[Federal Register Volume 67, Number 129 (Friday, July 5, 2002)]
[Rules and Regulations]
[Pages 44770-44773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16855]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7241-2]
Ocean Dumping; Site Designation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA today designates a new Ocean Dredged Material Disposal
Site (ODMDS) in the Atlantic Ocean offshore Wilmington, North Carolina,
as an EPA-
[[Page 44771]]
approved ocean dumping site for the disposal of suitable dredged
material. This 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 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.
DATES: This final rule is effective on August 5, 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 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.''
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.
The proposed rule was published for public review and comment in
the Federal Register (67 FR 15348 (April 1, 2002)). No comments were
received.
This rule permanently designates the continuing use of the new
ODMDS near Wilmington, North Carolina. The purpose of the 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. Site Designation
The site is located approximately 5 nautical miles offshore Bald
Head Island. The ODMDS occupies an area of about 9.4 square nautical
miles (nmi2). Water depths within the area range from 35-52
feet (ft.). The coordinates of the New Wilmington site 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 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 site are reviewed
below in terms of these 11 criteria (the EIS may be consulted for
additional information).
1. Geographical position, depth of water, bottom topography, and
distance from coast (40 CFR 228.6(a)(1)).
The boundary of the site is given above. The northern boundary of
the 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
[[Page 44772]]
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 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 site is located approximately 5 nautical miles from the coast.
Considering the previous disposal activities of the existing ODMDS and
further distance that the new 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 228.6(a)(4)).
The type of materials to be disposed of within this 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 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 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 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 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 site is
the wreck of the Virginius. This wreck lies outside the eastern
boundary of the 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 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. Action
The EIS concludes that the site may appropriately be designated for
use. The 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 Final 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, however, to suitable dredged material from the
greater Wilmington, North Carolina vicinity.
G. Regulatory Assessments
1. Regulatory Flexibility Act
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 action will not have a significant impact on small
entities since the modification will only have the effect of providing
an environmentally acceptable disposal option for dredged material on a
continued basis. Consequently, this Rule does not necessitate
preparation of a Regulatory Flexibility Analysis.
2. Executive Order 12866
Under Executive Order 12866, EPA must determine whether the
regulatory
[[Page 44773]]
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.
3. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. As
described elsewhere in this preamble, today's final rule would only
have the effect of providing a continual use of an ocean disposal site
pursuant to section 102(c) of MPRSA. Thus, Executive Order 13175 does
not apply to this rule.
4. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not have any reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. As described elsewhere in this
preamble, today's final rule would only have the effect of providing a
continual use of an ocean disposal site pursuant to section 102(c) of
MPRSA.
5. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. As described elsewhere in this
preamble, today's final rule would only have the effect of providing a
continual use of an ocean disposal site pursuant to section 102(c) of
MPRSA. Thus, Executive Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply, EPA did
consult with State officials in developing this rule and no concerns
were raised.
6. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective August 5, 2002.
This Final 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: June 7, 2002.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
In consideration of the foregoing, subchapter H of chapter I of
title 40 is 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, NC; 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. 02-16855 Filed 7-3-02; 8:45 am]
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