[Federal Register Volume 67, Number 62 (Monday, April 1, 2002)]
[Proposed Rules]
[Pages 15348-15351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7774]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7165-1]
Ocean Dumping; Proposed Site Designation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA today proposes to designate a new Ocean Dredged Material
Disposal Site (ODMDS) in the
[[Page 15349]]
Atlantic Ocean offshore Wilmington, North Carolina, as an EPA-approved
ocean dumping site for the disposal of suitable dredged material. This
proposed action is necessary to provide an acceptable ocean disposal
site for consideration as an option for dredged material disposal
projects in the greater Cape Fear River, North Carolina vicinity. This
proposed site designation is for an indefinite period of time, but the
site is subject to continuing monitoring to insure that unacceptable
adverse environmental impacts do not occur.
DATE: Comments must be received on or before May 16, 2002.
ADDRESSES: Send comments to: Wesley B. Crum, Chief, Coastal Section,
Water Management Division, U.S. Environmental Protection Agency, Region
4, 61 Forsyth Street, Atlanta, Georgia 30303.
FOR FURTHER INFORMATION CONTACT: Gary W. Collins, 404/562-9395.
SUPPLEMENTARY INFORMATION:
A. Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the
Administrator of EPA the authority to designate sites where ocean
disposal may be permitted. On October 1, 1986, the Administrator
delegated the authority to designate ocean disposal sites to the
Regional Administrator of the Region in which the sites are located.
This proposed designation of a new site offshore Wilmington, North
Carolina, which is within Region 4, is being made pursuant to that
authority.
The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR
Chapter I, Subchapter H, Sec. 228.4) state that ocean dumping sites
will be designated by promulgation in this Part 228. The existing ODMDS
was designated and has been used since 1987. However, site capacity
limitations and a proposed realignment of the ocean bar channel negate
the utility of the existing site. The details of these issues can be
found in the ``Final Environmental Impact Statement for the New
Wilmington Ocean Dredged Material Disposal Site Designation.''
Interested persons may participate in this proposed rulemaking by
submitting written comments within 45 days of the date of this
publication to the address given above.
B. EIS Development
Section 102(2)(C) of the National Environmental Policy Act (NEPA)
of 1969, as amended, 42 U.S.C. 4321 et seq., requires that federal
agencies prepare an Environmental Impact Statement (EIS) on proposals
for legislation and other major federal actions significantly affecting
the quality of the human environment. The object of NEPA is to build
into the Agency decision making process careful consideration of all
environmental aspects of proposed actions. While NEPA does not apply to
EPA activities of this type, EPA has voluntarily committed to prepare
EISs in connection with ocean disposal site designations such as this
(see 39 FR 16186 (May 7, 1974)).
EPA, in cooperation with the Wilmington District of the U.S. Army
Corps of Engineers (COE), has prepared a Final EIS (FEIS) entitled
``Final Environmental Impact Statement for the New Wilmington Ocean
Dredged Material Disposal Site Designation.'' On November 30, 2001, the
Notice of Availability (NOA) of the FEIS for public review and comment
was published in the Federal Register (66 FR 59787 (November 30,
2001)). Anyone desiring a copy of the EIS may obtain one from the
address given above. The public comment period on the final EIS closed
on December 31, 2001.
EPA has received 3 letters on the final EIS. All comments were
either supportive or unconcerned by this proposed action.
This rule proposes the permanent designation for continuing use of
the new ODMDS near Wilmington, North Carolina. The purpose of the
proposed action is to provide an environmentally acceptable option for
the continued ocean disposal of dredged material. The need for the
permanent designation of a new Wilmington ODMDS is based on a
demonstrated COE need for ocean disposal of maintenance dredged
material from the Federal navigation projects in the greater Cape Fear
River area and the issues raised by site capacity and channel
realignment. However, every disposal activity by the COE is evaluated
on a case-by-case basis to determine the need for ocean disposal for
that particular case. The need for ocean disposal for other projects,
and the suitability of the material for ocean disposal, will be
determined on a case-by-case basis as part of the COE's process of
issuing permits for ocean disposal for private/federal actions and a
public review process for their own actions.
For the new Wilmington ODMDS, the COE and EPA would evaluate all
federal dredged material disposal projects pursuant to the EPA criteria
given in the Ocean Dumping Regulations (40 CFR parts 220 through 229)
and the COE regulations (33 CFR 209.120 and 335-338). The COE then
issues Marine Protection, Research, and Sanctuaries Act (MPRSA) permits
after compliance with regulations is determined to private applicants
for the transport of dredged material intended for ocean disposal. EPA
has the right to disapprove any ocean disposal project if, in its
judgment, the MPRSA environmental criteria (Section 102(a)) or
conditions of designation (Section 102(c)) are not met.
The FEIS discusses the need for this site designation and examines
ocean disposal site alternatives to the proposed action. Non-ocean
disposal options have been examined and are discussed in the FEIS.
C. Proposed Site Designation
The proposed site is located approximately 5 nautical miles
offshore Bald Head Island. The proposed ODMDS occupies an area of about
9.4 square nautical miles (nmi\2\). Water depths within the area range
from 35-52 feet (ft.). The coordinates of the New Wilmington site
proposed for final designation are as follows: 33 deg.46' N.,
78 deg.02.5' W.; 33 deg.46' N., 78 deg.01' W.; 33 deg.41' N.,
78 deg.01' W.; 33 deg.41' N., 78 deg.04' W.
D. Regulatory Requirements
Pursuant to the Ocean Dumping Regulations, 40 CFR 228.5, five
general criteria are used in the selection and approval for continuing
use of ocean disposal sites. Sites are selected so as to minimize
interference with other marine activities, to prevent any temporary
perturbations associated with the disposal from causing impacts outside
the disposal site, and to permit effective monitoring to detect any
adverse impacts at an early stage. Where feasible, locations off the
Continental Shelf and other sites that have been historically used are
to be chosen. If, at any time, disposal operations at a site cause
unacceptable adverse impacts, further use of the site can be restricted
or terminated by EPA. The proposed site conforms to the five general
criteria.
In addition to these general criteria in Sec. 228.5, Sec. 228.6
lists the 11 specific criteria used in evaluating a proposed disposal
site to assure that the general criteria are met. Application of these
11 criteria constitutes an environmental assessment of the impact of
disposal at the site. The characteristics of the proposed site are
reviewed below in terms of these 11 criteria (the EIS may be consulted
for additional information).
[[Page 15350]]
1. Geographical Position, Depth of Water, Bottom Topography, and
Distance From Coast (40 CFR 228.6(a)(1))
The boundary of the proposed site is given above. The northern
boundary of the proposed site is located about 5 nmi offshore of Bald
Head Island, North Carolina. The site is approximatelty 9.4 nmi\2\ in
area. Water depth in the area ranges from 35-52 ft.
2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR
228.6(a)(2))
Many of the area's species spend their adult lives in the offshore
region, but are estuary-dependent because their juvenile stages use a
low salinity estuarine nursery region. Specific migration routes are
not known to occur within the proposed site. The site is not known to
include any major breeding or spawning area. Due to the motility of
finfish, it is unlikely that disposal activities will have any
significant impact on any of the species found in the area.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3))
The proposed site is located approximately 5 nautical miles from
the coast. Considering the previous disposal activities of the existing
ODMDS and further distance that the proposed disposal site is offshore
of beach areas, dredged material disposal at the site is not expected
to have an effect on the recreational uses of these beaches.
4. Types and Quantities of Wastes Proposed To Be Disposed of, and
Proposed Methods of Release, Including Methods of Packing the Waste, if
Any (40 CFR 228(a)(4))
The type of materials to be disposed of within this proposed site
is dredged material as described in type and quantity by Section 2 of
the FEIS. Disposal would be by hopper dredge or dump scow. All
disposals shall be in accordance with the approved Site Management and
Monitoring Plan developed for this site (FEIS, Appendix A).
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
Due to the relative proximity of the site to shore and its depth,
surveillance will not be difficult. The Site Management and Monitoring
Plan (SMMP) for the New Wilmington ODMDS has been developed and was
included as an appendix in the FEIS. This SMMP establishes a sequence
of monitoring surveys to be undertaken to determine any impacts
resulting from disposal activities. The SMMP may be modified for cause
by the responsible agency. A copy of the SMMP may be obtained at the
any of the addresses given above.
6. Dispersal, Horizontal Transport and Vertical Mixing Characteristics
of the Area Including Prevailing Current Direction and Velocity, if Any
(40 CFR 228.6(a)(6))
A detailed current study, along with fate modelling of dredged
material, was conducted within the proposed site and can be found
described in the FEIS. The findings of these studies indicate that
transport of disposed material should not present any adverse impacts.
7. Existence and Effects of Current and Previous Discharges and Dumping
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
The existing ODMDS has been used to dispose of the material from
the Cape Fear River project for fifteen years. Subsequent monitoring of
these disposals and the long-term effects show that no adverse impacts
have, or are likely to occur to the area.
8. Interference With Shipping, Fishing, Recreation, Mineral Extraction,
Desalination, Fish and Shellfish Culture, Areas of Special Scientific
Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8))
The shape of the proposed ODMDS was designed to avoid interference
with commericial shipping. The location was also selected to move away
from commercial fishing, particularly trawling bottoms. It is not
anticipated that the proposed site would interfere with any
recreational activity. In addition, mineral extraction, fish and
shellfish culture, and desalination activities do not occur in the
area.
9. The Existing Water Quality and Ecology of the Site as Determined by
Available Data or by Trend Assessment or Baseline Surveys (40 CFR
228.6(a)(9))
Appropriate water quality and ecological assessments have been
performed at the site. Site-specific information concerning the water
quality and ecology at the proposed ODMDS is presented in the FEIS. A
copy of the FEIS may be obtained at any of the addresses given above.
10. Potentiality for the Development or Recruitment of Nuisance Species
in the Disposal Site (40 CFR 228.6(a)(10))
The disposal of dredged materials should not attract or promote the
development of nuisance species. No nuisance species have been reported
to occur at previously utilized disposal sites in the vicinity.
11. Existence at or in Close Proximity to the Site of Any Significant
Natural or Cultural Features of Historical Importance (40 CFR
228.6(a)(11))
The only resource known to exist in close proximity to the proposed
site is the wreck of the Virginius. This wreck lies outside the eastern
boundary of the proposed site. Since no disposal will occur within 600
ft. of the boundary, and the wreck lies in shallower water, placement
of material within the site is not expected to adversely affect it.
E. Site Management
Site management of the New Wilmington ODMDS is the responsibility
of EPA as well as the COE. The COE issues permits to private applicants
for ocean disposal; however, EPA/Region 4 assumes overall
responsibility for site management.
The Site Management and Monitoring Plan (SMMP) for the proposed New
Wilmington ODMDS was developed as a part of the process of completing
the EIS. This plan provides procedures for both site management and for
the monitoring of effects of disposal activities. This SMMP is intended
to be flexible and may be modified by the responsible agency for cause.
F. Proposed Action
The EIS concludes that the proposed site may appropriately be
designated for use. The proposed site is compatible with the 11
specific and 5 general criteria used for site evaluation.
The designation of the New Wilmington site as an EPA-approved ODMDS
is being published as Proposed Rulemaking. Overall management of this
site is the responsibility of the Regional Administrator of EPA/Region
4.
It should be emphasized that, if an ODMDS is designated, such a
site designation does not constitute EPA's approval of actual disposal
of material at sea. Before ocean disposal of dredged material at the
site may commence, the COE must evaluate a permit application according
to EPA's Ocean Dumping Criteria. EPA has the right to disapprove the
actual disposal if it determines that environmental concerns under
MPRSA have not been met.
The New Wilmington ODMDS is not restricted to disposal use by
federal projects; private applicants may also dispose suitable dredged
material at the ODMDS once relevant regulations have been satisfied.
This site is restricted,
[[Page 15351]]
however, to suitable dredged material from the greater Wilmington,
North Carolina vicinity.
G. Regulatory Assessments
Under the Regulatory Flexibility Act, EPA is required to perform a
Regulatory Flexibility Analysis for all rules that may have a
significant impact on a substantial number of small entities. EPA has
determined that this proposed action will not have a significant impact
on small entities since the designation will only have the effect of
providing a disposal option for dredged material. Consequently, this
Rule does not necessitate preparation of a Regulatory Flexibility
Analysis.
Under Executive Order 12866, EPA must determine whether the
regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
This Proposed Rule does not contain any information collection
requirements subject to Office of Management and Budget review under
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: February 8, 2002.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
In consideration of the foregoing, subchapter H of chapter I of
title 40 is proposed to be amended as follows:
PART 228--[AMENDED]
1. The authority citation for part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by adding paragraph (h)(20) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(h) * * *
(20) New Wilmington, North Carolina; Ocean Dredged Material
Disposal Site.
(i) Location: 33 deg.46' N., 78 deg.02.5' W.; 33 deg.46' N.,
78 deg.01' W.; 33 deg.41' N., 78 deg.01' W.; 33 deg.41' N., 78 deg.04'
W.
(ii) Size: Approximately 9.4 square nautical miles.
(iii) Depth: Ranges from 35-52 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged
material from the greater Wilmington, North Carolina vicinity. Disposal
shall comply with conditions set forth in the most recent approved Site
Management and Monitoring Plan.
* * * * *
[FR Doc. 02-7774 Filed 3-29-02; 8:45 am]
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