147 



resource agencies, including EPA Region II. The PN also stated that this 

 Interagency Committee had agreed that ocean disposal of sediments producing 

 dioxin bioaccumulation of greater than 4 pptr would require de facto capping. 

 De facto capping is simply the action of periodic burial of contaminated 

 sediments with contaminated sediments from the same project area. 



Upon investigation, several issues surfaced. First, all members of the 

 Steering Committee had never agreed to 4 pptr as being a trigger for de facto 

 capping. Most believed that if dioxin was detected in any level, it should be 

 capped. Second, the Steering Committee had never agreed to the interim 

 guidelines period. EPA. the Fish and Wildlife Service and the New Jersey 

 Department of Environmental Protection had all objected to the guidelines 

 according to meeting minutes obtained through FOIA requests. In particular. EPA 

 Region II had been on record with correspondence that the guidelines as 

 promoted by the NYD were not protective enough. It turned out that the 

 guidelines consisted of allowing sediments that caused bioaccumulation in worms 

 upon a 28 day test of up to 25 pptr before ocean disposal would be prohibited. 

 EPA had been advocating for either 10 pptr. or even arguing that something 

 lower might be appropriate. 



The EPA objection is crucial, because according to the 1991 Green Book. 

 EPA and the Corps are supposed "to develop and agree upon case-specific 

 evaluative criteria, based upon technical evaluations made with local input" when 

 tissue concentrations in organisms exposed to dredged material statistically exceed 

 those of organisms exposed to the reference material 38 . The Corps action to issue 

 the PN stating that interim guidelines had been complied with, when in fact 

 interim guidelines agreed to by both the Corps and EPA did not even exist, was 

 misleading to the public and shows that the NYD acted in direct contradiction to 

 its own guidance. 



b. The dioxin bioaccumulation criteria is flawed 



The NYD pressed the use of 25 pptr as the trigger for prohibiting ocean 

 disposal because of its claim that it was recommended by the 1991 Green Book 

 as an FDA "action level." Upon some quick investigation, it was soon discovered 

 that FDA did not in fact have an "action level" for dioxin. It had made a 

 regional advisory opinion for the Great Lakes that 25 pptr was appropriate, based 

 on assumptions about consumption in the Great Lakes region and that people 

 would not recularlv consume fish contaminated with dioxin. 



'1991 Green Book. Section 6.3 



23 



