After consultation with Aqua Survey, the Corps determined that the Artemia salina was an appropriate zooplankton for testing.
Testing in the suspended particulate phase requires comparison of the effects, if any, upon test animals in a control sediment to test animals in the dredged sediment. As set forth in the 1977 Green Book, the three selected organisms were acclimated to dilution water and test temperature at the laboratory. As required by the 1977 Green Book, dilution water was obtained from Manasquan Inlet, New Jersey. The testing was conducted using nine replicates of a dilution water control, and three replicates each of 10%, 50% and 100% suspended phase material. Suspended particulate phase samples were prepared by mixing test sediment and dilution water in a 1:4 ratio for thirty minutes using a high-speed mixer. The resulting slurry was allowed to settle for one hour; decanted and labelled 100% suspended phase. Dilutions of this elutriate were made by volumetric mixing with dilution water to generate 10% and 50% elutriate.
b. Testing of the Solid Phase
Testing of the solid phase of sediments attempts to simulate conditions at the bottom of the ocean, after the sediment has settled. Accordingly, the tests are performed on "appropriate sensitive benthic marine organisms," 40 C.F.R. § 227.6(c)(3), which are reliable test organisms that live on the ocean floor. "At least one species each representing filter-feeding, deposit feeding, and burrowing species chosen from among the most sensitive species accepted by EPA," are the benthic organisms to be used for testing. 40 C.F.R. § 227.27(d).
The 1991 Green Book and Regional Guidance provide further information with respect to the categories of test species identified in § 227.27(d). The 1991 Green Book recognizes that the "categories of species are broad and overlapping" and recommends testing of a burrowing polychasete and a deposit-feeding bivalve mollusc. 1991 Green Book § 12.1.1 (Species Selection and Apparatus). The Regional Guidance notes that the New York District of the Corps "may approve of substitute organisms and/or require that additional organisms be tested, depending on circumstances." Regional Guidance, Table 4-5, at 4-15.
The defendants had previously tested one benthic organism -- the Nereis virens, a burrowing species -- for bioaccumulation. In accordance with the 1991 Green Book and Regional Guidance, to comply with the Court's order, the Corps instructed the Port Authority to test two additional benthic organisms in the solid phase: (1) Palaemonetes pugio (grass shrimp), a deposit-feeding species; and (2) Macoma nasuta (clam), a filter-feeding and deposit feeding bivalver mollusks.
As required by the Regional Guidance, animals used in this test were field collected adults and appeared to be in good condition. Testing was conducted using three replicates each of a control sediment and five replicates each of a reference sediment and undiluted test sediment. Palaemonetes pugio has been known to become cannibalistic under test conditions. Thus, in order to ensure that adequate tissue would be available, the entire Palaemonetes pugio exposure was run in duplicate. The data from the bulk sediment analysis, based on the nine core samples and a tenth composite, indicate a mean level of 23.5 pptr dioxin on a wet weight basis. This compares to a mean level of 35.2 pptr in Reaches B, C and D found in the sediments in March 1993.
The average bioaccumulation of dioxin in the additional test species is set forth in the table below:
Species Concentration (pptr)
Artemia salina 2.8
Palaemonetes pugio 3.8
Macoma nasuta 2.1
These levels of dioxin are lower than the levels found in the Nereis virens, which I previously determined to be "at or below the threshold of significant sublethal effects." July 6 Order at 14. The average bioaccumulation for the Nereis virens was approximately 8.4 pptr across the three reaches. The concentrations found in the tissue of the five additional organisms are significantly less than the interim guideline of 10 pptr set by the Interagency Dioxin Committee.
C. The Statutory and Regulatory Scheme
By statute, the Secretary of the Army is authorized to issue permits for ocean dumping of dredged materials:
Subject to the provisions of subsections (b), (c), and (d) of this section, the Secretary may issue permits, after notice and opportunity for public hearings, for the transportation of dredged material for the purpose of dumping it into ocean waters, where the Secretary determines that the dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.
33 U.S.C. § 1413(a).
Part 227 of 40 C.F.R. Ch. 1 (Environmental Protection Agency) governs the process of applying for and reviewing applications for permits. The regulations most pertinent to this case will be discussed below.
Section 227.6(a)(5) prohibits ocean dumping on a non-emergency basis of known or suspected carcinogens. Dioxin is a known carcinogen. By its terms § 227.6(a) does not bar ocean dumping of trace contaminants and it contains certain exclusions from its prohibitions. The exception upon which defendants rely in this case is contained in § 227.6(f).
Section 227.6(b) sets forth the criteria for classification as a trace contaminant:
(b) These constituents will be considered to be present as trace contaminants only when they are present in materials otherwise acceptable for ocean dumping in such forms and amounts in liquid, suspended particulate, and solid phases that the dumping of the materials will not cause significant undesirable effects, including the possibility of danger associated with their bioaccumulation in marine organisms.