HomeMy WebLinkAbout06/03/2004 letter to EPA*A,
STATE OF NEW YORK
DEPARTMENT OF STATE
41 STATE STREET
ALBANY, NY 1 2 2 3 1 -000!
GEORGE E. PATAKI
C OV ERUOR
Ms. Linda M. Murphy
Director, Office of Ecosystem Protection
U.S. Environmental Protection Agency, Region I
1 Con-ress Street. Suite 1100
Boston, Massachusetts 02114-2023
Dear Ms. Murphy:
RANDY A. DANIELS
SECRETARY OF STATE
June 3, 2004
Re: F-2004-0228 DA
U.S. EPA - Designation of Open -water Disposal Sites - Long
Island Sound
Obiection to Consistency Determination
The Department of State (DOS) has completed .its evaluation of the U.S. Environmental Protection Agency's
(EPA) consistency determination relating to the designation of two dredged material disposal sites in Long Island
.Sound (the Sound). Pursuant to 15 CFR § 930.4l(a), DOS objects to EPA's consistency determination on the
basis that it has failed to provide sufficient information and further, based on the information that has been
provided, finds that it is not consistent to the maximum extent practicable with applicable policies of the New
York State Coastal Management Program (CMP).
The Department of State has consistently requested that a dredged material management plan be developed prior
to; or in conjunction with, the current EPA proposal to designate open -water disposal sites in Long Island Sound.
The Department has also consistently identified the need for, and identification of,'alternative dredged material
disposal options and re -use opportunities which, when employed systematically and comprehensively throughout
the Long Island Sound region, would reduce, or eliminate, the need for open water disposal of dredged material.
EPA has not satisfactorily addressed these requests or provided such information.
Background
On March 8, 2004, the DOS received EPA's determination that the designation of two Long Island Sound
dredged material disposal sites under the Ocean Dumping Act would be consistent with New York's Coastal
Management Program. These two disposal sites- the Central Long Island Sound (CLIS) site and the Western
Long Island Sound (WLIS) site - would be situated in the Connecticut portion of the Sound along the
Connecticut/New York border. The receipt of EPA's determination started a review period for DOS to either
concur with or object to the consistency determination. The conclusion of the review period was extended until
June 5, 2004 by agreement with the EPA.
WWW. DOS. STATE. NY -US 7 E-MAIL: INFO@OOS STATE NY US
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Ms. Linda,M. Murphy
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Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA) bf 1972; more commonly referred to as
the "Ocean Dumping Act" (ODA) (33 USC § 1412), authorizes the EPA,Administratol to designate sites where
ocean disposal may be permitted. In 1980, Congress amended the. ODA to -subject the dumping -of dredged
material in Long Island Sound by federal agencies, or by private parties dumping more than.25;000 cubic yards of -
dredged material; io the -site selection, site designation and environmental testing'criteria of the ODA (3��USC §
1416(f), known as the"Ambro. Amendment").
Pursuant to the Coastal Zone. Manager Sent Act (CZMA),. %ach-Federal agency activity within or'outside the
coastal zone'that affects any land -or water use or natural resource•of the coastal zone shall be carried out in a
manner which is consistent to the maximum extent-practicabic•.with the enforceable policies of.appro�ed State
management programs." (16 USC § 1456 (c)(l)(A)) The CZMA regulations define the phrase -"consistent to the
maximum extent practicable" to.mean "fully consistent with the enforceable policies of management programs
unless full- consistency is prohibited by existing law applicable to the Federal agency" (15 CFR § 930.32(a)(I-)).
Federal agencies cannot use a general claim•of a lack of funding.or insufficient appropriated funds, or a failure to
include the cost of being fully consistent. in Federal budget and planning processes.as the basis for not being
consistent to the maximum extent practicable with an enforceable policy of a state management program (see, 15.
CFR § 930.32 (a)(3))•' ;
Moreover, a federal„agency:s consistency determination mustbe.based on an evaluation of the relevant provisions
of a state's management program.. It should be prepared, only after sufficient information has been obtained to
reasonably determine the consistencyof the project, but_before'-the federal agency reaches significant point of
decision; making in its review process.
With all relevant information to fully assess the likely impacts
Here, while EPA has failed to provide New York
on the -Coastal Zone of th'e proposed federal action in designating these two.dump siwjn the Sound, the,
information that EPA has •submitted demonstrates that designation and subsequent use of.these sites will
adversely affect coastal resources and uses -and will contravene the enforceable policies of the CMP.
Accordingly, the State of New.'York:findsthat the proposed federal actin is not consistent to the.maximum
extent practicable with the State's coastal management program.
There are currently three active dredged material disposal sites in use in Long Island.Sourid: Western Long Island
Sound. Disposal, Site (WLIS), Cornfield. Shoals Disposal Site (CSDS), and New London Disposal Site (NLD$). .
Authorization for disposal at the Central Long..island Sound Disposal Site (CLIS) expired on February 18, 2004,
at the end -of a second 5 -year exception under the ODA: In March 2002-; the U.S. Army Corps of Engineers (the
Corps), as the relevant permitting agency under the ODA,.and EPA made a determination to narrow the Zone of
Siting Feasibility (the area in which existing dredged material disposal sites may be located) to initially consider
the potential designation of one or more sites in the western and central regions of Long Island Sound, deferring
review of the eastern region to a later date.
The two disposal sites in the Zone. of Siting Feasibilitycurrently proposed for designation are the CLIS and
WLIS sites. CLIS`.is approximately'2 nautical miles by 1 nautical mile in size and is situated 5:6 miles south of
Ms. Linda M. Murphy,
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'South" End Point, Connecticut: Water depths at CLIS_currently range from 59 feet to 74 feet below Mean 'Sea
Level (MSL). Since, 1.94I-XLIS has received close to 14 million cubic yards of dredged material(FE1S Executive
Summary p. ES -5). WLIS is�a 1.2 by1.3 nautical mile rectangular disposal area'situated approximately:_nautical
miles north of Lloyd Point, New York, and 2.5miles south of Long -Neck Point, Connecticut. Water depths at
WLIS range from 79 feet to l IS feet below MSL. Between 1982 and 2001, WLIS ?eceived.approximately,1.7
millions cubic yards of dredged material (FEIS .Executive.Summary, p. ES -4). _
Long island .Sound is a 110 -mile -long, predominantly eocloscd,.tidal estuary atthe interstate boundaries of New
York; Connecticut, arnd.Rhode Island: It is hydrologically connected to the Atlantic On, at its eastern.end
through Block Island Sound; and to New York. Harbor at its western end through .the East River at Throg's Neck
and the New York City incorporated'municipal boundary.
As noted by the U.S. Geological Survey (USGS), the circulation in Long Island Sound, which is controlled by an
.east -to -west weakening of tidal -current speeds coupled with the westward -directed estuarine'bottom drift, has
producedd-a succession of'sedimentary environments'. The succession begins with erosion at the narrow eastern
entrance to the Sound, changesto an extensive area of coarse-grained be'dioad transport in the east -.central Sound,
passes into a contiguous band of sediment sorting (where the estuary noticeably widens); and ends with broad
areas of fine-grained deposition on the flat basin floor in the central and western Sound. .
Long Island Sound is one ofthe. most productive estuarine waters, in the world.,It provides: valuable breeding,
nesting and feeding habitats for myriad aquatic, avian and animal species, and provides, commercial fishing,
tourism and recreational -benefits to the, communities along its shoreline.. The Long:Island Sound region is also
one of -the most densely populated areas in North America; more than 8.4 million people live in the Sound's
watershed (FEIS ES -B): The Sound is used for water -dependent industries, recreational boating, commercial''and
recreational fishing and shell fishing,. and recreational beach -going. ' It is one of New York's most valuable natural
resources.. For these reasons, the,cleanliness of Long Island Sound is of paramount importance.. While. there is a
recognized need for dredging in order to maintain navigable water ways, the designation of dredge spoil disposal
sites in the Sound and the consequent -dumping of sediments, as currently proposed, will degrade the Sound and
threaten its environmental 'resources And economic viability.
As noted .by the Second Circuit Court of Appeals in Town offluntinglon v. Marsh -4-859 F.2d 1134, 1135 (2nd
Cir. 1988): "
The Long Island Sound (the "Sound") is host to a -myriad of recreational'and industrial uses, -including
swimming, boating and fishin&'Recreational.users, commercial fisheries and environmentalists share a
sometimes uneasy co=existence with use of the Sound as a -waste dumping ground. Marinas and -harbors'
which line the Sound must be dredged periodically to provide safe berthing for pleasure craft,
commercial fishing boats, and military ships: Tlie spoil -from these dredging operations has for decades
been dumped into. the :Sound: This litigation arises out,of the ongoing effort of citizens and the federal
government to balance the use of the Sound as a waste dumpsite with the need.to protect its increasingly
fragile waters.
"®ue..to the enormous population, the Sound is used heavily and its sea floor has been impacted by human
activities. There are many-benthic habitats in the Sound that supportlarge commercial and recreational fisheries.,
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Ms. Linda M..Murphy
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Sediments of the Sound area sink for wastes and contaminants from various -sources such as riverine input,
wastewater treatment plants, urban and agricultural runoff, and sediment abd waste disposal" (Maps of. Benthic
by Ellen Thomas, Taras Gapotchenko, Johan C. Varekamp, Ellen L. Mecray and Marilyn R. Buchholtz ten
Brink). ,
As noted in -an article entitled, "Biogeochemistry and Contaminant Geochemistry of Marine and
Estuarine Sediments, New Haven, Connecticut;" (Kruj e & Benoit 2002): "The urbanized shore areas of Long
Island Sound in. the vicinity -of New Haven; Connecticut have a long history of exposure to point and non -point
sources of. pollution, New Haven having been .one of the birthplaces of -the industrial revolution. As an
unintended consequence of,such activities, •thc region's scdimentary'systems have incorporated a complex
mixture of organic and in contaminants. The tidally -influenced Quinnipiac,>Mill and' West Rivers empty
into the harbor, the shoreline of which is the site of docking facilities, a petroleum tank farm, a power generation
station, sewage treatment facilities, a busy interstate. highway,'.housing and park land. The shi,pping chapnel
leading into the inner:harbor is maintained by periodic dredging."
EPA maintains that.degradation need not occur as aresult of dredged material disposal; "The disposal of'
uncontaminated dredged materials at ocean.sites.that have been properly sited 'using the MPRSA criteria (see
Section 1.2.2) can. be managed.such that environmental damage does not occur. Clearly, however; the ,
sedimentary environment that is intended for dredging and subsequent disposal at these ,proposed sites is not. -
uncontaminated.
Long Island Sound, his historically had a rich fishery but in"recent years the western part of the Sound is
increasingly deficient of marine life. It is unclear why this -is happening. Before EPA designates disposal sites in
the Sound, the cause of the decline in fisheries should be examined -and understood." This is a crucial failing in
EPA's consistency determination, since protection of fishing resources is an inPortani'part-of New York's
Coastal Management Program.
As reported -by the New York Sea Grant Institute:
Since Fall. 1999,. the state of the Long Island Sound .lobster fishery has been in question. Lobsters,
have been experiencing unprecedented -,outbreaks, of disease that have resulted in massive
mortalities, particularly in the. Sound's. western•basin. At the same time, lobsters in the eastern
Sound have been suffering from "shell disease," a. bacteriah infection that has- been around for
awhile but appears to have greatly increased, „
In late summer and fall of 199931-. the States of'Connecticut and' New York began receiving reports from lobster
fishers of dead,, dying and.excessively lethargic lobsters in their catches.. By late fall 1999, lobster landings in
western Long Island Sound are reported to have decreased by as much as 90% to 100% and by 30% in central
and eastern tong Island Sound: Using a federal grant through .the -Long Island Sound Lobster Initiative of the -
New -York and, Connecticut SeaGrant, researchers at the University of Connecticut found four chemicals known
as alkylphenols in both lobsters and marine sediments. All four ace known endocrine. disruptors in vertebrates,
which cause changes in hormones controlling basic physiological.processesi such as reproduction: All four were
found- in lobsters from Long; Island Sound and were shown to affect the endocrine systems oftest organisms.
o
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.Much higher levels of these four endocrine.disrupting.alkylphenois were found -in the sediments themselves, than.
in the sampled lobster tissue.
The commerciaC lobster die -.off has related- socio-economic. costs. During the recent die -off, up to 50% of
commercial lobster fishers went;out of business and'many more simply gave.up foi'the seaso0.after determining
that.the effort andoperational expense were not justified by the scant harvest of marketable lobster. As recently
As 2001, lobster trawls continued to reflect reduced numbers of lobster with the reported landings being the 4th
lowest in 18 years of survey data (NY -Ct. Sea Grant,Long Island Sound Lobster Initiative, March 2002). New
York landings of lobster from the Sourid (86°l0 of New York's total lobster catch) have decreased by eight million
pounds in the six years .from 1996 to 2002 (NOAA's National Marine Fisheries Service, Marine Fisheries Annual
Landings Report).
.The die -off and shell disease occurred soon.after 1.2 million cubic yards of sediment contaminated with dioxin
and other carcinogens were dumped at the New London Disposal Site in 1996. None of the existing studies on
this matter have"looked at the correlation between contaminants introduced through dredged, material disposal
and lobster disease. The latest report, from "Lobster Health News" (Spring 2004, Sea Grant) does not provide
reasons for the mortalitiesand disease.'
Over the past three decades, major efforts have been undertaken by -government and the general public to
impiove the -quality of the Sound, -and limit the open®water disposal of dredged materials: The need to improve
the quality'ofthe1ong Island Sound ecosystem is reflected -in: the Long Island Sound Regional Study by the
New England River.Basins Commission in the ,1970's; an Interim Dredged Materials Disposal Plan in the early
198Ts that identified the need tolimit dredged materials.disposal and,develop a comprehensive dredged materials
management plan for the Sound; Congressional amendments -to the federal Ocean Dumping Act limiting the.
disposal of contaminated materials in the Sound; the Sound's designation as an Estuary ofNational Significance
pursuant to the National Estuary Program and the subsequent undertaking of the Long Island Sound Study and
development of a Comprehensive Conservation and ManagementPlan (CCMP).for the Sound.
Most recently, the U.S. Department of Commerce concurred with the development. and incorporation of the State'
of New York's Long Island Sound Regional Coastal Management Programinto the CMP, which. includes
enforceable policies reflecting the findings, needs, and objectives of the pubht.interest in the Long Island Sound -
region. On October 10, 2001, the _Long Island. Sound Regional Coastal Program became. effective as a formal
amendment to the CMP. Activities which may effect the uses and resources of the Long Island Sound coastal
.area are•subject to consistency with the CMP. The NYS Long Island Sound Regional Coastal Management
Program establishes specific policies governing federal and State -activities affecting the resources and -Uses -of the
Sound. EPA's,proposed activity, would have significant, adverse effects to the.Sound on both a short and
long-term basis. The need to .develop and address alternatives to the disposal of contaminated dredged.materials
in gong Island Sound, in -order toy improve water quality in the Sound and remediate degradation from past
practices, is identified in all ofthese'ef forts.
In addition; several municipalities. on'the NYS Sound shore employ approved local waterfront revitalization
programs (LWRPs) as amendments'to the CMP. The municipalities with approved LWRPs identified by EPA
are: the Village of Port Chester; the City. of Rye;. the Village of Mamaroneck; the Town of Mamaroneck and the
Village of Larchmont-{joint program); the City ofNew York; the Village of Bayville;.the Village.of Lloyd
Ms. Linda M.Murphy
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Harbor; the Town of Sniithtown;.the Villages of Head -of -the -Harbor and Nissequogue (joint program); .the
Village. of Greenport; and the Village.of Sag Harbor. For direct federal agency activities that affect.land'or water
uses and resources in the coastal: area covered by an.LWRP, such local programs must -be used by EPA in its
determination of the consistency of its proposal with the NYS GMP and relevant approved.LWRPs, and, by' DOS
in its, review of that determination. Here; again, EPA's consistency determinatioti'is deftcieeuait that,it fails to.
address theLWRPs, without explaining why the dump sites chosen will not have significant impacts on local
waterfront.revitalization efforts.
I. Information Deficiencies
In the F£IS, EPA expresses.a desire to assess, in a timely manner, the appropriateness of maintaining
"operational continuity" and continued use of a central LIS disposal site. The Department's review of EPA's
consistency determination finds that -this may well be. the driving motivation for pushing ahead with site
designation when studies of environmental problems have.not been adequately conducted. and solutions to them
have not been considered.
The State of New York objects to EPA's consistency determination because it provides inadequate information
and an incomplete. record for determining the coastal effects of the proposed designations and subsequent
disposal of dredged material in'Long Island Sound. ' As set forth in detail below, EPA's consistency '
determination does not include, or reference, a detailed description of coastal effects sufficient to support its
deterrhinatiom. The consistency determination, DEIS and MISfail to describe the cumulative and secondary,
direct and indirect effects and impacts. on New York State's. coastal land and water uses and resources.
EPA's determination and information submission is deficient:, a) by failing to discuss in its consistency
determination how open -water placement of dredged material is consistent to the maximum extent practicable;
with.New York's,CMP; b) by failing to discuss decontamination technologies; upland and other beneficial uses
of dredged material as alternatives to open water disposal; c) by failing to conduct a cumulative analysts of
dredging events and.other contaminant inputs in the Sound; and d), by failing to provide-a'strategy for
comprehensively managing dredged material for the Long Island Sound region in a manner which is consistent,
to the maximum extent. practicable with New York's CMP:
A: Consistency Determination
EPA has failed to submit information which.demonstrates that the proposed designations of the CLIS and WLIS
dump sites will be consistent -to the maximum extent practicable with the New_York CMP. From a procedural and
substantive standpoint, EPA.cannot make, or support, such'a conclusion.
EPA's consistency determination-fails.to address contamination,in the ambient environment and inadequately
considers important data. EPA's consistency determination should identify known, understood and reasonably
foreseeable .beneficial and adverse effects of this activity;. commensurate with the National Environmental Policy
Act and.required by the Coastal Zone Management Act of 1972, as.amended: In. particular;, EPA should have
analyzed the range of parameters that would be affected by designation of -disposal sites and dumping activity
including, but not.limited to:
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Lphysical parameters such as living space (initnediate burial of, and benthic,changes to, Iiving,space),
circulation (changed as a result of.changes in bathymetry caused by dumped material), turbidity.(from_ the
discharge and resuspension of fine sediments during and after initial dumping),. morphology, substrate type, and
erosion and sedimentation, rates as dumped material.winnows;
2. - biological parameters such as community structure, food chain relationships; species.diversity,
predator/prey relationships, population size, mortality rates, reproductive rates; meristic features, behavioral.
patterns and migratory patterns; and'
3. chemical'.parameters suchas, dissolved oxygen (which will be reduced in the water column during
duinping activities), carbon dioxide, acidity, dissolved solids (which will increase during dumping activities),'
nutrients (which wil],increase during dumping activities), organics (which .will be increased during and after
dumping activities), and pollutants such-as,heavy metals, toxics, and hazardous materials (which will be released
in the water column during.dumping activities and will be present after dumping is -completed).
4. comparative parameiers.establishing a justification for the continuing practice of dumping dredged
material in Long Island Sound when is has,been-discontinued in the Atlantic Ocean.
S. use of alternatives which minimize the need for dumping.
b. use of methods to minimize sediment sources .which„, in. turn, reduces the need for dredging..
The federal consistency provisions of the CZMA require that EPA provide DOS with a consistency determination
based on actual, as well as reasonablyforeseeable, direct and indirect effects on any coastal use or resource (IS
CFR §930.33(4)(1)): EPA must consider and evaluate the impacts from different dredging projects, together with
natural riverine depositions.
As an example of information that should have been provided by EPA, such as documentation on sediments in
the Thames River, Connecticut which have been traditionallydisposed of at the CLIS site, is relevant and
compelling. Bio accumulation testing.of Thames River sedirrients.reveal that channel sediments near the SUBASE
(homeport siwof.the U.S. Navy's SEAWOLF-class submarines) piers contain materials which could .cause
accumulation of organic contaminants in thetissues of benthie organisms. These contaminants can in turn
bioaccumulate and have more far-reaching environmental_ impacts. Sediments in the river contain varying
concentrations of metals, poly -cyclic aromatic hydrocarbo'ns.(PAH), pesticides, poly -chlorinated biphenyls -
(PCBs) and other chemicals above naturally -occurring background levels. PAHs are the most consistently
encountered contaminant found m. the river. The FEIS prepared 6y the Navy for the SEAWOLF submarine. base.
states that based upon a review of sediment testing in .the river,” [c]oncentrations of PAHs in sediments near piers
and marinas. are generally higher than in the.navigation channel. High concentrations of metals,. PCBs, and
pesticides have been -observed in river sediments, but in selected areas only ", '
Low molecular weight PAHs exhibit acute toxicity And other adverse effects on, some organisms,°bufare
non -carcinogenic; while high molecular weight PAHs are significantly•less toxic, but many are demdnstrably
carcinogenic, inutagenic or teratogenic to a wide variety of organisms including:fish and other aquatic life. Bulk
chemical analysis indicated elevated levels.of PAHs and lowto moderate levels of metals in samples at many
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Ms. Linda M. Murphy
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stations in the channel north of the Interstate=95 Bridge, which prompted the need Tor additional testing. This
suite of contaminants will result iii 'acute and chronic toxic effects in a evJ&variety of Long'Island,.Sound fish
species, will bio -accumulate and subsequently affect„avian and other species.
Bivalve mollusks tend to accunnulate high PAH levels due to their inability to metabolize andexcrete them, and
Nereis, a. marine worm, also tends to bioaccumuiate organic contaminants. The results of testing indicated. that
statistically significant bioaccumulation of PAHs occurred in clams exposed to samples from three locations n-
the'rhames River. Several PAHs, including dic'more toxic high molecular weight compounds, were found at
some sample locations. Statistically significant accumulations of lead: appeared in both worms' and clams. -Zinc.
also accumulated -in clams at this location. Sediments from some locations caused statistically significant
bioaccumulation of'several PAHs, including.the more dangerous. high molecular weight compounds. As a result
of 28 -day bioaccumulation tests, sediments from sample. locations;._if uncapped, could cause bioaccumulation of
certain PAHs in benthic organisms at the NLD& The EPA's analysis of the potential sources of sediments to be
deposited at the sites did not include a thorough discussion of such biological -and chemical parameters.
When considering potential disposal sites, one of.the factors that EPA must consider is that "[t]he dumping of
materials into the ocean will be permitted only at sites or areas selected to minimize the interference -of disposal
activities with other activities in the, marine environment;,particularly avoiding areas of existing,fisheries or
shellfisheries, and regions of heavy commercial or recreational navigation”: (40 CFR §. 2283(a)).. Without
knoweng.the cumulative effects of dumping and contaminant inputs from other sources, EPA should not
designate dump sites in this important estuary. '
Failure to Provide a Thorou h -Anal si of Altematives
Before it can designate open -water disposal sites; the EPA Administrator is:required to consider:
"G. Appropriate locations and methods of disposal or recycling, including, land:based alternatives -and the
probable impact ofrequiring'use of such alternatives locations or methods upon consideration affecting
the public interest.", (33 USC .§l412(a))-(see also 33 USC § 1412(c)(1))
The EPA did not provide.a thorough analysis of -re -use and upland disposal alternatives, as required by statute (33
USC § 1412(a), and (c)). In our November 17, 2003 letter commenting on the draft environmental impact
statement (DEIS), DOS and the NYS Department of Environmental Conservation (NYS DEC) indicate that more
detailed information regarding alternatives to the open water disposal of dredged_ materials is necessary and that
the continuing use of the Sound for open -water disposal of dredged material,, as the least -preferred dredged
material placement option,, should not be advance without a comprehensive Sound -wide dredged material,
management plan and the identification of such altematives.arid site. capacities.. EPA provided a one -paragraph
response to New York's concems (page 549; Appendix L of the FEIS), stating. that their evaluation'of alternatives - ,
.and beneficial reuse opportunities ":,.reflects the paucity of available upland disposal sites.... capable of ,
providing long-term regional capacity.
In Appendix C, most of.EPA's brief discussion of alternative's considers; in addition to the no -action alternative,
the evaluation of other potential open -water. disposal areas. The opening'sentence on page 1-2 of Appendix C,
promises: ,"The EIS will include.generic assessments. for.upland and alongshore beneficial use alternatives."
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Ms. Linda -M. Murphy
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However, the FEIS dismisses discussion of available alternatives and the possibility of advancing them, and fails
to recognize and analyze the. range of beneficial uses and decosuamiitation'technologies. Other than averring.
there are few specific sites where dredged'tnaterials can be used for a beneficial uses, there is neither
identification of beneficial uses over a broad.geographic area, nor a systematic program for implementing
beneficial reuse of dredged material..in.the Longlsland Sound region. r.
Open -water disposal of dredged rmaterial. is neither a favored management option nor is it an-activity.consistent
with the relevant parts of the New York State Coastal Management Program, as required in 15 _CFR
§930.32 A)(1). However, EPA avoids any detailed analysis of available alternatives to4he open -water disposal of
contaminated and uncontaminated dredged material.:Further; Such alternatives for both contaminated and'
uncontaminated dredged material are, in fact; available and have -been used in the Long Island Sound region
including in New York Harbor; Eastchester Creek and Hempstead Harbor and should thoroughly be evaluated in
a region -wide assessment of potential dredged material management options. Consistent with national coastal
zone management objectives, such ail assessment would lead to dredged. material management.that minimizes, or
avoids to the maximum extent practicable, adverse effects to coastal uses and resources.
For example, dredged sand and gravel is used for a,wide,range of aggregate or general construction purposes
throughout the northeastern U.& Those materials could be,dredged from many areas in the Long Island Sound
region, -moved to aggregate transhipment facilities, many of which funetiomalong.the shoreline as
water -dependent uses, and transport them elsewhere for construction.projects..This is a process similar to.the
means by which many major construction activities successfully were provided with -raw construction aggregates
through former in -water and -shoreline sand and gravel -mining operations in Pennsylvania,.New York and.New
Jersey. -
lm order to maintain.its status as a the third-largest_U.S, port and the. busiest. Atlantic gateway,' the PortofNY
and NJ must conduct -maintenance dredging activities -that result in the removal of up to 8 million cubic yards of
dredged material annublly. Prior to 19%, dredged.inaterial disposal occurred almost exclusively at the
open -water dump site six mites east of Sandy Hook, New Jersey: That site was closed to dredged material
management by executive order of the office of the President in 1997, and is now undergoing -remediation.
Instead of ocean dumping, the majority of dredged sediments are now successfully being used for habitat
creation, landfill remediation, landfill contouring and closure, brownfield remediation, mine reclamation, beach
nourishment, and construction materials.
Notwithstanding the, fact That- Ocean Dumping Act standards for dumping degraded material 'in.the Atlantic
Ocean legally' apply to Long Island Sound, Idisposal.of contaminated dredged materials. in Long Island Sound
continues; while the disposai.of'similar materials in the Atlantic'Oceanis prohibited. Asa result,federal agency
interpretations of the ODA criteria result.in dumping'dredged materials on- the north side of -Long Island (in the
relatively small Long Island Sound'waterbody) and .no dumping.of.similar'material on the south side in the
significanify larger Atlantic Ocean. The dumping of contaminated sediments into Long Island Sound continues
to deteriorate_ this invaluable resource and is not consistent with- the New York Coastal Management Program.
Alternatives to oeeandisposal are being implemented by New York, New,Jersey, and the Port.Authority of New`
York and New Jersey,.so that the Port can dispose of its 8 million cubic yards of dredged sediments each year.
The New Jersey Department of Commerce. and. Economic Development reported that.dredged material is being
Ms. Linda M. Murphy
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used to remediate, reclaim and reuse Brownfield upland sites. New Jersey has agreed to a request from the State
of Pennsylvania to conduct a demonstration using dredged materials for the closure of strip mines in the
Commonwealth. New Jersey is developing new sites for all dredged material. New Jersey recognizes that there is
a lot of competition for dredged material which often goes to the lowest bidder. Additionally, over the last two
years, New Jersey has interviewed nearly 200 vendors of remediation technology aid continues exploring new
dredged material management and new physical opportunities! Researchers at the Brookhaven National
Laboratory (BNL) in Long Island are participating in research to develop alternatives for treating highly
contaminated dredged material. The EPA has offered that BNL is helping develop several promising technologies
that have the power to solve the problem of dredged material (Newswire, April 7, 2004). The benefit from
decontaminating dredged material that distinguishes this management option from disposal, is useable products
like cement, aggregate, bricks, blocks and soils for brownfield remediation'
Material routinely dredged from areas on the north shore of Long Island is used for beach or dune nourishment.
In other circumstances, dredged material is sold as a valuable commodity and hauled from dredging sites to be
used in aggregates, for upland filling, and for construction activities. The range of these beneficial uses of
dredged materials include the raising of parking areas, roadbeds and buildings above base flood elevations,
backfilling dilapidated bulkhead areas, filling and grading of land for new construction, the manufacture of
concrete, general sand and gravel aggregates for construction including roadbeds, using the materials in asphalt
products, and in landfill contouring, capping and closure. Aggregate and asphalt industry representatives have
indicated to ®®S that those industries would grow to meet increasing demands for dredged material having
criteria meeting their needs; for use in manufacturing processes. A discussion of the comprehensive application
of such viable alternatives to open -water dumping is neither included, nor reflected, in the LEIS, consistency
determination and the FEIS.
'Despite these facts, the EPA repeatedly states that investigating the need for alternative dredged material
management, and implementation of alternatives to open -water placement, is not economically viable. The EPA
also conversely states that "[b]eneficial use is encouraged where a need for such use exists and any additional
cost associated with that method of disposal is justified by:the benefit" (®EIS, Page 3-5). EPA should have, but
did not, provide further evaluation of reusing dredged material for beneficial purposes where such beneficial uses
can be applied region -wide, instead of deferring to the evaluation of alternatives to open -water dumping on a
case-by-case, permit -application basis.
The EPA (and the Corps) suggests that the designation of open -water dredged material disposal sites is the
least -costly, environmentally acceptable alternative for the ultimate disposition of dredged material and, as such,,
is to be advanced as the preferred alternative. The EPA appears to be giving undue weight to the additional costs
that could be associated with upland disposal methods, or for open -water disposal outside of Long Island Sound.
In fact, costs appear to be the driving force justifying EPA's decision to designate the CLIS and WLIS sites:
With alternatives other than the four Long Island Sound sites, disposal costs would likely increase by
well over 20 percent over current costs. These higher costs would likely restrict both Federaland
non -Federal dredging projects. With static budgets and increasing unit costs for disposal, fewer projects
would be dredged over any given period ... (FEIS §5.3).
-10-
Ms. Linda M. Murphy
Page I I
Open-.rater disposal is: not environmentally acceptaU in thins fuse where reasonable environmentally acceptable ,
alternatives-are.available: ,Moreover-,topeii-%%,ater disposal may not be less.costly when'the cyst of environmental
damage is adequately considered. Cost,.however, cannot `be used as a bar to the consi`stencyof a direct.federaB`
agency activity, to the maximum extent practicable, with the, applicable, policies of the New -York State's Coastal ;
Management Program use
and-cannot be.d to justify ;an, alteniative for a federal actiVity unless,a. federal
appropriation act itself prohibits full consisiency,.or if full consistency is otherwise prohibited by federal law"(see
.......1,5. CFR,§93032(4)(3)). Neither of these,conditions .exist.
.In contrast to EPA's assertion.,that the use of dump-sites in-the Sound :is less`costly than alternatives,
- consideration of the.'cited alter ative,disposal options could, in fact, absolutely-reduce the introduction of
contaminants into the marine environment. Alternatives. re-using dredged material may actually reduce costs
compared to.the.costs of open-water disposal of contaminated dredged materials, and -have been used successfully
in New.York's Long Island-Sound region:'For example, the City of Glen Cove has implemented a widely -
successful revitalization effort, witk Glen Cove Creek, at_iis core. Given how dredged materials from Glen Cove ,
Creek (Hempstead'Harbor) are currendylbeing managed, i.e. by being incorporated into bulkhead reconstruction,,
and for use:by,the-CiWs Department. of. Public Works. as fill-in public works projects for upland beneficial uses, it
is clear that these and similar alternatives to the open. water disposal. Of both clean and contaminated dredged '
•materials in Long Island Sound are available. EPA. should encourage. the use of alternatives_ to open-water `
disposal''and advance efforts which•expandiheir use over the ;long term using dredged material as a valuable and
needed commodity. "
EPA's consistency determination does not adequately address,the availability of alternatives.to,open-water_
disposal ®fdredged- materials"in Long Island Sound.-While there are alternatives that were.not adequately `
considered; those.that were considered'are i. riappropriately lunited=priniarily tosome landfll and brownfeld
activities, beach nourishment, and nearshore disposal. These options are appropriate iii.many circumstances, but ,
°others that are viable in different circumstances;.such as.the-use of PAH-laden material in asphalt manufacturing;
were not properly considered. EPA's discussion of alternatives is inadequate, and is inappropriately biased ;
against upland and beneficial reuse°options.
The viability to open-water disposal in Long Island .Sound .is dismisse'd'with," ... no alternatives to
open-water disposal in Long Island Sound. would satisfy the need for long-term regionaldisposal options :..."
Mean ingfid.discussion ,of thdrrange of uses;;past and present, of diedged material, or the successful 'handling of
contaminated.material that could render such materiai'inert, harmless to human health and,4he environment; and
beneficially reused, is missing from.the'DEIS, the FEIS andthe. consistency determination:'
C Cumulative Impact Analysis
Formany years; dredged material from the marinas and harbors which line-Long Island- Sound has. been dumped
at disposalsites in.the Sound, without regard to the cumulative environmental effects on that water, body.'
According to.the EPA, the sites have"historically" been used as U.S. Army Corps of Engineers.(Corps}_disposal
_
areas,pursuant to the Corps's authority for such:-designation under,the Clean Water Act (CWA-) and. the,
The:FEIS states in Section II "1-listory of Dredging and Disposal in°Long Island Sound'.' that; " dredged
.
material from projects-in,Connecticutand New York, rivers, harbors and,coastal areas"has.been disposed of at.
open,water'sites. in Long"lsland.Sound since at least ehe 11370s." While dela@led records ofdredging activities
Ms. Linda M. Murphy
` Page, 12
exfendback to this tiin -disp 'sA methods and sites for projects `vere'not systematically recorded until the 1;95ft
119N�,cver,'there.,is evidence of continuous. useof.some sites. since" 1911.. (FrWette el cal., 1992). From the I950s
thr"ough'the early 1970s about N•open-water disposal.sites were active in Long, island .Sound, (Dames ,8c`MOore, =
1981).`. (FEIS.p: 1-3) Between I941',and 2000,.approximately 37;710;789 cubic yards_ of sediment have been, ,
deposited hi, the central And western porticihs`of the Sound. '
The ODA provides that "In designating.recommended sites, the Administrator:shall,.utilize wherever feasible
'locations. beyond tlxe-edge ofthe Continental' Shelf. '(J'3 a § 1412'(a)(0).The ODA siting regulafions further,
provide that "EPA will, wherever feasible, designate ocean, dumping sites .beyond'the edge of the continental
shelf and other such sites that 'have been historically used:" (40 CFR 228.5 (e)): In the FEIS (p, 3-30),.the EPA
wronoly contends that'CLIS and'WLIS are "historically used" ocean dumping sites; suitable for designation;
The rationale, of designating dump sites beyond the Continental Shelf is seif.evident; to keep the disposal of such
materials' far from the biologically productive areas along the short., In proposing to designate dump sites within a
tightly enclose_ d waterwaylike Long island• Sound; EPA directly contravenes.the spirit of the ODA. Since the
relevant provisions of the ODA`predate. the Ambro Amendment that included Long island; Sound as the sole
words °'other"s
territorial sea area ,within the ambit of the .ODA, the uch sites that have -been historically used"
must mean ocean sites' Moreover, another EPA Region's explanation of the regulations points.out that.- it must'
"wherever feasible,:designate ocean.dumpingsites beyond'.the edge of the continental'shelf and where historical
disposal has occurred:" '(61. Fede al. Register.54118-54'119 EPA Proposed Rules: Ocean Dumping-, Amendment of
Site Designation; 40,CFR Part 228)
Also, the use.ofthe CUS and WL1S'openwaterAisposalsites4n the Sound was based.on,a 1980interim plan
between -New',Y&k, Connecticut and`invoNed federal. agencies that provided for along -term plan":to:be
developed'to reduce and elimiriate.theopen waterAisposal of dredged ;materials in the ;Sound. The interim plan '
contemplated1hat all;in-water disposalofdredged materials would, stop, arid.suitable upland.disposal areas. oc. .
uses would be found. This logic-is`reinforced today,,'in. Iight.of the closure of the Mud Dump Site in .the Atlantis
Ocean. In contrast; EPA urges that the "histoeic..ixse" of these sites, which was to be temporary under,the ,
multi:agency Agreement; justifies the permanentdesignation and7continued..use of these sites.-
EPA also,contends that the dredging.and disposal needs -and alternatives ofthe western and central LIS,regions
are'geog' 'hicaily and'environmentally separate frotnthose of the eastenn.LIS region, The Sound is a
semi=enclosed; restricted system, where water circulates in the shallow basin. The effects of dumping'at one or
mora sites will necessarily affect all basins in the Sound.' Dur' ping is currently, permitted at w ,IS, Cornfield
Shoals Dispersal Site.and New Lond®n Disposal sites, alI in the Sound. EPA acknowledged that the,possibility'
exists -of multiple projects occurring simultaneously: (FEIS E5=15):ltoivever, nowhere In the submitted
documents is there an analysis of.the cumulative effectt of'multiple dredging -projects and -,the dumping of '
dredged'material;at all sites.., EPA's segmentation of theproposed designations improperly limits'EPA's,r"ange'of
review and-ihe consideration of cutnulative.environinental°impacts from past and fixture dredge spoil disposal in
the Sound... Moreover; even if•EPA were correct and the Sound. were not treated. as a whole, .the. I al of most''of.
the regional plans listed earlier were to fmprove water quality and habitais�in the western Sound- the most °
_ -degraded portion - and''not allow iq to fixrther decline._' :' _ - - ;
-12_
Ms. Linda M. Murphy" ;.
Page t3
.EPA'has conceded that there will be cumulative impacts from the designation of dredged material disposal-sites
in "this enclosed-waterway.. The,FEIS.(p: ES-16).states:
In Long island Sound-disposal of dredged material could,result in.releases of contaminants in the'water
coluintt,\impacts.ta fish andshe111ish, and�impact§'to navigation. Otheracti'vities.in the.Sound could also
result in releases of coniaininants ( e:g -,:non point;source pohution orspilis" from vessels), environmental
stresses on fish and shellfish, and use of the Sound by ships and recreational'watercraft..Th'ur; the;
impacts of the disposal"of dredged-niateriaf in the,Sound, "together iAth.those resultin"froni other
unrelated activities, could" result in cumulative, impacts: These cumulative impacts'are'not expected.to be
significant or to thrcaten.a'violation of any,federal, state, or. local requirements.
Here again, states that cumulative-adverse effects are not.expectedto occur and forgoes an appropriate
analysis of available "P. formation. In fact,'these cumulative impacts are. already significant; given the fisheries
and lobster declines an.die-offs:. While-adm.itting the likelihood ofcumulative, impacts, but`withoui the benefit.'
of. a Sound-wide analysis,, EPA.minimizes the significance of the effect`s`,:.
Aiso, .while acknowledging the link between site designation and subsequent act ofdumping dredged material,
EPA nonetheless avoids examination of this causerand-effect relationship .with regard`to water quality: "Athough ,'
the potential water quality effeets of EPA dredged material .disposal site designations under the IvIPRSA •are
evaluated under EPA's site selection criteria, see 40 Code of Federal Regulations (CFR) 228:5(b), and 228.6(a)(4) ;
and (9), EPA site designations are'not directly subject to the aritiAegradation -provisions of state water quality
standards. This, isbecause the site desigoation.does not directly allow_any discharges of any"kind intoahe waters,
of.Long Island Sound,(FEIS, Appendix "Li page 487).: ,
In its comments on the DEIS; dated ()ciober 21, 2003i the 1'rD.S Fish\ and Wildlife, Service/New England Field ;
Office focused on cumulative impacts in Long Island, Sound,, stating'
On,pages5=88\and. 5-89, statements are made that cumulative impacts ;could occur at designated'disposat
sites and-as a result of other. activities on .or near LIS. "I-However, this rather brief discussion of cumulative
effects ends with.a sentence statingthat.ill dredged material component, of these cumulative impacts is -
n6vexpected to be significant or to threaten,a violation .of any federal; state or local requirements, In our
view,"this is not anadequate\discussiodi and'evaluation of cumulative effects on LIS,, especially when a
signifcant.portion of Chapter 4 is devoted to identifying changes that have occurred to various resources
over the past 30 or rnore.years.'One example: of an incrementaleffect, fhat.EPA.should consider
evaluating in,detail in.the.cumulative effects section is the increase in concentrations of chemical
parameters at the disposal sites as a consequence of past-and :anticipated future'disposal activity at these
sites,. This incremental impact: is identified and briefly discussed under the.'sediment quality triad analysis
and ,in Section 4:6:2., but. is not evaluatedas a cumulative effect. Other examples of incremental. impacts
that Have not.been evaluated for cumulative effects include elevated tissue concentrations of organic and
inorganic (metals) contaminants_in.lobster and•clam and wortit:ti'Oues"and disturbance tobenthic"habitat
and communities as a consequence of disposal activity; hypoxia effects,,dredgitig, weather related effects
and'other discharges into LIS (F S, Appendix.L, p. 486): ;
Ms. Linda M:1Vlurphy
Page, 14
EPA summarily disco ssed'the concerns -of the U.S.Tish andtl'Wildlife Service ,which are also of concern. to DOS',
EPA's .response alludes only to the otter open-watersites considered as alfernatives, ignoring the cumulative
effects of dumping at any .one site and the benefits of alternative placement, •treatment and reuse options. ;
'The U.S. Fish.and Wildlife Service cointdnents further prov.ide: L
"On page -4=38 et at., the,;document discusses.the sediment toxicity studies -by, Wolfe:et: al, and 13uchfioltzaen
Brink et al. and concludes that.acute sediment toxicity appears Lobe primarily 'in riearshore areas of LIS. Since
the dredge material being disposed. in LIS `Originat'es.primarily from°neirshore areas,: it wo.bld,Appd-ar to be
prude . ht, for EPA to discuss the, potential for incrementally enhancing sublethal o'r even; acute toxicity at -the -
is sites coniinetisurate with tite incremental char' _ss isi sediment chemistryrand:tissue cheinistry.
EPA, however, abrogates, thorough:assessment.and evaluation.of sediment toxicity in nearshore areas and -the .
cumulative effects of concentrating these contaminated sediments at the proposed disposal areas in favor of ,
benthic i» onitoring post -dumping. Also, additional; :available=toxicity:data is not adequately included or'
discussed: This includes sediment pore -water. toxicity testing of sea urchins conducted by U.S. Geological
Survey (USGS).. While the'methodologies may.,pot be comparable (see EPA's response,FEIS,.Appendix L, page
'487), these additional data are worth- includin - d examining on.theie6wn, in light of the importance of the
Long:island Sound ecosysiem•and its benthic resources The.V ,Fish and 1Nildlife Service has.further- indicated
that EPA fails to identify the USGS sites iriahis analysis;' fails to use the sea. urchin test as a tool :for,examining
sediment quality in the active and inactive dump sites; and whether the sea urchin testis a -tool for,identifying -
potential•disposal sites, such as impaired sites;ahat'couldbe.restored, using site designation and management.
It was the "growing environmental degradation" of Long Island Sound that prompted the USGS: in 109540%
undertake a multi -disciplinary study of the environmental conditions and the -geologic processes .that influence
these conditions'in,the Sound. Through its tong,lsland Sound Environmental Studies program, the USGS has
been focusing on contaminants and. accumulation in sediments of Long Island Sou•nd.` It noted:
Semi -enclosed marine areas, Such as Longistafid Sound, are particuiarlysensitive'to the effects of human ;
activity because -they are not as we flushed as ®pen coasts. The larger cities of°New York,.-Ndw Haven,
and New London are 'located •on Long Island Sound; as2re'n merous.smaller-cities and towns on both the
northern.arid southern shores 1n. addition; the Housatonic, Connecticut, Thames, and other rivers.drain
extensive inland areas into the' sound (L)SOS 1995).
In the.FEIS,,EPA;l sled many of the authorized.navigation projects in Connecticut and New York in and around
Dong Island Sound which utilize.the proposed dummsites.(see list on pages 1-4 and l=5). Among therm are
navigation facilities which contain highly cont•aminated.sediments or are identified sources of contamination:
The past, present and. future contributions fiom these'sources - •whether by dredge 4isposap or natural, flow into
• the Sound- was,not discussed by,EPA in its,consisteney-determination or the EIS documents;
The, Housatonic lover in Connecticut drains into Long`Island:Sound. Iteportedly,'Housatonic fish, waterfowl, and
sedim'ent:contain°some of the highest levels -of PCBs inAhe country. EPA Region I is gaidittg the cleanup of this
Superfund site and is now: concentrating on the"rest of the.river." Years of drainage .of sediments into the Sound
have occurred. A'USGS study,•"The Distribution of Mercury in Sediment' from T.ong4sland Sound and'
W -Linda M. Murphy, , ..
Page I5 r ;
Surrounding Marshes" (Varekamp, Buchholtz ten Brink,. Mecray,-and Kreulen, Open, file Report ®0-304 Chapter
7); concluded that.the high concentrations of mercury(Hg) in western Long Island SounJ surface sediments at
ti50 ppb Ng. is, in significant part °'due. to input of Hg rich'sediment'from the Housatonic River Basin." This
important contributor of contaminants was not addressed by EPA.,
Naval facilities are present along the Thames River,:and soitte of those facilities contain federal Superfund sites.
'',Additional stratified sampling and testing forthesepollutants, and additional, stratified samplingand'testing for
the actual levels of pollutants insediments-throughout'all of the areas to be dredged, would likely have revealed .
more types and higlieracival levels:of contaminants in the:areas to be dredged, as op' sed -to in
samplinj and testing.that averages clean Areas out With highly, contaminated areas. Radioactive Cobalt -60 is also
present huthe'Thames River sediments. According to -scientists at the Marine Sciences:Research Center at the
State University of New York at Stony ,Brook, the levels -of. Cobalt-60'reported in the SEAWOLF FEIS .are under-
reported for the Thamesliver area. The.introduction of. Cobalt -60 into the open water marine environment could
result in _rendering certain,'commercially;and recreationally important marine species unacceptable for human use.
The effects and consequences of introducing. this, and other radioisotopes, into the marine.environment has` not
been .considered'.in the cohsistency determ�nat--ion and the,environmental impact statement documents.
The EPA -fails. toin'ention the"disastrous dredged material dumping project that involved the Navy's homeporting
plan for the Seawolf submarine.'The'Navy used the New London Disposal :Site for the disposal of approximately_
1.3 million cubic yards.of materials. from the.Thames River, of which approximately 300,000 cubic yards was
contaminated.. The Navy and other federalagencies`assured the public"that'.the contaminated materials _would be
effectively contained, at the disposal:site and that contaminants would not bioaccu' mutate in. marine organisms.
Unfortunately, a: monitoring report, prepared for the Navy- indicates that approximately 116,000 cubic yaids of the.
contaminate& materials and 71,_100 cubicyards of the capping material§;could not be accounted' for, and that,
some of that material might; not have been adequately contained:. The effects of he release of contaminated
dredged materials for this.oroject, together with all other inputs of contaminants,'has not been, considered in the.
EIS's evaluation,of cumulative effects.
The EPA also states`,thatahe Regional.Implementatiori Manual'(RIM); proje'cted,to be fnalized in find -2004 as'
guidance for evaluating dredged enaterhil.that may be proposed for disposal in_New England waters, would be
incorporated' -into the Site Management and Monitoring Plans:for.each site by reference. The RIM references the
EPA`s "Evaluation of Dredged Material Proposed; for.Ocean-13isposal Testing Mimual" for determining the
suitability of dredgedmaterial for open water disposal in the Sound based on an evaluation of reference sediment
which is intended to `represent ambient sediment quality in.the vicinity of the' open -water dump site(s). There is. '
however, an: absence of substantial discussion regarding the. existing.levels ;of contamination ,found at the
proposed sites, and the -cumulative effects.of continuing disposal. of contaminated sediment's at the proposed sites,
using'reference data that-. itself, reflects elevated.Ievels of contamination. "Reference. material°is the baseline of
evaluation, _but :it.only tests whether the sediments proposed for open water disposal presenia threat signifcantiX,
worse -than the sediments already in the vicinityof the site. Teming,dredged material -td determine if it would -
present an increased threat when added to the:reference sediments, -which may be contaminated by aoy number
of sources other than dredged 'spoils that are dumped in the Sound is not discussed.
If the reference material itself causes harm to test animals because of _-levels of pollution iyithin the reference site
sedimenis;,the pollution levels; in'.the. sediment proposed for open"water disposal would inappropriately appear
J
Ms. Linda M.. Murphy _
. Page 16
less injurious; and ;more benign, and the, cumulative effects of open water duniping_would remain inadequately;
assessed"., -The kIM, and its stated purpose for determining the suitability of material 'for aper water dumping
remains incomplete and faulty, further Frustrating the DOS's decision -malting with. regard to tlie: EPA's•
determination of consistency for the ptoposed.site designations;
Trace metal,contiiinination of sediments: from land-based activities is-foundahroughout Long Island Sound.an. its
watershed. In 1996 'the USGS collected samples of surface sediments in,the Sound to measure. amounts and
locations of metal'contaniinants and to establish a baseline for identifying changing conditions. Average
concentrations of silver and copper in the Sound:were 4-5 times greater than naturally -occurring background
values.: Zinc, lead, and manganese concentrations were enriched 1.5-2 times greater than natural background
levels. The concentration &tributions.'of these elements.correlates with tlie'sedirneritary environinerit;the.
sediment te. ture,:the organic carbon content, and.the abundance of,Ctosiridiuwu peifringeets,:a bacterium used as
a sewage tracer. Strong water currents remove fine -grained -sediments; and the'contaminants that are,associated
with them from sandy;.re�yorked.enviconments and -concentrate them in the,depositional basins. Thus,' the greatest
enrichment of metals is found inthedepositional,environments-and muddy sediments ofthe central and western
basins, due to'both prokimity to pollutant sources and the natural Move rent ofsediments.and contaminants.
within the Sound. :
D., Dredged-MaterialMana erne .
The,EPA and Corps;mustprepare acomprehensive plan for managing;dredged materiality the region to iduntify
the alternatives to open. water- dumping. This was done' successfully, for NY Harbor following 1997 on
the
dumping in the Atlantic. WhHe the development of a regional dredged,material management plan.,(DMMP) is`a
separate process from'the-LIS'site designations, the consequences and.cumulative effects of both are inseparable.
DOS has repeatedly stated to the .EPA,.most. recently in"a letter dated ApriI30;.2004 from Secretary of State ,
'Randy A. Daniels to EPA Administrator Michael Leavitt, that a dredged,material management plan, must .precede ;
the designation,of.any, site. The DEIS, FEIS and -consistency -determination do not contain this crucial'
management tool;
The proposed action.by, EPA to' designate the- two disposal sites improperly, concludes.that open -water disposal of
contaminated,sediments in Long.Island Sound -is the only signiticant.and reasonable option for managing dredged',
material. However, this approach is not consistent with -the CMRAnd`is not consistent with existing federal policy,
for the, south' sideof Long Island in..the Atlantic. it is also. inconsistent with New York's investment of $340
Million to cleanup Long'Island Sound and'is-false. Moreover. the goarof•the ODA is to eliminate. open -water
disposal,. not to designate new sites; -especially -in an Estuary. of National Significance Pacific Le a1.Foundation
v uarles, 440 F'.Supp. 316, 328.(C.D. Cal. 1977)). EPA's offer to ",.a.. `hostmeetings to Map out thenext,steps
for 'initiation" in "response to our.comnrents on the need fora DMMP:is insufficient justification :for the current
EPA determination of consistency,; to the maximum -extent, practicable, fo, 's, . ,d'esignation. The current
designation. process would result in degrading, rather.than improving, the quality of the Sound. EPA should have,
ba did not; quantify dredging needs, evaluate dredged. material managemenfoptions, consider the cumulative and '
secondary effects of this activity, and develop a comprehensive dredged material management plan for the entire ^
Tong Island Sound region.
Ms. Linda M. Murphy.
Page 17
Ila . Policv Analvsis "
-In addition to information and data deficieticics which, lead this agency to object to the EPA's consistency
determination-on.the.grounds.of insufficient information, the review of information made available to.®OS'also
leads tis to conclude that Elie-EPA4s,aciivity proposing to designate open-%vater sites in Lotig Oland Sound is
inconsistent -with -'the folloeving Long -Island. Sound Regional Coastal Management Program' policies:
-Policy,. 5 l'rotect.ah(l unikpveL water 4itality dnd supply -hr the Long' lslmrd Sound coastal area.
One of the pr,incipal'purposes'of'thispolicy is to,protect the quality of water in the Long Islaiid'Sound,are,
Water quality protection and improvement inthe region,anust be accomplished by the combination .oftnanaging,
new -and remediatingexisting.sources of, pollution. _
Dredging and.dumping.dredged''rnaterial:in open -water degrades water quality. Adverse effects_ to human health
and the estuarine environment can be directly attri.butable:to•tht. discharge.of dredged..material in open.water..
These effects are,acutely exacerbated with the.presence of elevated levels -of known contaminants, such as
mercury, PCB cogeners, and dioxin.
Dredged material that would be disposed of in .the Sound after designation will; contain elevated Ievels of organic
material and nutrients,` including nitrogen, which exert oxygen demand on those. waters and promote algae
growth. The direct effectof.this nutrie'6ul' tiding is.decreased dissolved oxygen levels'in,the found. Programs
' costly to municipalities. and taxpayers, which,are intended to.retriove-nitrogen arid.implement storm -wafer controls.
aremandated by EPA in order to lessen contamination of the Sound, while.the lowest -cost, most environmentally .
damagihOredgedmaterial.disposal.option is being;advanced by the EPA on' the basis, apparently, of economic,
-advantage alone. "
Policy 5.3 Prodect a►id enhance the_quallty of coastal waters.
The resuspension of sediments during dredging operations and during the transit of,dredged material through.the
water column upon final placement, results in the re -exposure of contaminants in dredged'sediments to the
°environment in additioji to substantial local oxygen depletion during each -bulk.sediment movement through the
water column. Managed dredged material (i.e. dumped with capping protocols). remains exposed to the
environment during removal. and `placement;.pri®r to. any final capping or complete sequestration: Capping
disturbs the underlayment, :causing spatially. large.dispersals. Experience in Long'lsland:Sound has shown that
capping dredged material is' unpredictableas a reliable,management technique for isolating contaminant -bearing.
fine-grained sediment from the environment,'particularly in depths ofwater such as that found atthe CLIS.and
WLIS sites. This exposure, and the adverse effects associated with such -exposure, will result in degradation of
water quality�in the 'Lorig Island Sound ecosystem. These contaminant -laden constituents of deedged.material.
continue to bio=accumulate and remain exposed to transfer throughout the ecosystem: The presence of.elevated
contaminant, levels in sampling across the study, area,suggests the unreliabiiityof this management method.
Managing, dredged material..systematically in order to'avoid, or'reduce,,.open-water disposal significantly reduces
the likelihood of adverse effects to human health and the. environment from the open-wate.r dumping of dredg 'd'
Ms. Linda.M. Murphy.. ;
Page 1'8
material.'The•EPA, suggests, in the ®EIS and FEIS,-that the estimates of dredged material to be' placed`at the -
open -water sites is derived,.in.part,'fronm'survey responses and -the catalog"of.federai projects in the -Long Island
Sound. region. The'survey is referred to as having been,sent to "Navigation -dependent facilities and contacts" but,
many of those businesses have chainged;names, been sold, or gone out of business. This vaeiation.complicates the
uncertainty of determining accurate needs overtime suggested'titne-scale (i.e, 20 years) and'.fails to anticipate
changes :in dredging'needs due to. the:introdection; orre'-intraduciion, of new:nQn-federal navigation -dependent
facilities.:One consequenceof the NY;Harbor. Navigation Study (Harbor Deepening Study) isth'e accelerated
incerase in shipping.-port-and:navigable ttiaintenancc, and traffic five years into the study°s projected.
fifty-year,life spair,above the rate:originally anticipated iwth'e'study. The Needs Assessment cannot provide an
'accurate,estimatc of dredging needs and potential dredged material placement volumes where there is less.than a.
response rale to the survey: Such asurvey-response rate may be acceptable for detertiiining g eneral.trermds,
but for forecasting: specific volumes, is this case, the responses are insufficient,forappropriate needs .forecasting.
F& each of the` survey areas•(e.g. dredging centers/esonotnic areas),'the undetermined potential dredging needs
represent a statistically significant volume of material .that could be, placed :in the open=waters'of Conk Island
Sound but- is unaccounted for in the. current assessment.:Future land. and water development plans and uses are
unquantifieo and unaccounted for, and:wouid.add to -dredged material volumes..to'be nmariage& •Foi.the reasons
cited above; the proposed activity is inconsistent with thi's policy.
Policyb . Protecrand:restore the.quality and function of the ;Long Island Souitd ecosysle n.=
The Long Island -Sound ecosystem consists of physical components, -biological components, and their `
interactions. Certain natural resources that are important for their contribution to. the quality; function and
biological diversity, of. the Sound, ecosystem have'been specifically identified_ by the State for protection:
People continue to,be attracted'to the Long Island Sound coastal a' 'a and developniezit pressures`onthe, natural
resources ofthe region continue.t® grow. Unfortunately,'Long IslandSound has been polluted fora long time.
Every summer, the dissolved oxygen content in the western Sound's basin reaches such low levels that marine `life
dies. The need to.clean the Sound'and reverse its declhwwas recognized by Congress .when.itdesignated the.
Sound. as an estuary of national. significance. The EPA should have included data.indicating tivhethee the'
designation of the proposed sites -could affect dissolved oxygen levels. or.other rwater quality parameters in Long
Island Sound.
EPA,maintains the designatioh and continuing,ke'of these sites for dumping dredged material are, therefore,
consistent to the maximum extent practicable, with the applicable; enforceable policies'ofthe NYS CMP,as it is
expressed in the Long Island Sound Regional CoastalManagement. Program. The EPA's view that these proposed
designations wouldhave negligible effects on,ecosystem quality fails to assess the cuntutative.effects of the.
proposed:designations.and the cumulative cffects..of the.long-terra use of these sites after designation, and the
'historical' and potential- future use of other open -water sites. -in bong, Island Sound, like the Cormeld Shoals' and
New London open -water disposal areas. For these reasons, the proposed activity,is. inconsistent with this policy.'
Policy 6:1' Protect pad reslnre ecological-gtlalitylhr®ughout'l ong h1and Sound
Ms. Linda M.Murphy
Page 19
The EPA neglects to discuss what- reasonably foreseeable effects"may likely accrue from this direct federal
activity when using the farfield, inactive and active mound sediment data as an index for allowing further
open -water dumping of dredged material and the subsequent degradation of the Sound environment with the use
of the proposed disposal sites, as required by 15CF11§930.33(x)(1).
The Marine Protection Research and Sanctuaries Act requires the designation of dredged material disposal, sites
that. will mitigate adverse impact. [of open -water dredged material placement] to the greatest extent practicable
(VIPRSA 33USQ 1412 (l)(c)(l)}. EPA's proposed designation of two disposal sites, however, is based on the
apparent and erroneous assumption that the sites proposed for -designation, because of their past use for receiving
dredged material and the.associated presence of elevated contaminant levels in baseline sampliaig, are appropriate
and, when continued to be.used for the acceptance of dredged -material that does not meet -NYS water quality
standards, would not significantly degrade the Long Island Sound ecosystem. There is no discussion'of how the
proposed direct federal activity improves the Sound ecosystem. This determination also fails to address
reasonably foreseeable effects of continuing to use the sites in the context of sampling that reveals elevated
reference levels of non -inert, and toxic, constituents, as required in 15 CFR Part 930.33(a)(1). The EPA presents
data showing these elevated contaminant constituent levels (i.e. mercury, copper, and pesticides, liketoxaphene)
in their baseline sediment surveys, and suggests that the historical use of these sites, and the presence of
contaminants such as mercury and copper, does not preclude the sites continuing use as dredged material disposal
areas and would not.result in further degradation of the environment and Long Island Sound ecosystem.
However, the historical use of these, sites has already contributed to the degradation of.ecological quality
throughout the Sound. Future use would present reasonably foreseeable, and avoidable, cumulative effects
exacerbating the Sound ecosystem's exposure to additional contamination.
Without specific criteria for determining the potential toxicity of dredged material and an assessment of the
cumulative effects of open -water dumping according to those criteria, the EPA fails to demonstrate the
consistency of their proposed designations, to the maximum extent practicable, with the applicable policies of the
Long Island Sound Regional Coastal Management Program, and Policy #6..1, in particular. In its consistency
determination for the proposed designations, EPA states that "[p]otential adverse impacts to water quality are
expected to be minimal" (EPA Consistency Determination, March 4, 2004, page 4). This statement implies that
the use of'the. CLIS and WLIS disposal areas after designation would not result in significant,.adverse cumulative
effects to the Sound ecosystem. For the reasons cited above, the activity is inconsistent with this policy.,
Policy 8 Afini►nize environmental degradation in the Long Island Sound coastal area from solid waste and
hazardous substances and wastes.
The intent of this policy is to protect people from sources of contamination and to protect Long Island Sound's
coastal resource from, degradation through proper control and management of wastes and hazardous materials.
Attention is required to identify and address sources of contamination resulting from in-place sediment
contamination in the Long Island Sound region.
In NYS, dredged' material is regulated as a solid waste. The development and implementation of a strategy that
avoids open -water dumping of dredged material (a solid waste) would be a proper management practice. EPA's
Ms. Linda M. Murphy
'Page 20
consistency determination, fails to _provide such a strategy and:therefore, is not consistent.with the state's ;
management 'program:
Policy 8.:1 _ Maizage..soli,l ►4,rzste to protect pzrblic°health mrd cotitrol pollution
The proposed management of dredged material.(a solid waste) is to dump the -mate in the Sound- The analysis
of prospective alternative options, particularly the benef ficial reuse -of material dredged In the Long Island, Sound
Region,.has not been adequately addressedin;the EPA consistency determination, or in the draft and final
environmental impact statements The expansion ofalternative upland placement sites,an&dpportunities; : S.
similarly, has not$een thoroughly studied. In NYS, the open -water placement,of dredged material is'the
least -favored option for managing, dredged material; and should be: considered only after all other options are
exhausted, as previously recommended to EPA;bythe DOS:and NYS 'DEC. in our November .17,''2003` letter,.
Guidance'for the implementation of this policy specifically addresses the pre.yention of solidwaste.discharges
intothe environment'.by-4smg proper handling,. management, and transportation practices: EPA has; however,
failed to, consider this guidance. The proposed, activity is inconsistent with this policy; I
Policy.8:3. Protect. the. enviroqanzent from degradation'dfue.io Toxic pollutants and substances hazard®us to
the ehvironniedt , ihd public health.
in addition to ihe.adverse effects associated with the ` e -introduction- of dredged material contaminants to the
water column and benthos, the open-waterdisposal of dredged material has adverse effects on aquatic species
and';the benihie community darectly through sediment dispersal.through the water column; and burial.. The effects
of chemical contamination may not -be manifest until after several generations -of species,,propagation. Reference
sainples.provided-in the site designation environmental impact statement reflect concentrations of:some
contaminants beyond known toxic limits and can not reliably be used`as indicators for; subseguent;dredged
material sediment contamination evaluation. Furthermore, reference data which shows minimum toxic effects
levels (MEL) of contamination; or greater,' wouldset an�unreasonable_and. injurious standard for permitting the-,
open -water disposal- of cont aminated sedi.ments'in Long Island Sound:
One strategy of,the.Long,Island-Sound Comprehensive Conservation and )Management Plan•is,to.undertake,and
support efforts which comprehensively -address -toxic contaiiaination in Long'Island Sound'byT=controllingand
preventing toxic, contamination from all sources; addressing sediment' contamination; improving.human Health
,risk management; monitoring and assessing_toxic,contattrinants; and, conducting-,toxic.contaminant research: The.
2003 goal_for. achieving.this. trategy is to °°[e]liniinate toxicity of bioaccumulation impacts on living resources by
reducing.contaminant.inputs;-cleaning up contaminated sites and managing risk'to humans from seafood.
consumption:"
The Sediment_ Analysis data prdvided.with the. environmental impact statement -for the proposed site designations -
(Appendix F; Volume l) exhibits reference sample data from'se
veral.l®cations that -contain higher levels'of
certain contaminants that are known to poserisks to. human. health and the environment ° 'These sample: results,
compared with:existing'established toxic limits front sources such as the NYS'.D. ECTechnicaI Guidance for
Screening Containinated:Sediritentss, if used to establish the suitability°of.dredged.material for open -water
placement, would result in the continued -disposal bf contaminated material' in the open -waters of Long Island
Sound without management. Protocols, following site designation.arid are unaccdptable. lviore.importantly; the ,
Ms. Linda M: Murphy
+ Page 21 "
.reference data at each proposed site reflect levels of copper (Cu).which exceed the toxic -effects level in the NYS'
DEC guidance for that constitueni6. High levels of this contaminant have been detected at nearly the Severe
Effect Level in reference samples.
,The importance ofthe, presence.of copper in sediments and the water column is two=fold. Copper is shown to
have predictably fatal effects on American lobstee.(a LIS fishery that has declined, drastically in recentyears) in'
low concentrations'. For example, copper is -considered lethal to lobster at concentrations of 0.056 ppm (parts per
million).Concentrations ranging from 50.8 to 56 ppm copper in, sediment samples at the CLIS site and from 62.5
to 82.7in the WLIS site, have been recorded. These levels are more than 1000 times the known fatal limit of
copper for lobster.. Copper is important as -a micronutrient in animal growth and development, but it can become
toxic when present.in excess. Research has indicated that copper is among the more toxic metals to aquatic
animals, especially crustaceans. It -appears likely that copper contained in dredged materials that have been
dumped at the CLIS.and WLIS have had a negative impact on lobster survivability. Toxicity profiles presented in
the EPA's website concerning ecological risk assessment include information on copper as a toxic inorganic
substance. According.to the profile; "Iclopperis highly -toxic in,aquatic environments'and has effects in fish,
invertebrates, and amphibians."°Lobster represents a valued resource to commercial fisheries, and is'consumed by
ffi
humans. Contaminant accumulations. in this resource pose direct threats in sufficient quantities to human health.
Copper is abundantly used in anti -fouling compounds and may provide a correlation, to areas most -frequently
dredged like boat basins, marinas; and navigation channels that are populated by bots employing this element in .
anti -fouling hull paint. Its presence in reference sediments, obtained near- the proposed disposal areas, implies
t../ that dredged material historically placed in.the open water has originated -in those areas where dredging is most
likely to occur-(i.e. marina -basins and navigable fairways) and.has not.been successfully sequestered at the
disposal sites; never reached itsintended figai disposition location, or was not managed and has migrated through
the water column.
Other contaminants, like PCB cogeners, are known to exist -in sediments near the proposed disposal areas (DEIS .
Appendix F, Table 4-1), and in active -site sediments. These contaminants have been- shown to bioaccumulate in-
benthicand aquatic marine life: The U.S. EPA .has determined PCBs to be probable human carcinogens.' Their
presence in, and around, the proposed.disposal, sites. (see DEIS.Appendix F, Table 4-1), in sediments likely to be.
dredged from Sound tributary rivers and harbors, and the absence of.specific protocols for preventing their
disposal at the proposed sites would lead to further degradation of the Sound environment. Furthermore,"the .
maximum acceptable- level of continuous exposure to PCBs by aquatic communities.is .03 parts per million =
:without detectable adverse effects, accordinglo U.S. national water quality standards,and sediment data in Table
4-1 for total PCBs exceed this national standard.
The information presented in the EIS does not adequately support the conclusion that potential risks to human
health, "appear to be very low" for EPA's preferred disposal options. For example, .for several contaminants in
finfish (e.g., dioxins) and for alTcontaminants in lobster`(a key species due to particularly high,contaminant
levels in hepatopancreas), the ElS calculated potential human: health risks using modeled contaminant'ievels only.;
even'though actual monitoring data were collected. In.some cases, modeled contaminant levels were
considerably lower than measured levels and.the use>of modeled levels may underestimate health.risks. The EIS -
risk estimates .,for PCBs are at levels at whichEPAtypically-recommends measures to reduce exposure, but the
accuracy of these and other risk estimate.cannot be verified based on the information."roAded. Also, the'EIS
Ms..Linda.M. Murphy,. ;
Page 22
did -not address potential health risks to children. ,Finally, the EIS is incomplete.in.thafit did not characterize -the,
potential liealth risks associated with other disposal options and therefore comparison of variousalternatives on,
the:basis of health;risk'is not.possible. Given the foregoing, the designation of dredged.anaterial disposal sitesin
the -open waters of Longasland Sound is inconsislent.w.ith this policy.
Policy _1 U.6 Provide sufficient infrastructure for water -dependent uses
'The EPA states -in their consistency determination that.open:water,site. des ignation'advances water=dependenr
uses and the infrastructure that supports those uses in makingthis cost-effective, but environmentally damaging
disposal. option. available: The'EPATf rther states that " ... no alternatives to'open-water disposal injong'Island''
Sound would satisfy the need fort -long -teen regional disposal....: To support the long-term, viability of navigation.
and water -dependent -uses in the Long Island Sound.region, along -term strategy for managing dredged material,
in a manner consistent with.the objectives of reducing sedimentation -and contaminants at the sources,"protecting
the Sound ecosystern,,and improving water -quality in -the Long Island Sound, region is required and must be
advanced by"all stakeholders, including the U:S. EPA and the`New England District of the Corps.
Specific guidance :for supporting water -dependent uses and providing the ne'cesuaryinfrastructure for such uses.is,• .
described in the Long Island Sound. Regional Coastal Management Program. Policy l,l).promotes beneficial uses
of.dredged -material, consistent with"past practices in the ]Long Island Sound region, by requiring.the,beneficial
ell use of suitable, dredged material °' ..:.for beach nourishment, dune reconstruction, and. other beneficial uses,.'°
x allowing:'° ... placement.of suitable dredged material in nearshore locations to `advance man me.and,port:-related -
functions'-` and avoiding "plaeemeni.of dredged material in Long Island Sound when opportunities for beneficial..
reuse of the materialexist" (LIS .CMP a(page 85).'The appropriate.'strategy should includ6establishing accurate._
estimates of All classes of dredged material expected to be removed from navigable fa( rwaysthroughout,tl e
region, identify all opportunities for`the lieneficial reuse of dredged material, and provide a comprehensive-,
schedule in a Sound=wide:dredged,niaterial.management plan of. needs: and, opportunities which support maritime
and recreational uses of the Long.Island Sound, improves the quality of the Long Island.Sound environment; and.,
which :places dredged material,.as a coastal resource; in beneficial uses. The proposed activity;is.inconsistenC
with,this.policy.' '
Policy l 1' Promote sustdinabie use of living marine res'aurces-in Long 11 d"Sound.'
The living matme-resources of the Sound play an important -role in the socialand economic well=being.of.the
people of the Long. island Sound region. Commercial and recreational uses of the sound's living marine -
resources constitute an- important'contribution to the economy.of.the region and the State. Continued use of -,the
Sound's living resources depends on' maintaining long-termhealth and abundance of marine fisheries resources
and the habitats on ensuring that the resources are sustained in usable abundance and diversity i* '
generations.
The 'EPA, ;in their'envitdhinental"statement acknowledges. an adverse effect.ofopen water dredged material
disposal on benthie acid aquatic resources during open -water dumping. These effects are direct burial of Iiving
benthic organisms during placement:of dredged material at.the sites. Those.that survive an act of dumping, "
Ms. Linda Ml. Murphy "
Page 23
without large ranges of normal movement, tend toi accumulate any'dredged material constituents that have toxic
effects in the sediment and in -the water column. Biological effeets'of toxicity multiply. The EPA declares that
these. effects are acceptable due to the re -colonization that may happen after a period of time. The proposed
dumping, however, will be done periodically over 20 years with little, if any, recovery time between dumping.
events. Subsequent placement will result in additional effects. it is not clear from the infonnation provided,
however, what effects management through capping would have on the rc=colonization that is�suggested to occur
at the disposal sites. Less certain, and left undefined in the DEIS,-the FE1S, and EPA's consistency
determination; is what trophic variations,.are.iikely.to result from such management activities when management
material is intentionally composed of different physical characteristics than the -ambient, or endemic, benthos
material,'for the long-term. These physicaVehanges will -result in differences in colonization species;.success, and;
duration. For iltese reasons,'the proposed activity is notconsistent with, this policy,
Policy I l .l Ensure the kng-lerur maintenance and health of living niarine resources.
Very little data are provided:on the cumulative effects to the benthic ecology from repeated`disposat activities at
these sites. While the Corps and the EPA have relied on.the DAMOS monitoring program, and provide very little
detail in the revised site monitoring and management plans, there is no evidence that management of
contaminated. material would successfully, encourage re -colonization at the disposal sites by species that may
have originally'inhabited these locations° Moreover, data in -the environmental impact statement, as discussed
above, maybe indicative of material that has migrated.through the water column, originating in dredged material,
And would prove to be hazardous to marine resources typically inhabiting Long Island Sound in these water
depths and temperatures. Therefore, the activity is inconsistent with this policy.
Local Waterfront Revitalization Programs.,
As discussed above, EPA provided.a discussion of the relevance and, in some'instances, consistency, of the
proposed direct federal activity with approved local waterfront revitalization programs (LWRP) that are elements
of the CMP. Unquestionably, the health; vitality and future of each and every. waterfront commuiiityAepends, in
part, on the same_health, vitality and'future.of their waterfront areas and water resources.
EPA's consistency determination, however, is noteworthy, by. the absence of consistency -discussion -for many
policies that received a "Not Applicable" consideration from EPA.
Ali ,I,WRPs have the same basic policies, and EPA does briefly.con'sider LWRP'Policy'#g: Protect fish ard'
I
resources in the coastal area from. the introduction.of hazardous wastes and, other pollutants which
bioaccunrulate in the food chain, or which cause significant sublethal or lethal effects -on those resources.
The information. presented in the EIS, an&ieferenced in the. EPA's consistency determination, demonstrates,
however, that'significant levels of contaminants are found in the sediments at, andnear, the proposed dumpsites.
EPA's proposed designation of open -water disposal sites; using reference data which. reflects the presence of
significant levels of contaminants, particularly concentrations of copper -that is lethal to the important Long
Island Sound commercial lobster fishery, does not protect -aquatic species from the introduction of hazardous
material, and does not,avoid, or eliminate, the introduction and bioaccumuIation of contaminants known to cause
Ms. Linda K Murphy
Page 24
significant adverse effects to-aquatic species. Thus, EPA fails to set:forth any rationaLreason-why its proposed ,
action�yih be'cotisistent with these. local piograin policies. For these reasons,,.the proposed activity is not
consistenfw'ith this policy.
Equally, EPA cites LWRP Policy #35:; Dreclgi►aganddredge spoil dist)osal h codslcrl wateriji4l1 be unclertaken;
in. a ananner Ilial -meets eristing'slate dredging perm t req!a irenients,, aiad protects. sigrtifrcan[ fsh and .ud1dlife . .
habitats; scenic resources, naluryl prolective fealaeres, ijiaporfant agricul[ural lands,..and ivellands.
EPA states that„because'the-sites are-situated withiti-Connecticut Waters anda water quality certif7cation'from the.
appropriate, is'suin` agency would'be granted, the activities are,consistentwith-this policy, or this policy does not
apply to the proposed designatio0s. However, the, far,field an&active mound sediment sample data at each site:.
proposed for designation;show elevated levels of contamination,..and,these constituents, remain eaposed to the
env.ironmeiit and cannot be guaranteed to remain in Connecticut Waters: For direct federal agency activities, the
CZMA requires agencies.to consider-both cumulative and-reasonably°foreseeable effects to coastal uses and
resourc1.es. The presence.of toxins it aobster.and other aquatic organisms' tissue is indicative of the iendencyof .
contaminants to migrate. into NY waters 'and the inability, under current practices and management methods, to
accurately and predictably confine contaminant-lademdredged material at these'sites. The activity is inconsistent -
With these local "program policies. l
EPA's response to the consistency of the proposed. designations with LWRPs policy#31 for, the.applicabl'e local
programs;, is also indicated as being "Not Applicable," even in. light of the LWRP policy standard:requiringthat
".::.those Waters already over-burdened with:contain inants-will be recognized as aAevelopment constraint:" EPA `
argues the site designations WouWegcourage port and.Water=dependent ust�develooment in LIS communities.in,
their discussion of the relevant.local programs small harbor policies (generally; policy 4) by providing far the "...
designation,ofopen-water dredged material disposal sites; in Long•island Sound [Which] will contribute to the
economic ,viability oftraditional small harbor uses and the maritime. identity of the comunity .:.,'",A similar,
incoirect.argument is-made for.water-dependent'.uses. in Som
Sound communiEies.vrith,approved LVJRPs. EPA's
discussion fails. to identify, consider and ;address reasonably-foreseeable cumulative effects of the proposed'
designations and.does not advance.the"State CMP's dual 9li1ectives of. promoting; Water-resource related uses and
Activities, and preservingsensitive.coastal resources. The..activity is inconsistent. with this,policy_,;
Conclusion
The proposed'designation of two open-wiatec disposal sites iri Long Island Sound; the.Central.Long'island Sound:
site,.and the Western, Long Bland: Sound'she; .is inconsistent with the applicable, enforceable policies of the NYS'
Coastal Management Prograin.as it is expressed in. the Long Waaid Sound.Regional Coastal Management
Program and .local waterfront. revitalia�tion programs' m the_ Long Island regi®n. Given an incomplete evaluation
of alternative-place. went options; an: inaccurate pio e'dion of future dredging needs, anticipated dredged material
volumes, and•capacities-of the :subpect sites; the. Incompleteness of information;available to reasonably determine
the foreseeable adverse and beneficial effects of the activity. failure'to.adliere to therequirements of the. ODA for
,Aesigoaiing such siies-and, the absence of a cottiprehensive management pian for•d'redged material in,the Long
Island Sound' region, the ^Department of State objects to the EPA's consistency determination for this activity,
-24- - "
Ms. Linda-.MMurplIT'
Page 25
Alternative
Pursuant .to 15. CFR §930.43(ax3.), alternative measures maybe described which, i f adopted,-would all an
activity to.proceed:in a manner that, is consistent to the,maximum extent practicable with: the enforceable: policies ;
of. the CMP. An alteniati.ve,to the current proposal to designate`two open-water &posal s'it4min central'alid'
western Long-Islaid Sound'that would be consistent with..the.NYSCMP, w®uld.be.a ban on operrwater
disposal;k as was done with the Mud. Dump site in the Atlantic Ocean. "
Pursuai*to 15 CFR §930.43. and §934.1 i2,-you may attempt,to- esolve'these issues with DOS, or request
Secretarial Mediation from.the-U.S. D•epariment:`of Commerce. Given that the niediation,process�may .be lengthy,,
ifydil would like-to continue discussions with this: office, while.pursuing mediation', please call Mr. Sarn Messina
at(51.8) 473-2469:
The
US ofCoinmerceis being noiifed ofihis decisionby•copy-of this letter_
Ge rge.. Staf rd
Director
Division of Coastal Resources
`GRS:vab
cc: OCRM-- John King
NYS DEC
Lillian Barrone, Director of-the Departainent'of Port Commerce, The Port Authority of New York and New
Jersey to :the Subcommittee of the Senate-Environment and Public Works:Committee, May 23,2600-
2
3;2000.2 Piror, James T.,."Dredging, Booscto New Jersey," Ne», Jersey"Biiviness,November, 1997.
.31
4 Appendix F, "Sediment. Analyses Voiume 1, Environmental Laipcict:Siatenaenefor-the Designation-ofDredged,
Material Disposal Sites iN' Central and Western. Long Island Sound, Contiecticui and New' York, UIS.
Environmental Protection, Agency, New England Region and U.S. Army Corps of Engineers;'New England
District; July 2001, Table 4-1,., Long Island Sound Study Sediment Chemistry and Grainsize Rest! 11s, pp. 1/85 et.-
Seq'
"Technical Guidance for Screening Contaminated Sediments," Division of Fish, Wildlife and Marine .
-.Resources, New York_ State Department of Environmental.Conservation,,January 25;-.1999. ..
-25- -
Ms. Linda M. Murphy
Page 26
6 FEIS Appendix F, op. cit.
7 Estrella, Bruce T., Techniques for Live Storage a►rcl Shipping of American Lobster, ynd Ecd., Commonwealth of
Massachusetts, Department of Fisheries, Wildlife & Environmental Law Enforcement, Division of Marine
Fisheries, January 1993. %. '% ..
$ °Polychlorinated Biphenyls (PCBs): A Fact Sheet," Massachusetts Department of Environmental Protection
and United States Environmental Protection Agency, August 1997.