[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Rules and Regulations]
[Pages 75256-75266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27439]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7848-2]
Ocean Disposal; Designation of a Dredged Material Disposal Site
in Rhode Island Sound
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) today designates the
Rhode Island Sound Disposal Site (RISDS) in Rhode Island Sound offshore
of Rhode Island. This action is necessary to provide a long-term
dredged material disposal site for the current and future disposal of
dredged material from Rhode Island, southeastern Massachusetts, and
surrounding harbors (hereinafter referred to as the Rhode Island
Region, or RIR). The site designation is for an indefinite period of
time. The RISDS will be subject to continuing monitoring to ensure that
significant unacceptable, adverse environmental impacts do not occur.
The action is described in the Rhode Island Region Long-Term Dredged
Material Disposal Site Evaluation Project Final Environmental Impact
Statement (FEIS), and the monitoring plan is described in the RISDS
Site Management and Monitoring Plan (SMMP). The SMMP is provided as
Appendix C of the FEIS. Site designation does not itself actually
authorize the disposal of any particular dredged material at a site.
Proposals to dispose of dredged material at a designated site are
subject to project-specific reviews and authorization and still must
satisfy the criteria for ocean dumping.
DATES: This final regulation is effective on January 18, 2005.
ADDRESSES: EPA has established a file supporting this action that
includes this rule, the FEIS and its appendices, including the SMMP,
and other supporting documents. This information
[[Page 75257]]
is available for review by the public as follows:
1. Electronically. You may review and/or obtain electronic copies
of this document and various support documents from the EPA home page
at the Federal Register, http://www.epa.gov/fedrgstr/, or on the EPA
New England Region's homepage at: http://www.epa.gov/region1/eco/ridredge/index.html.
2. In person. The Final Rule, the Final Environmental Impact
Statement (FEIS) which includes the SMMP (Appendix C), and the complete
administrative record for this action are available for inspection at
the following locations: A. EPA New England Library, 11th Floor, One
Congress Street, Suite 1100 (CWQ), Boston, MA 02114-2023. For access to
the documents, call Peg Nelson at (617) 918-1991 between 10 a.m. and 3
p.m. Monday through Thursday, excluding legal holidays, for an
appointment. B. EPA Atlantic Ecology Division, Library, 27 Tarzwell
Drive, Narragansett, RI 02882. For access to the documents, call Mimi
Johnson at (401) 782-3025 between 10 a.m and 3 p.m. Monday through
Thursday, 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. We also are putting copies of the FEIS in
all of the town libraries in the coastal towns in Rhode Island and
southeastern Massachusetts.
FOR FURTHER INFORMATION CONTACT: Ms. Olga Guza, U.S. Environmental
Protection Agency New England Region, One Congress Street, Suite 1100
(CWQ), Boston, MA 02114-2023, telephone (617) 918-1542, electronic
mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
Entities potentially regulated by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material into ocean waters of Rhode Island Sound, under the Marine
Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401 et seq.
(hereinafter referred to as the MPRSA) and its implementing
regulations. The rule is expected to be primarily of relevance to: (a)
Parties seeking permits from the U.S. Army Corps of Engineers, New
England District (Corps) to transport dredged material for the purpose
of disposal into the waters of Rhode Island Sound; and (b) to the Corps
itself for its own dredged material disposal projects. Potentially
regulated categories and entities that may seek to use the RIR dredged
material disposal site may include:
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Examples of potentially
Category regulated entities
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Federal Government Agencies............... U.S. Army Corps of Engineers
Civil Works Projects, and
Other Federal Agencies.
Industry and General Public............... Port Authorities, Marinas
and Harbors, Shipyards, and
Marine Repair Facilities,
Berth Owners.
State, local and tribal governments....... Governments owning and /or
responsible for ports,
harbors, and /or berths,
Government agencies
requiring disposal of
dredged material associated
with public works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that could potentially
be regulated by this action. To determine whether your organization is
affected by this action, you should carefully consider whether your
organization is required to obtain an MPRSA permit (40 CFR 220.1), and
you wish to use the RISDS. EPA notes that nothing in this final rule
alters the jurisdiction or authority of EPA or the types of entities
regulated under the MPRSA. Questions regarding the applicability of
this final rule to a particular entity should be directed to the
contact person listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. Background
In 1972, the Congress of the United States enacted the MPRSA to
address and control the dumping of materials into ocean waters. Title I
of the MPRSA authorized EPA and the Corps to regulate dumping in ocean
waters. Regulations implementing the MPRSA are set forth at 40 CFR
parts 220 through 229. With few exceptions, the MPRSA prohibits the
transportation of material from the United States for the purpose of
ocean dumping except as may be authorized by a permit or authorization
(in the case of Corps projects) issued under the MPRSA. The MPRSA
divides permitting responsibility between EPA and the Corps. Under
Section 102 of the MPRSA, EPA has responsibility for issuing permits
for all materials other than dredged material (e.g., vessels, fish
wastes, burial at sea). Under Section 103 of the MPRSA, the Secretary
of the Army has the responsibility for issuing permits and
authorizations (in the case of Corps projects) for the ocean dumping of
dredged material. This permitting authority has been delegated to the
District Engineers of the Corps' district offices. Determinations to
issue permits and authorizations (in the case of Corps projects) for
dredged material are subject to EPA review and concurrence.
Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1401 et seq.,
gives the Administrator of EPA authority to designate sites and times
where ocean disposal, also referred to interchangeably as ocean
dumping, may be permitted. Section 103(b) further provides that the
Corps should use such EPA designated sites to the maximum extent
feasible. EPA's ocean dumping regulations provide that EPA's
designation of an ocean dumping site is accomplished by promulgation of
a site designation in 40 CFR part 228 specifying the site. On October
1, 1986, the Administrator delegated authority to designate ocean
dredged material disposal sites (ODMDS) to the Regional Administrator
of the EPA Region in which the sites are located. The RISDS site is
located within New England (EPA New England); therefore, this action is
being taken pursuant to the Regional Administrator's delegated
authority. EPA regulations (40 CFR 228.4(e)(1)) promulgated under the
MPRSA require, among other things, that EPA designate ocean dredged
material disposal sites (ODMDS) by promulgation in 40 CFR part 228.
Designated ocean dumping sites are codified at 40 CFR 228.15.
On April 30, 2004, EPA published a draft rule and notice of
availability of a Draft Environmental Impact Statement (DEIS) proposing
the designation of the RISDS as an ODMDS (69 FR 23706). This final rule
designates the site for open water disposal of dredged material. This
site is currently being used by the Corps under the site selection
authority provided by Section 103 of the MPRSA as Site 69B for disposal
of dredged material from the Providence River and Harbor Maintenance
Dredging Project. The site is located in ocean waters of Rhode Island
Sound approximately nine nautical miles (nmi) south of Point Judith,
Rhode Island.
The RISDS will provide a long-term disposal option for the Corps to
maintain deep-draft, international commerce and navigation through
authorized Federal navigation projects and to ensure safe navigation
for public and private entities.
The RISDS will be subject to continuing site management and
monitoring to ensure that unacceptable,
[[Page 75258]]
adverse environmental impacts do not occur. The management of the RISDS
is further described in the SMMP (Appendix C of the FEIS).
The designation is in accordance with 40 CFR 228.4(e) of the Ocean
Dumping Regulations, which allows EPA to designate ocean sites for
disposal of dredged materials.
C. EIS Development
Section 102(c) of the National Environmental Policy Act (NEPA) of
1969, 42 U.S.C. 4321 et seq., requires that Federal agencies prepare an
environmental impact statement (EIS) on proposals for major Federal
actions significantly affecting environmental quality. The objective of
NEPA is to build into agency decisionmaking processes careful
consideration of all environmental aspects of proposed actions,
including evaluation of reasonable alternatives to the proposed action.
While NEPA does not apply to EPA activities in designating ocean
disposal sites under the MPRSA, EPA has voluntarily agreed as a matter
of policy to conduct a NEPA environmental review in connection with
ocean dumping site designations. (63 FR 58045, October 29, 1998,
``Notice of Policy and Procedures for Voluntary Preparation of National
Environmental Policy Act (NEPA) Documents.'') Consistent with this
policy, EPA, in cooperation with the Corps, has prepared a FEIS
entitled, ``Rhode Island Region Long-Term Dredged Material Disposal
Site Evaluation Project,'' which considers the environmental aspects of
site designation in ocean waters of Rhode Island Sound. Anyone wishing
to receive a copy of the FEIS may do so in one of the ways described
above in the ADDRESSES section.
The purpose of today's action is to designate an ocean disposal
site that will meet the long-term dredged material disposal needs in
the RIR. The appropriateness of ocean disposal for any specific,
individual dredging project is determined on a case-by-case basis under
the permit and authorization (in the case of Corps projects) process
under MPRSA.
Designation of an ocean disposal site under 40 CFR part 228 is
essentially a preliminary, planning measure. The practical effect of
such a designation is only to require that if future ocean disposal
activity is permitted and/or authorized (in the case of Corps projects)
under 40 CFR part 227, then such disposal should normally be
consolidated at the designated sites (See 33 U.S.C. 1413(b)).
Designation of an ocean disposal site does not authorize any actual
disposal and does not preclude EPA or the Corps from finding available
and environmentally preferable alternative means of managing dredged
materials, or from finding that certain dredged material is not
suitable for ocean disposal under the applicable regulatory criteria.
Nevertheless, EPA has determined that it is appropriate to designate an
ocean disposal site for dredged material in the ocean waters of Rhode
Island Sound now, because it appears unlikely that feasible alternative
means of managing dredged material will be available to accommodate the
quantity of dredged material that is projected to be generated in this
region in the future.
Proposals for the ocean disposal of dredged materials from
individual projects are evaluated by EPA and the Corps on a case-by-
case basis, taking into account all the disposal alternatives available
at the time of permitting. Beneficial use alternatives will be
preferred over ocean disposal whenever they are practicable.
The FEIS describes the purpose and need for the proposed action and
evaluates a number of alternatives to this action. EPA's analysis of
alternatives considered several different potential ocean disposal
sites for dredged material from Rhode Island, southeastern
Massachusetts, and surrounding harbors, as well as potential
alternative means of managing these dredged materials other than ocean
disposal. As described in the FEIS, the initial screening effort was
established to consider the most environmentally sound, economically
and operationally feasible area for site designation, termed the ``zone
of siting feasibility'' (ZSF). Alternatives evaluated included various
marine sites, upland disposal, beneficial uses, and the no action
alternative.
In addition to considering reasonable distances to transport
dredged material, the ocean disposal analysis considered areas of
critical resources as well as areas of incompatibility for use as a
disposal site. This included but was not limited to such factors as the
sensitivity and value of natural resources, geographically limited
habitats, fisheries and shellfisheries, natural resources, shipping and
navigation lanes, physical and environmental parameters, and economic
and operational feasibility. The analysis was carried out in a tiered
process. The final tier involved further analysis of the no action
alternative and the following alternative sites: Site E and Site W (now
the RISDS). These sites were evaluated and the RISDS was identified as
the preferred alternative for potential ocean disposal site
designation. Management strategies were developed for the preferred
alternative and are described in the SMMP (Appendix C of the FEIS).
In summary, the NEPA process informed EPA's decision to take the
current action designating the RISDS as an ODMDS.
D. Site Description
The RISDS is currently being used by the Corps under its short-term
site selection authority as Site 69B. Since 2003, Site 69B has received
approximately 4.5 million cubic yards of dredged material from the
Providence River and Harbor Maintenance Dredging Project. The RISDS is
in the same exact location and is the same size as Site 69B. The site
is approximately one nautical mile by one nautical mile, for a size of
one square nautical mile (nmi2). The RISDS is located
approximately nine nmi south of Point Judith, Rhode Island and
approximately 6.5 nmi east of Block Island, Rhode Island, with depths
from 115 to128 feet (35 to 39 m). The sediments at the site range from
glacially derived till to soft, silty sand. The corner coordinates
(North American Datum 1983: NAD 83) for the RISDS site, are as follows:
41[deg]14'21'' N, 71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W;
41[deg]13'21'' N, 71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.
E. Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory
Requirements
Five general criteria are used in evaluating possible dredged
material disposal sites for long-term use under the MPRSA (40 CFR
228.5).
General Criteria (40 CFR 228.5)
1. Minimize interference with other activities, particularly
avoiding fishery areas or major navigation areas (40 CFR 228.5(a)). The
first of the five general criteria requires that a determination be
made as to whether the site or its use will minimize interference with
other uses of the marine environment. For this final rule, a
determination was made to overlay individual uses and resources over
GIS bathymetry and disposal site locations. This process was used to
visually determine the maximum and minimum interferences with other
uses of the marine environment that could be expected to occur. Areas
that would interfere with other activities, particularly fishing and
navigation, were eliminated from further consideration. Sites E and W
were the only areas left for consideration. The RISDS (Site W) showed
minimum interference with other activities and was thus selected for
this proposal. The RISDS is not in an area of distinctive
[[Page 75259]]
lobster, shellfish, or finfish resources and thus will not interfere
with lobstering or fishing activities. The RISDS is not located in
shipping lanes or major navigation areas, is not in a geographically
limited fishery area, and has been selected to minimize interference
with fisheries, shellfisheries and regions of commercial and
recreational navigation.
2. Minimize Changes in Water Quality. Temporary water quality
perturbations (during initial mixing) caused by disposal operations
would be reduced to normal ambient levels before reaching areas outside
of the disposal site (40 CFR 228.5(b)). The second of the five general
criteria requires that locations and boundaries of disposal sites be
selected so that temporary changes in water quality or other
environmental conditions during initial mixing caused by disposal
operations anywhere within a site can be expected to be reduced to
normal ambient seawater levels or to undetectable contaminant
concentrations or effects before reaching beaches, shorelines,
sanctuaries, or geographically limited fisheries or shellfisheries. The
RISDS will be used only for dredged material disposal of suitable
sediments as determined by application of MPRSA criteria. Based on
model results and data evaluated as part of the FEIS, disposal of
either sandy or fine-grained material would have no long-term impact on
water quality at the site. In addition, dredged material deposited at
the RISDS will not reach any marine sanctuary, beach, or other
important natural resource area. Further, disposal at the RISDS will be
managed and monitored in accordance with the SMMP (Appendix C of the
FEIS) such that there will be no temporary perturbations in water
quality anywhere outside the site or within the site after allowance
for initial mixing.
3. Interim Sites Which Do Not Meet Criteria (40 CFR 228.5 (c)).
There are no interim sites to be considered under this criterion. The
RISDS (formerly known as Site 69B) is not an interim site as defined
under the Ocean Dumping regulations.
4. Size of sites (40 CFR 228.5(d)). The fourth general criterion
requires that the size of open water disposal sites be limited to
localize for identification and control any immediate adverse impacts
and to permit the implementation of effective monitoring and
surveillance programs to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation. For this final rule, EPA has determined,
based on the information presented in the FEIS, that the RISDS
(formerly known as Site 69B) has been sized to provide sufficient
capacity to accommodate material dredged from within the RIR and to
facilitate effective monitoring and surveillance. The site management
and monitoring plan is described in the RISDS SMMP (Appendix C of the
FEIS).
5. EPA must, wherever feasible, designate dumping sites beyond the
edge of the continental shelf and where historical disposal has
occurred (40 CFR 228.5(e)). The fifth criterion requires EPA, wherever
feasible, to designate ocean dumping sites beyond the edge of the
continental shelf and at other such sites that have historically been
used. Sites beyond the edge of the continental shelf are not
economically feasible due to the extended travel time and associated
expense. In addition, the RISDS encompasses the footprint of Site 69B,
currently in use. Thus, the RISDS is consistent with this criterion.
As discussed briefly above, EPA has determined that the RISDS
satisfies the five general criteria described in 40 CFR 228.5 of the
EPA Ocean Dumping Regulations. More detailed information relevant to
these criteria can be found in the FEIS and SMMP.
In addition to the general criteria discussed above, 40 CFR
228.6(a) lists 11 specific factors to be used in evaluating a proposed
disposal site under the MPRSA to assure that the five general criteria
are met. The RISDS, as discussed below, also is acceptable under each
of the 11 specific criteria. The evaluation of the preferred disposal
sites relevant to the five general and 11 specific criteria is
discussed in substantially more detail in the FEIS and SMMP.
Specific Criteria (40 CFR 228.6)
1. Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1)). The RISDS is in the same
location and is the same size as Site 69B. The RISDS will replace Site
69B. The site is a square area, approximately one nautical mile by one
nautical mile, for a size of one nmi2. The RISDS is located
approximately nine nmi south of Point Judith, Rhode Island and
approximately 6.5 nmi east of Block Island, Rhode Island, with depths
from 115 to 128 feet (35 to 39 meters). The sediments at the site range
from glacially derived till to soft, silty sand. Water depths in the
surrounding areas are between 110 and 118 feet to the north, east, and
south of the site. The southeastern portion of the site shoals more
rapidly than the northern area. The corner coordinates (North American
Datum 1983: NAD 83) of the RISDS site, are as follows: 41[deg]14'21''
N, 71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W; 41[deg]13'21''
N, 71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.
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)). The Corps and EPA initiated informal Endangered Species
Act (ESA) and Essential Fish Habitat (EFH) consultation in January 2003
and formal consultation with publication of the DEIS in coordination
with the National Marine Fisheries Service (NMFS) and U.S. Fish and
Wildlife Service (USFWS). Additional coordination was conducted with
the Commonwealth of Massachusetts and State of Rhode Island. Through
these efforts, data has been obtained on current threatened or
endangered species in the RIR. The plankton community at the RISDS
includes zooplankton (copepods, larval forms of many species of
invertebrates and fish, Foraminifera, and Radiolara) and phytoplankton
(diatoms and dinoflagellates). These organisms display a range of
abundance by season. The populations at or near the site are not unique
to the site and are present over most of the RIR. It is expected that
although small, short-term entrainment losses may occur immediately
following disposal, no long term, adverse impacts to organisms in the
water column will occur.
The benthic community at the RISDS is comprised primarily of
Annelida, Crustacea, and Mollusca. It is expected that short-term
reduction in abundance and diversity at the sites may occur immediately
following disposal, but long term, adverse impacts to benthic organisms
are not expected to occur. Recovery to levels similar to pre-disposal
is expected within a few years after disposal.
The RISDS is located in the ocean waters of Rhode Island Sound,
which is utilized by more than 116 fish species. Seven species appear
consistently dominant among all trawl surveys. These were scup,
butterfish, longfin squid, little skate, winter flounder, silver hake,
and red hake. Atlantic herring, Atlantic mackerel, and ocean pout also
were very abundant. It is expected that impacts to finfish resources
will consist of short-term, local disruptions and the potential loss of
some individual fish of certain non-migratory species. Most of the
finfish species are migratory. Several commercially harvested species
of shellfish occur in the RIR. They are Atlantic surf clams, blue
mussels, lobster, northern quahogs, ocean quahogs, sea scallops, razor
clams, and
[[Page 75260]]
whelks. It is expected that impacts to shellfish within the RISDS will
be short-term and associated with disposal, burial, and loss of habitat
or food. No impacts to shellfish or finfish resources are anticipated
outside of the RISDS.
Many different types of resident, migratory, and coastal birds may
potentially use the RIR as a feeding habitat or resting area. Dozens of
marine and coastal birds migrate through Rhode Island Sound annually.
In addition, the RIR provides limited habitat for most marine mammals
and reptiles. The species that are frequent or occasional visitors to
the RIR are harbor porpoises, white-sided dolphins, minke whales, seals
(harbor, hooded, and harp) and sea turtles (green, Kemp's ridley,
loggerhead, leatherback and hawksbill).
There are 16 federally-listed threatened and endangered species and
five species of ``special concern'' which may utilize the area of the
RISDS. The threatened and endangered species are: whales (humpback,
fin, northern right, sperm, blue and sei), turtles (loggerhead, green,
Kemp's ridley, leatherback, and hawksbill), birds (bald eagle, piping
plover and roseate tern), and insects (American burying beetle and
northeastern beach tiger beetle). The species of ``special concern''
are: common loon, common tern, arctic tern, least tern, and Leach's
storm-petrel. Occurrence of these species varies by season. Use of the
site by whales and birds would be incidental. Sea turtles may be
present in the RISDS during the summer and fall. It is not expected
that disposal activities would have any significant adverse effect on
these species or their critical habitat. With respect to endangered and
threatened species, informal consultation was conducted with the U.S.
Fish and Wildlife Service (USFWS) and the National Marine Fisheries
Service (NMFS). In 2001, EPA prepared a Biological Assessment (BA) for
selection of Site 69B, which is in the exact same location as the
RISDS.
The USFWS and NMFS concurred with EPA's determination that species
under its jurisdiction would not likely be adversely affected by the
proposed action. The BA concludes that the proposed action is not
likely to affect the threatened and endangered species. EPA reinitiated
threatened and endangered species consultation with NMFS and USFWS as
part of the designation process of the RISDS. NMFS concurred on April
8, 2004 and USFWS concurred on April 1, 2004 that there are unlikely to
be any effects on threatened or endangered species or their critical
habitat as a result of the proposed action. The BA is available upon
request by contacting the person listed in the FOR FURTHER INFORMATION
CONTACT section.
The RIR provides Essential Fish Habitat (EFH) for 33 finfish and
five invertebrate species, mostly for adults and juveniles. All of the
species occur along the northeastern Atlantic Coast of the United
States and have EFH designated for waters other than those within the
RIR. In 2001, an EFH assessment was prepared for the selection of Site
69B. The EFH assessment concludes that the proposed action is not
likely to affect those waters and substrate necessary to fish for
spawning, breeding, feeding, or growth to maturity. EPA reinitiated EFH
consultation with NMFS as part of the designation process of the RISDS.
NMFS concurred on April 8, 2004 that the proposed action is not likely
to effect those waters and substrate necessary to fish for spawning,
breeding, feeding, or growth to maturity. EPA has incorporated the NMFS
recommendations into the SMMP (appendix C of the FEIS). The EFH
assessment is available upon request by contacting the person listed in
the FOR FURTHER INFORMATION CONTACT section. The RISDS is not located
in areas that provide limited or unique breeding, spawning, nursery,
feeding, or passage areas.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3). The RISDS is located approximately 8.3 nmi from the
nearest beach or other amenity area. Modeling and sediment transport
studies indicate a very low probability that any dredged material
remaining in the water column following disposal would be transported
more than one nmi. Plumes would be reduced to background concentrations
shortly after disposal. Given the rapid dissipation characteristics of
dredged material plumes and that the vast majority of released
materials settle to the bottom near the release point, dredged material
placed at the RISDS would not adversely affect beaches or similar
amenities. As such, it is expected that impacts would not occur to
beaches, areas of special concern, parks, natural resources,
sanctuaries or refuges since they are either land-based or farther than
8.3 nmi from the proposed disposal site. There also are no marine
sanctuaries or limited fisheries or shellfisheries at or near the
RISDS. Therefore, EPA has determined that dredged material disposal at
the RISDS location should not have any adverse effect on beaches or
other amenity areas, including wildlife refuges or other areas of
biological or recreational significance.
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 RISDS has an estimated capacity of
approximately 20 million cubic yards. However, there is no disposal
site capacity volume restriction. The composition of dredged material
to be disposed at the site is expected to be typical estuarine
sediments dredged from channels, berths, and marinas from harbors and
federal navigation areas within the RIR. The disposal of this material
shall occur at designated buoys or coordinates and would be expected to
be placed so as to concentrate material from each disposal. This
placement is expected to help minimize bottom impacts to benthic
organisms. EPA will make a suitability determination prior to the Corps
issuing any MPRSA permit or authorization (in the case of Corps
projects) for disposal at the RISDS. The site will receive only dredged
material determined to be suitable for ocean disposal that is
transported by either government or private contractor hopper dredges
or ocean-going, bottom-dump barges towed by tugboat. Both types of
equipment release the material at or very near the surface. Dredged
material placed at the RISDS would not be containerized or packaged.
Furthermore, it should be emphasized that the RISDS is being
designated only to receive dredged material; disposal of other types of
material at these sites will not be allowed. It also should be noted
that the disposal of certain other types of material is expressly
prohibited by the MPRSA and EPA regulations (e.g., industrial waste,
sewage sludge, chemical warfare agents). See, e.g., 33 U.S.C. 1414b; 40
CFR 227.5(b). For these reasons, no significant adverse impacts are
expected to be associated with the types and quantities of dredged
material that may be disposed at the RISDS.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).
Surveillance of the site can be accomplished by boat, plane,
helicopter, disposal inspectors aboard barges, scows, and tugboats, or
through radar or satellite. This effort would be conducted jointly by
the EPA, the Corps, and the U.S. Coast Guard. Based on the various
methods that can be utilized it has been determined that monitoring and
surveillance are feasible at the RISDS. The site is readily accessible
for bathymetric surveys and has undergone monitoring, including side-
scan sonar. If field monitoring of the disposal activities is required
because of a future concern for habitat changes or limited resources, a
management decision will
[[Page 75261]]
be made by EPA and the Corps, who share the responsibilities of
managing and monitoring the disposal sites. EPA and the Corps have
prepared a RISDS SMMP (Appendix C of the FEIS). Monitoring shall be
completed in accordance with the SMMP. It is expected that revisions to
the SMMP may be made periodically; revisions will be circulated for
review, coordinated with the affected states and become final when
approved by EPA New England Region in conjunction with the Corps' New
England District. See 33 U.S.C. 1413(c)(3).
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)). The RISDS is located within the
ocean waters of Rhode Island Sound, a water body that is exposed to
wind and wave energy from the northwest Atlantic Ocean. The dominant
tidal flow directions are northwest and southeast. The amplitude of the
tidal velocity decreases with depth (12.7 cm/s at the surface and 7 cm/
s near the bottom. The mean current velocity was 2.5 cm/s directed
toward the west at mid-depth and 1.6 cm/s toward the west at the
bottom. A modeling study performed as part of the Providence River and
Harbor Maintenance Dredging Project EIS examined the likelihood of
erosion and transport of cohesive sediments proposed for placement at
Site 69B (now the RISDS), located at a depth of 128 ft. The study
concluded that a disposal mound placed at 69B would not be dispersive
under any conditions other then the most severe (50-year return period)
hurricane; their results, however, were based on an assumption of
extremely cohesive material and should therefore be viewed as
potentially under-predicting erosion. Areas of the ZSF between 170 and
105 ft, including the north-central portion northeast of Block Island,
were depositional areas with some infrequent sorting and reworking by
waves and currents. The deepest areas here were the most depositional.
It is expected that peak wave induced bottom orbital velocities are
not sufficient to cause significant erosion of dredged material at the
RISDS. For these reasons, EPA has determined that the dispersal,
transport and mixing characteristics, and current velocities and
directions at the RISDS are appropriate to support its designation as a
dredged material disposal site.
7. Existence and Effects of Current and Previous Discharges and
Dumping in the Area (including Cumulative Effects) (40 CFR
228.6(a)(7)). The RISDS is currently being used for disposal activity
pursuant to the Corps' short-term site selection authority under
Section 103(b) of the MPRSA. 33 U.S.C. 1413(b) as Site 69B. This
generally makes the RISDS preferable to more pristine sites that have
either not been used or have been used in the more distant past (40 CFR
228.5(e)). Beyond this, however, EPA's evaluation of data and modeling
results indicates that these past disposal operations have not resulted
in unacceptable or unreasonable environmental degradation, and that
there should be no significant adverse cumulative environmental effects
from continuing to use the RISDS on a long-term basis.
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)). In evaluating whether disposal activity at the RISDS
could interfere with shipping, fishing, recreation, mineral extraction,
desalination, areas of scientific importance and other legitimate uses
of the ocean, EPA considered both the direct effects from depositing
dredged material on the ocean bottom at the proposed sites and the
indirect effects associated with increased vessel traffic that will
result from transportation of dredged material to the RISDS. Areas that
raised concerns with respect to these criteria were removed from
consideration early in the screening process for the FEIS. The RISDS is
not located in shipping lanes and is not an area of special scientific
importance, desalination, fish and shellfish culture or mineral
extraction. Accordingly, depositing dredged material at the RISDS will
not interfere with any of the activities mentioned in this criterion.
Increased vessel traffic involved in the transportation of dredged
material to the disposal site should not impact shipping or activities
discussed above.
9. The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or by Trend Assessment or Baseline Surveys
(40 CFR 228.6(a)(9)). Water and sediment quality analyses conducted at
the site and experience with past disposal in this region have not
identified any adverse water quality or ecological impacts from ocean
disposal of dredged material. Baseline data on which this determination
is based are further described in the FEIS.
10. Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Sites (40 CFR 228.6(a)(10)). Based on the
available evidence, dredged material is not a potential source for the
development or recruitment of nuisance species at the RISDS. Monitoring
results and available data indicate that placement of dredged material
at Site 69B (which is in the same exact location as the RISDS) has not
extended the range of undesirable living organisms, pathogens, degraded
areas, or introduced viable non-indigenous species into the area. Local
opportunistic benthic species characteristic of disturbed conditions
are expected to be present and abundant at any ocean dredged material
disposal site in response to physical deposition of sediments. However,
no recruitment of nuisance species or species capable of harming human
health or the marine ecosystem is expected to occur at the site.
11. Existence at or in Close Proximity to the Sites of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)). As part of the site selection for Site 69B, the
Corps conducted an archaeological assessment entitled, ``Archaeological
Assessment, Remote Sensing, and Underwater Archaeological Survey for
the Providence River and Harbor Maintenance Dredging Project, Rhode
Island, April 12, 2001.'' The archaeological assessment is available
upon request by contacting the person listed in the FOR FURTHER
INFORMATION CONTACT section. The assessment determined that no
significant sites were likely to be found within the areas of interest,
but there was a potential for historic resources because of known
shipwrecks in the vicinity. Additional remote sensing studies were
conducted and no significant cultural resources were identified.
Coordination between EPA and the Corps and the Commonwealth of
Massachusetts and State of Rhode Island are detailed in the FEIS. The
Narragansett Tribe was included as a cooperating agency during the
development of the FEIS. The Tribe has not raised any objections to the
final choice of location for the RISDS.
F. Public Comments
In the preamble to the proposed rule, EPA requested public comment
by June 21, 2004. EPA held two public hearings attended by an estimated
total of 50 people.
June 15, 2002, at 1 p.m.: Lighthouse Inn, 307 Great Island Road,
Galilee, Rhode Island 02882. (One individual presented testimony.)
June 15, 2002, at 7 p.m.: Lighthouse Inn, 307 Great Island Road,
Galilee, Rhode Island 02882. (Three individuals presented testimony.)
[[Page 75262]]
In addition to the testimony and comments provided at the hearings,
EPA also received three sets of written comments on the proposed
action.
EPA received both supportive and non-supportive comments. In
developing the final rule, EPA reviewed and considered all the written
comments as well as those received verbally at the two public hearings.
Following are summaries of the most significant comments and EPA's
responses:
Designation of the RISDS as a Long-Term Disposal Site was Premature
When the Currently Selected Site (69B) Would Remain in Effect Until
2013. This project was initiated at the written request on the Governor
of Rhode Island in September 2000. There was a concern that the
navigational needs of the region were not being met due to the lack of
viable disposal options. In addition, there also was a concern that
additional disposal sites, other than Site 69B, could be selected for
disposal of dredged material. There are several advantages, including
environmental reasons, to a designated long-term disposal site, rather
than a selected site (i.e., the current Site 69B). The site designation
process evaluates the cumulative impacts of placing dredged material
from the RIR at the site. In contrast, the site selection process
requires only project-specific and individual action review of the
environmental consequences at the disposal site associated with its use
and not an evaluation of cumulative impacts of all potential projects.
An EPA-designated site also must have a Site Monitoring and Management
Plan (SMMP), whereas a selected site is not required to have a SMMP.
Moreover, the EPA designation process evaluates dredging needs over
long planning horizons, while the site selection process evaluates each
proposed dredging project on a project-specific basis. Designating a
single long-term site would limit the ocean floor footprint that would
be disturbed, whereas having additional sites selected would
potentially impact more of the ocean bottom.
The DEIS Relies Extensively on Outdated Baseline Data Used by the
USACE to Select Site 69B. The commenter incorrectly assumed that this
DEIS relied only on surveys conducted as part of the Providence River
and Harbor Maintenance Dredging Project EIS and that no other surveys
were conducted. The DEIS contains references and information from
numerous baseline studies that were conducted in 2001-2003 in support
of the RIR EIS. These surveys included: bathymetry, physical
oceanography, water quality, side scan sonar, sediment profile imaging,
benthic infauna, sediment chemistry, finfish trawls and chemistry,
lobster trawls and chemistry, shellfish tows, and chemistry. A complete
listing of surveys conducted is provided in Section 9 of the DEIS.
Information from these surveys is used and referenced throughout
Sections 3 and 4 of the DEIS to establish a baseline for assessing
potential environmental impacts. Survey plans, survey reports, and data
reports were prepared for each of the baseline surveys and approved by
EPA and the Corps. As part of the public review process, these data
reports also were made available to the public at two repositories and
were posted on the project Web page: (http://www.epa.gov/ne/eco/ridredge/index.html). The availability of this information was
published in the Project Public Notice of Availability.
The Rulemaking Should Limit the RISDS Capacity to 8.8 Million Cubic
Yards or Less. EPA believes the comment was based on the estimated
dredging needs derived from a survey of potential users, including the
Corps. Based on that survey, the estimated dredging needs would
generate approximately 8.8 million cubic yards of dredged material.
However, there is a strong likelihood of additional needs in the
future, due in part to the fact that only about 40 percent of the
potential users responded to the survey. The capacity of the disposal
site should not be limited to the current estimate of dredging needs.
The analysis in the DEIS calculated that the preferred alternative
has an estimated physical consolidated capacity of 20 million cubic
yards. The evaluation of impacts conducted in the DEIS was performed
assuming that up to 20 million cubic yards would be disposed of at the
proposed site. The current disposal from the Providence River and
Harbor Maintenance dredging project (projected to be 5.5 million cubic
yards) also was taken into consideration.
The SMMP reflects that the estimated capacity of the site, as
designated by the specified boundaries, is approximately 20 million
cubic yards. This is just an estimated capacity; there is no capacity
restriction on the RISDS.
EPA carefully considered and responded to each comment it received
on the FEIS. A complete Response to Comments Document (Appendix D of
the FEIS) has been prepared which contains all the comments received
and EPA's responses to each of these comments. That document is
available for viewing at the locations specified in the ADDRESSES
section.
G. Action
The FEIS concludes that the RISDS (currently known as Site 69B) may
appropriately be designated for long-term use as a dredged material
ocean disposal site. The site is compatible with the general and
specific factors used for site evaluation.
EPA is publishing this Final Rule to finalize the designation of
the RISDS as an EPA-approved dredged material ocean disposal site. The
monitoring and management of requirements that will apply to this site
are described in the draft SMMP (Appendix C of the FEIS). Management
and monitoring will be carried out by EPA New England in conjunction
with the Corps' New England District.
It should be emphasized that an ocean disposal site designation
does not constitute or imply Corps or EPA approval of open water
disposal of dredged material from any specific project. Before disposal
of dredged material at the site may commence, EPA and the Corps must
evaluate the proposal according to the ocean dumping regulatory
criteria (40 CFR part 227) and authorize disposal. EPA has the right to
disapprove of the actual disposal, if it determines that environmental
requirements under the MPRSA have not been met.
The information generated for this project and referenced in the
FEIS is available for review on line at the address: http://www.epa.gov/region1/eco/ridredge/index.html.
H. Supporting Documents
1. EPA Region 1/USACE NED. 2004. Draft Environmental Impact
Statement Rhode Island Region Long-Term Dredged Material Disposal Site
Evaluation Project. April, 2004.
2. EPA Region 1/USACE New England District. 2004. Final
Environmental Impact Statement Rhode Island Region Long-Term Dredged
Material Disposal Site Evaluation Project. October, 2004.
3. EPA/USACE. 1991. Evaluation of Dredged Material Proposed for
Ocean Disposal-Testing Manual. Environmental Protection Agency,
Washington, DC, and U.S. Army Corps of Engineers, Washington, DC. EPA-
503/8-91/001. February 1991.
4. EPA Region 1/USACE/NED (New England District). 2004. Regional
Implementation Manual for the Evaluation of Dredged Material Proposed
for Disposal in New England Waters. U.S. Army Corps of Engineers New
England District and
[[Page 75263]]
Environmental Protection Agency Region 1, Boston, MA. April 2004.
5. Memorandum to the File from Olga Guza. Subject: Small Businesses
Applications to Place Dredged Material at Site 69B. September 28, 2004.
I. Statutory and Executive Order Reviews
1. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency 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:
(A) 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;
(B) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(C) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(D) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
After considering the anticipated effects of this action in
relation to these criteria, EPA has determined that it is not a
``significant regulatory action'' under Executive Order 12866 and is
therefore not subject to OMB review.
2. Paperwork Reduction Act
Revised in 1995, the PRA is managed by the Office of Management and
Budget through its approval of Information Collection Requests (ICRs)
submitted by Federal agencies. The statute was written and revised to
reduce the information collection burden on the public.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9.
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
et seq.) because it would not require persons to obtain, maintain,
retain, report, or publicly disclose information to or for a Federal
agency.
3. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
For the purposes of assessing the impacts of today's rule on small
entities, a small entity is defined as: (1) A small business based on
the Small Business Administration's (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. EPA has determined that this action will not
have a significant adverse economic impact on small entities because
the ocean disposal site designation does not regulate small entities.
The site designation will only have the effect of providing a long-
term, environmentally acceptable disposal option for dredged material.
This action will help to facilitate the maintenance of safe navigation
on a continuing basis. After considering the economic impacts of
today's final rule on small entities, it has been determined that this
action will not have a significant adverse economic impact on a
substantial number of small entities.
4. The Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act (UMRA), Pub. L. 104-4,
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. Under Section 202 of the UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``Federal Mandates'' that may result in
expenditures to State, local, and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is
needed, Section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of Section 205 do
not apply when they are inconsistent with applicable law. Moreover,
Section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
Section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
EPA has determined that today's action contains no Federal mandates
(under the regulatory provisions of Title II of the UMRA) for State,
local and tribal governments or the private sector. It imposes no new
enforceable duty on any State, local or tribal governments or the
private sector. Similarly, EPA also has determined that this final rule
contains no regulatory requirements that might significantly or
uniquely affect small government entities. Thus, the requirements of
section 203 and 205 of the UMRA do not apply to this rule.
5. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an
[[Page 75264]]
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'' are 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. This final rule addresses the
designation of an ocean disposal site in Rhode Island Sound for the
potential disposal of dredged material. This action neither creates new
obligations nor alters existing authorizations of any State, local or
governmental entities. Thus, Executive Order 13132 does not apply to
this rule. Although Section 6 of the Executive Order 13132 does not
apply to this final rule, EPA did consult with representatives of State
and local governments in developing this rule. In addition, and
consistent with Executive Order 13132 and EPA policy to promote
communications between EPA and State and local governments, EPA
specifically solicited comments on the proposed rule from State and
local officials. A summary of the concerns raised during that
consultation and EPA's response to those concerns is provided in
sections C and D of this preamble.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 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.'' ``Policies that have Tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian Tribes, on the relationship between the Federal government and
the Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes.''
This final rule does not have Tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified in Executive Order 13175.
This final rule designates an ocean dredged material disposal site and
does not establish any regulatory policy with tribal implications.
Thus, Executive Order 13175 does not apply to this rule. Although
Executive Order 13175 does not apply to this rule, EPA consulted with
tribal officials in developing this rule, particularly as it relates to
potential impacts to historic or cultural resources. EPA specifically
solicited additional comment on the proposed rule from tribal officials
but didn't receive any.
7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (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 might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health and
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 the Agency. This final
rule is not an economically significant rule as defined under Executive
Order 12866 and does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. Therefore, it is not subject to Executive Order 13045.
8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
9. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This final rule
does not involve technical standards. Therefore, EPA did not consider
the use of any voluntary consensus standards.
10. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, national origin, or income
level.
No action from this final rule would have a disproportionately high
and adverse human health and environmental effect on any particular
segment of the population. In addition, this rule does not impose
substantial direct compliance costs on those communities. Accordingly,
the requirements of Executive Order 12898 do not apply.
11. 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
[[Page 75265]]
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
January 18, 2005.
12. National Environmental Policy Act of 1969
Section 102(c) of the National Environmental Policy Act of 1969,
Section 4321 et seq., (NEPA) requires Federal agencies to prepare
environmental impact statements (EIS) for major Federal actions
significantly affecting the quality of the human environment. The
object of NEPA is to build into the Agency decisionmaking process
careful consideration of all environmental aspects of proposed actions.
Although EPA ocean dumping program activities have been determined to
be ``functionally equivalent'' to NEPA, it is EPA policy to voluntarily
follow NEPA procedures when designating ocean dumping sites (63 FR
58045, October 29, 1998). In addition to the Notice of Intent published
in the Federal Register on April 6, 2001 (66 FR 18244), EPA and the
Corps published legal notices in local newspapers and issued a press
release inviting the public to participate in DEIS scoping meetings.
Formal scoping meetings were conducted on May 17, 2001 and May 22,
2001. In addition EPA and the Corps have held public workshops and
several working group meetings. A DEIS entitled, ``Rhode Island Region
Long-Term Dredged Material Disposal Site Evaluation Project,'' was
issued on April 30, 2004. A FEIS entitled, ``Rhode Island Region Long-
Term Dredged Material Disposal Site Evaluation Project,'' was issued on
October 22, 2004. The FEIS includes a Response to Comments Document
(Appendix D) and final SMMP (Appendix C).
In addition, EPA submitted a Coastal Zone Consistency Determination
to the State of Rhode Island on September 21, 2004. Coordination
efforts with NMFS and USFWS for ESA and EFH consultation was completed
on April 8 and April 1, respectively, during the DEIS process.
13. The Endangered Species Act
Under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C.
1536(a)(2), Federal agencies are required to ``insure that any action
authorized, funded, or carried on by such agency * * * is not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of habitat
of such species * * *.'' Under regulations implementing the Endangered
Species Act, a Federal agency is required to consult with either the
U.S. Fish and Wildlife Service or the National Marine Fisheries Service
(depending on the species involved) if the agency's action ``may
affect'' endangered or threatened species or their critical habitat (50
CFR 402.14(a)).
In 2001, EPA prepared a BA for the selection of Site 69B, which is
in the exact same location as the RISDS. EPA reinitiated threatened and
endangered species consultation with NMFS and USFWS as part of the
designation process of the RISDS. NMFS concurred on April 8, 2004 and
USFWS concurred on April 1, 2004 that there are unlikely to be any
effects on threatened or endangered species or their critical habitat
as a result of the proposed action. The USFWS and NMFS concurred with
EPA's determination that species under its jurisdiction would not
likely be adversely affected by the proposed action. The BA concludes
that the proposed action is not likely to affect threatened and
endangered species. The BA is available upon request by contacting the
person listed in the For Further Information Contact section.
14. Magnuson-Stevens Fishery Conservation and Management Act
The 1996 Sustainable Fisheries Act amendments to the Magnuson-
Stevens Fishery Conservation and Management Act (MSFCMA) require the
designation of essential fish habitat (EFH) for federally managed
species of fish and shellfish. Pursuant to section 305(b)(2) of the
MSFCMA, Federal agencies are required to consult with the National
Marine Fisheries Service (NMFS) regarding any action they authorize,
fund, or undertake that may adversely affect EFH. An adverse effect has
been defined by the Act as follows: ``Any impact which reduces the
quality and/or quantity of EFH. Adverse effects may include direct
(e.g., contamination or physical disruption), indirect (e.g., loss of
prey, reduction in species' fecundity), site-specific or habitat-wide
impacts, including individual, cumulative, or synergistic consequences
of actions.'' In 2001, an EFH assessment was prepared for the selection
of Site 69B (the RISDS). EPA reinitiated EFH consultation with NMFS as
part of the designation process of the RISDS. NMFS concurred on April
8, 2004 that the designation of the RISDS is not likely to affect those
waters and substrate necessary to fish for spawning, breeding, feeding,
or growth to maturity. EPA has incorporated NMFS recommendations into
the SMMP (appendix C of the FEIS). The EFH assessment concludes that
the proposed action is not likely to affect those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to
maturity. The EFH assessment is available upon request by contacting
the person listed in the FOR FURTHER INFORMATION CONTACT section.
15. Plain Language Directive
Executive Order 12866 requires each agency to write all rules in
plain language. EPA has written this final rule in plain language to
make this final rule easier to understand.
16. Executive Order 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
Today's final rule implements Section 103 of the MPRSA, which
requires that permits for dredged material are subject to EPA review
and concurrence. The final rule will amend 40 CFR 228.15 by
establishing the RISDS. As such, this final rule will afford additional
protection of aquatic organisms at individual, population, community,
or ecosystem levels of ecological structures. Therefore, EPA expects
today's final rule will advance the objective of the Executive Order to
protect marine areas.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: December 8, 2004.
Robert W. Varney,
Regional Administrator, EPA New England.
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In consideration of the foregoing, EPA is amending part 228, chapter I
of title 40 of the Code of Federal Regulations as follows:
[[Page 75266]]
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
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1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
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2. Section 228.15 is amended by adding paragraph (b) (3) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(b) * * *
(3) Rhode Island Sound Disposal Site (RISDS).
(i) Location: Corner Coordinates (NAD 1983): 41[deg]14'21'' N,
71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W; 41[deg]13'21'' N,
71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.
(ii) Size: One square nautical mile.
(iii) Depth: Ranges from 115 to 128 feet (35 to 39 meters).
(iv) Primary use: Dredged material disposal.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to dredged material.
Disposal shall comply with conditions set forth in the most recent
approved Site Management and Monitoring Plan.
* * * * *
[FR Doc. 04-27439 Filed 12-15-04; 8:45 am]
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