Mar 18, 2003

EPA Issues Final Rule on HARS-Specific Worm Tissue PCB Criterion

The U.S. Environmental Protection Agency (EPA) has modified the designation of the Historic Area Remediation Site (HARS) by establishing a HARS-specific worm tissue polychlorinated biphenyl (PCB) criterion of 113 parts per billion (ppb) for use in determining the suitability of proposed dredged material for use as remediation material.

This amendment to the HARS designation establishes a pass/fail criterion for evaluating PCBs in worm tissue from bioaccumulation tests performed on dredged material proposed for use at the HARS as remediation material. The PCB criterion will remain in effect until after EPA and the U.S. Army Corps of Engineers (USACE) complete their review of the 2002 scientific peer review comments on the HARS testing evaluation, conduct and respond to the comments on the future scientific peer and revise, as necessary, the HARS testing evaluation process for all contaminants of concern in accordance with the September 27, 2000, Memorandum of Agreement (MOA) between EPA and the USACE.

Among other things, the September 27, 2000, MOA established an interim guidance value of 113 ppb for PCBs in the tissues of bioassayed worms to be considered when determining whether proposed dredged material from the New York/New Jersey Harbor is acceptable for placement at the HARS. At the time of the MOA, the agencies agreed that, while the peer review was not complete, the implementation of this interim change was warranted based upon existing information. This change is designed to ensure that the remedial goals of the HARS will be met.

On signing the MOA, EPA withdrew its concurrence (given prior to the MOA) for the U.S. Gypsum Corp. to place dredged material at the HARS as remediation material. U.S. Gypsum brought suit against the USACE and EPA, and in a July 10, 2002, decision, the U.S. District Court, Southern District of New York, held that the announcement of the 113 ppb interim value in the MOA was de facto rulemaking that should have been the subject of public notice and comment. This rulemaking is intended to address the court's concerns.

This final regulation is effective on April 16, 2003.

You may obtain electronic copies of this document and various support documents from the EPA home page at the Federal Register, or on EPA Region 2's home page at

The official record of this rulemaking is available for inspection at the EPA Region 2 Library, 16th Floor, 290 Broadway, New York, N.Y. 10007-1866. For access to the docket materials, call Rebecca Garvin at (212) 637-3185 between 9 a.m. and 3:30 p.m. Monday through Friday, excluding legal holidays, for an appointment. The record also is available for viewing at EPA Region 2's Edison, N.J. Office Library, 2890 Woodbridge Avenue, Building 209, MS- 245, Edison, N.J. 08837. For access to the docket materials at this facility, call Ms. Margaret Esser (732) 321-6762 between 9 a.m. and 3:30 p.m. Monday through Friday, excluding legal holidays, for an appointment. The EPA public information regulation (40 CFR part 2) provides that a reasonable fee may be charged for copying.