[Federal Register Volume 61, Number 202 (Thursday, October 17, 1996)]
[Proposed Rules]
[Pages 54112-54120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26630]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-5637-4]
Ocean Dumping; Amendment of Site Designation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend
the site designation for the San Francisco Deep Ocean Disposal Site
(SF-DODS), an existing deep ocean dredged material disposal site
located off San Francisco, California, by extending the time period
during which the disposal site would be managed under an interim
disposal volume limit. A range of options are presented to solicit
public comment on the appropriate length for an interim extension, and
for an appropriate interim disposal volume limit. This amendment is
necessary in order to allow the SF-DODS to remain open for disposal of
dredged material from authorized projects, while documentation
addressing comprehensive long term dredged material management for the
region is being completed. The amendment is therefore intended to
provide the region with continued access to an environmentally
appropriate dredged material disposal alternative, without precluding
any options for the comprehensive long-term management planning process
now underway.
The SF-DODS would remain designated for the disposal of suitable
dredged material removed from the San Francisco Bay region and other
nearby harbors or dredging sites. However, EPA would not set a
permanent annual disposal volume limit at this time, as originally
envisioned in the August 11, 1994 site designation Final Rule. Instead,
EPA is proposing to extend the existing interim management of the site
for some period and volume limit yet to be determined. A decision on a
permanent disposal volume limit would be made by the end of this
extension period, based on the comprehensive dredged material
management planning process or based on a separate alternatives-based
EPA evaluation of the need for ocean disposal. All other aspects of the
August 11, 1994 SF-DODS designation Final Rule, including the
provisions of the Site Management and Monitoring Plan (SMMP) would
remain in full effect.
DATES: Comments must be received on or before November 18, 1996.
ADDRESSES: Send questions or comments to: Mr. Allan Ota, Ocean Disposal
Coordinator, U.S. Environmental Protection Agency, (EPA) (W-3-3), 75
Hawthorne Street, San Francisco, California 94105, telephone (415) 744-
1980.
FOR FURTHER INFORMATION: Contact Mr. Allan Ota, Ocean Disposal
Coordinator, U.S. Environmental Protection Agency, Region 9 (W-3-3), 75
Hawthorne Street, San Francisco, California 94105, telephone (415) 744-
1980.
SUPPLEMENTARY INFORMATION: The primary supporting documents for this
designation amendment are the Final Environmental Impact Statement
(EIS) for Designation of a Deep Water Ocean Dredged Material Disposal
Site off San
[[Page 54113]]
Francisco, California (August 1993), the Long-Term Management Strategy
(LTMS) for the Placement of Dredged Material in the San Francisco Bay
Region, Draft Policy Environmental Impact Statement/Programmatic Impact
Report (April, 1996), and the SF-DODS designation Final Rule [40 CFR
228(b)(70), 59 FR 41243 (August 11, 1994), subsequently republished as
40 CFR 228.15(l)(3), 59 FR 61128 (November 29, 1994)], all of which are
available for public inspection at the following locations:
A. Water Docket, MC-4101, Environmental Protection Agency, 401 M
Street, SW, Washington, D.C. 20460.
B. EPA Region 9, Library, 75 Hawthorne Street, 13th Floor, San
Francisco, California.
C. ABAG/MTC Library, 101 8th Street, Oakland, California.
D. Alameda County Library, 3121 Diablo Avenue, Hayward, California.
E. Bancroft Library, University of California, Berkeley, California.
F. Berkeley Public Library, 2090 Kittredge Street, Berkeley,
California.
G. Daly City Public Library, 40 Wembley Drive, Daly City, California.
H. Environmental Information Center, San Jose State University, 125
South 7th Street, San Jose, California.
I. Half Moon Bay Library, 620 Correas Street, Half Moon Bay,
California.
J. Marin County Library, Civic Center, 3501 Civic Center Drive, San
Rafael, California.
K. North Bay Cooperative Library, 725 Third Street, Santa Rosa,
California.
L. Oakland Public Library, 125 14th Street, Oakland, California.
M. Richmond Public Library, 325 Civic Center Plaza, Richmond,
California.
N. San Francisco Public Library, Civic Center, Larkin & McAllister, San
Francisco, California.
O. San Francisco State University Library, 1630 Holloway Avenue, San
Francisco, California.
P. San Mateo County Library, 25 Tower Road, San Mateo, California.
Q. Santa Clara County Free Library, 1095 N. Seventh Street, San Jose,
California.
R. Santa Cruz Public Library, 224 Church Street, Santa Cruz,
California.
S. Sausalito Public Library, 420 Litho Street, Sausalito, California.
T. Stanford University Library, Stanford, California.
A. Regulated Entities
Entities potentially regulated by this action are persons or
entities seeking permits to dump dredged material into ocean waters at
the SF-DODS, under the Marine Protection, Research, and Sanctuaries
Act, 33 U.S.C. 1401 et seq. The rule would primarily be of relevance to
parties in the San Francisco area seeking permits from the U.S. Army
Corps of Engineers for the ocean dumping of dredged material at the SF-
DODS as well as the U.S. Army Corps of Engineers itself. Potentially
regulated categories and entities seeking to use the SF-DODS include:
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Examples of potentially
Category regulated entities
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Industry............................... Ports seeking dredged material
ocean dumping permits for SF-
DODS use.
Marinas seeking dredged
material ocean dumping permits
for SF-DODS use.
Shipyards seeking dredged
material ocean dumping permits
for SF-DODS use.
Berth owners seeking dredged
material ocean dumping permits
for SF-DODS use.
State/local/tribal Governments......... Local governments owning ports
or berths seeking dredged
material ocean dumping permits
for SF-DODS use.
Federal Government..................... US Army Corps of Engineers for
its projects proposing to use
the SF-DODS.
Federal agencies seeking
dredged material ocean dumping
permits for SF-DODS use.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by the
action. This table lists types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated. To determine whether your
organization is potentially regulated by this action, you should
carefully consider whether your organization is subject to the
requirement to obtain an ocean dumping permit in accordance with the
Purpose and Scope provisions of Section 220.1 of Title 40 of the Code
of Federal Regulations, and you wish to use the SF-DODS. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION, CONTACT section.
B. Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act (MPRSA) of 1972, as amended, 33 U.S.C. Sections 1401 et seq., gives
the Administrator of EPA authority to designate sites where ocean
dumping may be permitted. 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. This action, proposing to amend an August 11, 1994
SF-DODS designation Final Rule, is being made pursuant to that
authority.
The EPA Ocean Dumping Regulations (40 CFR 228.4) state that ocean
dumping sites will be designated by publication pursuant to 40 CFR Part
228. This proposed site designation amendment is being published as
proposed rulemaking in accordance with Section 228.4(e) of the Ocean
Dumping Regulations, which permits the designation of ocean disposal
sites for dredged material.
By publication of a Final Rule in the Federal Register on August
11, 1994 (59 Fed. Reg. 41243), EPA Region 9 designated SF-DODS as an
ocean dredged material disposal site. The center of the SF-DODS is
located approximately 49 nautical miles (91 kilometers) west of the
Golden Gate and occupies an area of approximately 6.5 square nautical
miles (22 square kilometers). Water depths within the area range
between approximately 8,200 to 9,840 feet (2,500 to 3,000 meters). The
center coordinates of the oval-shaped site are: 37 deg.39.0' North
latitude by 123 deg.29.0' West longitude (North American Datum from
1983), with length (north-south axis) and width (west-east axis)
dimensions of approximately 4 nautical miles (7.5 kilometers) and 2.5
nautical miles (4.5 kilometers), respectively.
In its August 11, 1994 Final Rule, EPA designated SF-DODS for
continued use for a period of 50 years, with an interim capacity of six
million cubic yards of dredged material per calendar year until
December 31, 1996. It was assumed that by that date, a comprehensive
evaluation of long term dredged material management needs for the
overall San Francisco Bay region would have been conducted, which would
have evaluated the potential for alternatives to ocean disposal, and
which could therefore serve as a basis for establishing a permanent
disposal volume limit for SF-DODS. (Alternatively, the August 11, 1994
site designation Final Rule provided for EPA to establish a permanent
disposal site volume based on a separate alternatives-based EPA
evaluation of the need for ocean disposal.)
Since the August 11, 1994 site designation Final Rule, significant
effort
[[Page 54114]]
has in fact gone toward development of a comprehensive dredged material
management approach for the region. In particular, the multi-agency
draft Policy Environmental Impact Statement/Programmatic Environmental
Impact Report entitled Long-Term Management Strategy (LTMS) for the
Placement of Dredged Material in the San Francisco Bay Region (LTMS
draft EIS/R) was published on April 17, 1996. The LTMS draft EIS/R
evaluates the overall dredged material management needs and disposal or
reuse potential for the San Francisco Bay area over the next 50 years,
including not only ocean disposal, but also in-Bay disposal (placement
at designated sites within the San Francisco estuary that are managed
under Section 404 of the Clean Water Act), and upland or wetland
disposal or reuse. The policy alternatives evaluated in the LTMS draft
EIS/R include varying levels of dredged material disposal or reuse in
each of these three placement environments. The potential environmental
and socioeconomic effects of each policy alternative is evaluated in
the LTMS draft EIS/R. Selection of one of the alternative policy
approaches set forth in the LTMS draft EIS/R could therefore serve as
an appropriate basis for designating a permanent disposal volume limit
for SF-DODS, as originally envisioned. However, the LTMS Final EIS/R
process is not yet complete. Public comments on the LTMS draft EIS/R
were accepted through July 19, 1996, and over 60 substantive comment
letters were received, many of which suggested that significant changes
should be made before finalizing the EIS/R.
The August 11, 1994 site designation Final Rule provides for EPA to
base the establishment of a permanent disposal site volume limit for
the SF-DODS on a separate alternatives-based evaluation of the need for
ocean disposal, conducted by EPA, in the event that the LTMS EIS/R
process was not completed by December 31, 1996. EPA believes that the
record represented by the information and evaluations presented in its
original site designation EIS and rulemaking, together with those
presented in the LTMS draft EIS/R and the public comments received on
the draft EIS/R, is adequate as a basis for designating a permanent
disposal volume limit for SF-DODS. However, in order to provide for a
maximum of public input to the overall policy approach that should be
selected for long-term dredged material management (including the role
of ocean disposal), EPA is proposing to extend site use under an
interim disposal volume limit, and not to make a permanent volume limit
determination at this time. Extending site use at this time under an
interim disposal volume limit would allow the LTMS EIS/R process to
continue, without precluding final selection of any of the LTMS EIS/R's
overall dredged material management alternatives.
Therefore, EPA is proposing to extend the period during which the
SF-DODS would be managed under an interim disposal volume limit. In
this proposed rule, options are presented to solicit public comment on
the appropriate length for an interim extension, and for an appropriate
interim disposal volume limit.
Other than establishing an interim disposal volume limit and
setting a new timeframe for designating a permanent disposal volume
limit, the provisions of the August 11, 1994 site designation Final
Rule would be unchanged by the amendments described in this proposed
Rule. In particular, the August 11, 1994 site designation Final Rule
stipulated that site use is subject to implementation of a specific
Site Monitoring and Management Plan (SMMP) for the SF-DODS, and that
the monitoring provisions of this SMMP would be fully implemented
during the first two years of site use independent of actual volumes of
dredged material disposed at the site. This proposed rule would
continue the requirement to fully implement monitoring during any
extended period of interim site management. Thereafter, consistent with
the August 11, 1994 site designation Final Rule, the EPA Region 9
Regional Administrator may establish a minimum annual disposal volume
(not to exceed 10 percent of the designated site capacity at any time)
below which this monitoring program need not be fully implemented.
The SMMP provisions in the Final Rule are closely related to EPA
Region 9's previous proposals on site monitoring and management. These
proposals have been put forth for public review and comment on at least
two occasions. First, EPA Region 9 outlined its proposals concerning
site monitoring and management in the Preamble accompanying the
Proposed Rule designating the SF-DODS. EPA Region 9 published the
Proposed Rule in the Federal Register on February 17, 1994 (59 FR
7952), and held open a public comment period on the Proposed Rule until
March 18, 1994. Second, EPA Region 9 completed a draft of a separate
SMMP document and made this document available for public review and
comment. EPA Region 9 published this SMMP document as an EPA Public
Notice on April 20, 1994 and accepted comments on this document until
June 6, 1994. The SMMP provisions in the August 11, 1994 Final Rule
were determined after considering the public comments received in
response to both the Proposed Rule Preamble and the SMMP document. None
of the requirements of the SMMP would be changed by this proposed rule.
C. Interim Disposal Volume Limit
A range of approaches to determining an appropriate interim
disposal volume limit for SF-DODS is being considered by EPA for this
proposed rule. These include: (1) revising the interim disposal limit
based on an updated estimate of overall dredging and potential ocean
disposal needs for the San Francisco area; (2) revising the interim
disposal limit based on one of the alternatives presented in the LTMS
draft EIS/R; (3) revising the interim disposal limit to accommodate
only those specific projects currently approved for ocean disposal
(plus an additional volume to accommodate a limited number of new
projects in the near term); and (4) leaving unchanged the existing
interim disposal limit of six million cubic yards per year. Each of
these options is discussed in the following paragraphs. (Options for
the duration of the interim site management period are discussed in
Section D, INTERIM SITE MANAGEMENT PERIOD, below.) Note that EPA's
determination, based on the site designation EIS and rulemaking, and
subsequent site monitoring results (see Section E--Compliance with
Ocean Site Designation Criteria) is that no significant adverse
environmental impacts are expected in association with the original
interim disposal volume limit of six million cubic yards per year. All
of the options discussed below for a continued interim disposal volume
limit reflect either a decrease, or no change, in potential disposal
activity at the SF-DODS. (No option considers an increase in the
disposal volume limit, because the August, 1993 final EIS did not
evaluate whether there would be potential adverse impacts at volumes
greater than six million cubic yards per year. That August, 1993 final
EIS would need to be supplemented with new analyses before greater
volumes could be considered.) Therefore, no significant adverse
environmental impacts are expected for any of these options.
EPA is specifically soliciting public comment on the following
range of options, which we believe covers the full spectrum of possible
actions. However, EPA will also consider
[[Page 54115]]
comments addressing modifications to these options. Comments should
address interim disposal volume limits both from the standpoint of
minimizing overall environmental impacts, and from the standpoint of
providing adequate disposal volume for projects that may need dredging
during the interim period. Note that additional public comment will be
solicited as part of EPA's designation of a permanent disposal volume
limit.
Volume Option 1: Interim disposal volume limit based on new
estimate of long-term dredging need. EPA's original designation of a
six million cubic yard annual disposal limit for the SF-DODS was based,
in part, on the estimate of long-term dredging needs for the San
Francisco Bay area contained in the site designation EIS (August,
1993). At that time, it was estimated that 400 million cubic yards of
dredged material would be generated in the area over 50 years, for a
long-term average of eight million cubic yards per year. It was assumed
that up to 80 percent of this estimated eight million cubic yard annual
average could be found to meet the ocean disposal criteria of 40 CFR
Part 228 as being physically, chemically, and biologically suitable for
ocean disposal at the SF-DODS. Modeling and other evaluations conducted
for the site designation EIS (August, 1993) were therefore based on the
site potentially accommodating a maximum of six million cubic yards per
year (about 80 percent of the estimated eight million cubic yards per
year total dredging).
Since EPA's August, 1993 site designation EIS, estimated long-term
dredging needs for the San Francisco Bay area have decreased
substantially. The LTMS draft EIS/R (April, 1996) documents the current
``high end'' estimate of long-term dredging needs for the San Francisco
Bay area as being approximately 300 million cubic yards over the next
50 years. This represents a 25 percent reduction from the earlier 400
million cubic yard long-term estimate. Much of this estimated decrease
is attributable to military base closures announced since EPA's August
1993 site designation EIS was being prepared. Based on the new LTMS
estimate of 300 million cubic yards over 50 years, the average overall
dredging need decreases from eight million to six million cubic yards
per year. Under the same assumption used in the site designation EIS
(August, 1993) that up to 80 percent of this dredged material may be
determined to be suitable for ocean disposal, a long-term annual
average of 4.8 million cubic yards of dredged material would now be
assumed to be potentially suitable for ocean disposal at the SF-DODS.
Revising the interim disposal volume limit for the SF-DODS to 4.8
million cubic yards of suitable dredged material per year is not
expected to have an impact on completion of existing, authorized
projects. The Port of Oakland -42-Foot Deepening Project and the Port
of Richmond -38-Foot Deepening Project, both of which are already
authorized, will each generate over two million cubic yards of dredged
material authorized for disposal at the SF-DODS. Therefore, even if
both these projects were to conduct the majority of their authorized
dredging within the same, single calendar year, a revised interim
disposal volume limit of 4.8 million cubic yards per year would
accommodate them both with little or no delay. In this event, however,
only limited additional volume would be available for other projects
during that year. (For example, ample capacity would be available for
additional projects the following year under a two-year interim site
management extension, but no additional capacity for other projects
would be available under a one year extension.) In addition, in
combination with existing capacity at aquatic disposal sites within the
San Francisco Bay and estuary (managed under the Clean Water Act),
reducing the interim disposal volume limit at the SF-DODS to 4.8
million cubic yards per year is not expected to cause an overall
shortage of available disposal capacity in the region during the near
term.
There are no indications that the disposal volume limit should be
reduced due to any direct environmental impacts. In addition, changing
the existing interim disposal volume limit before the LTMS EIS/R
process is complete could be viewed by some as prejudicial to the
outcome of that process. Comments supporting this option would be
particularly helpful if they address why a reduced interim disposal
volume limit would be appropriate, and why any outcome of the LTMS EIS/
R process would not be affected by such a reduction at this time.
Volume Option 2: Interim disposal volume limit based on
alternatives presented in the LTMS draft EIS/R. In addition to the No
Action alternative, the LTMS draft EIS/R (April, 1996) evaluated three
``policy alternatives'' for overall management of dredged material
estimated to be generated in the San Francisco Bay area over the next
50 years. Each of the alternatives retained for detailed evaluation
included either ``medium'' or ``low'' levels of ocean disposal.
``Medium'' ocean disposal was defined in the LTMS draft EIS/R to be 40
percent of the average annual volume of dredged material expected to be
found suitable for ocean disposal, or approximately two million cubic
yards per year. ``Low'' ocean disposal was defined as 20 percent of the
ocean suitable dredged material, or approximately one million cubic
yards per year.
Although alternative 50-year overall management approaches having
either ``medium'' or ``low'' ocean disposal volumes are being
considered as long-term LTMS goals, this proposal is intended to
address short term needs while that longer term process is completed.
At the present time, multi-user upland or wetland reuse sites capable
of managing these volumes of dredged material are not available. Until
additional upland or wetland reuse sites become available, sufficient
capacity must be retained at a combination of the SF-DODS and the
existing in-Bay disposal sites to manage the dredged material generated
by necessary projects.
Given that the Port of Oakland and Port of Richmond projects have
already been authorized, setting the interim disposal volume limit to
coincide directly with either the ``medium'' (two million cubic yards
per year) or ``low'' (one million cubic yards per year) long-term LTMS
goals would not allow consideration of additional projects for ocean
disposal during the interim period. With upland alternatives extremely
limited at present, this option could cause an overall shortage of
available disposal capacity in the region during the near term, and
could have the effect of forcing state and federal regulators to rely
almost exclusively on existing sites within the San Francisco Bay and
estuary for disposal of suitable dredged material from any new dredging
projects during the interim period. Furthermore, the Oakland and
Richmond projects could not be dredged simultaneously. The Oakland
project is already in the midst of dredging, but the Richmond project
had not yet begun dredging at the time this proposed rulemaking was
prepared. It is likely that construction of the Port of Richmond
project would be delayed for at least one year under this option. Such
a delay could jeopardize the federal funding for this project.
The factors discussed above would be re-evaluated when determining
an appropriate permanent disposal volume limit for the SF-DODS, once
the programmatic LTMS EIS/R process has been completed.
Comments supporting this option would be particularly helpful if
they include specific recommendations
[[Page 54116]]
regarding which LTMS draft EIS/R alternative an ocean disposal volume
limit should be based on, and should provide specific information
supporting such recommendations.
Volume Option 3: Interim disposal volume limit based on specific
projects currently approved for ocean disposal (plus an additional
volume to accommodate a limited number of new projects in the near
term). Under this option, EPA would establish an interim disposal
volume limit for the SF-DODS that is sufficient to allow for the
potential simultaneous construction of the already authorized Port of
Oakland and Port of Richmond deepening projects, plus an additional
volume to accommodate a limited number of new dredging projects. For
example, an interim disposal volume limit of from five million cubic
yards of suitable dredged material per year would provide for
construction of both the Oakland and Richmond projects in one year,
plus approximately an additional one million cubic yards from other
projects during that same year. (If some additional volume for other
projects were not included, an overall shortage of available disposal
capacity in the region could occur during the near term, and could have
the effect of forcing state and federal regulators to rely almost
exclusively on existing sites within the San Francisco Bay and estuary
for disposal of suitable dredged material from any new dredging
projects during the interim period.)
In contrast to Option 2, this option would not delay and possibly
put at risk the federal funding for either the Port of Oakland or Port
of Richmond deepening projects. Also, it should allow state and federal
regulators to continue to evaluate whether ocean disposal may be a less
damaging, practicable alternative to in-Bay disposal for some new
dredging projects in the near term (prior to completion of the LTMS
EIS/R process and implementation of a comprehensive, long-term
management plan for the San Francisco Bay area). As with the other
options discussed, no significant adverse environmental impacts would
be expected in association with disposal of five million cubic yards of
suitable dredged material per year at the SF-DODS. In addition, in
combination with existing capacity at aquatic disposal sites within the
San Francisco Bay and estuary (managed under the Clean Water Act),
reducing the interim disposal volume limit at the SF-DODS to five
million cubic yards per year would not be expected to cause an overall
shortage of available disposal capacity in the region during the near
term.
Although this option would allow only slightly more ocean disposal
than Option 1 (which would allow up to 4.8 million cubic yards per
year), this option represents a conceptual change in the basis under
which the SF-DODS has been managed during the first two years of
interim site management. Only currently authorized projects plus a
small additional volume for other potential projects would be
accommodated.
Comments supporting this option would be particularly helpful if
they include specific recommendations regarding volume, and should
provide specific supporting information.
Volume Option 4: Retain existing six million cubic yards per year
interim disposal volume limit. Modeling and other evaluations conducted
for both the site designation EIS (August, 1993) and the site
designation Final Rule (August 11, 1994), support EPA's determination
that no significant adverse environmental impacts are expected in
association with disposal of up to six million cubic yards of suitable
dredged material per year at the SF-DODS. Site monitoring studies
conducted to date, and summarized briefly in Section E, below, are
consistent with the EIS predictions and confirm that the site is
performing as predicted. Therefore, no significant adverse
environmental impacts would be expected if the existing interim
disposal volume limit (up to six million cubic yards of dredged
material per year) were to be retained during an extended period of
interim site management.
Similar to Option 1 and Option 3, this option would accommodate the
already authorized Port of Oakland and Port of Richmond dredging
projects without delay, and would have capacity for additional near
term projects for which ocean disposal may be found to be a practicable
alternative. In combination with existing capacity at aquatic disposal
sites within the San Francisco Bay and estuary (managed under the Clean
Water Act), an interim disposal volume limit at the SF-DODS of six
million cubic yards per year is not expected to cause an overall
shortage of available disposal capacity in the region during the near
term.
Retaining the existing disposal volume limit would require that the
August 11, 1994 site designation Final Rule be amended only by changing
the dates included therein, and thus would minimize any confusion among
regulated entities that might otherwise result from establishing a
different interim management volume for the SF-DODS. This option most
clearly leaves open all options for comprehensive long-term dredged
material management (including the role of ocean disposal); it would
not in any way prejudice consideration of a permanent disposal volume
limit based on the ongoing comprehensive management planning process.
D. Interim Site Management Period
The primary purpose in extending the interim disposal volume limit
for the SF-DODS is to allow for completion of the public process
associated with finalizing the LTMS EIS/R. The draft LTMS EIS/R was
published on April 19, 1996, and the public comment period closed on
July 19, 1996. Over 60 substantive comment letters were received on the
LTMS draft EIS/R. Several comment letters expressed the view that the
programmatic document was inadequate and that a revised draft EIS/R
should be prepared. Other comment letters recommended that a detailed
Management Plan, outlining the specific actions that state and federal
agencies would take to implement any of the alternatives in the draft
EIS/R, should be prepared prior to finalizing the programmatic EIS/R.
It is apparent that an LTMS final EIS/R and Record of Decision will
not be available in time to serve as the basis for establishing a
permanent disposal volume limit for the SF-DODS before the December 31,
1996 expiration of the interim period specified in the August 11, 1994
site designation Final Rule. Therefore, EPA is proposing to extend the
interim site management period for the SF-DODS. Five options are
presented below to solicit public comment on the appropriate length of
an extended interim site management period. (Options for the disposal
volume limit that would apply during the interim site management period
are discussed in Section C, DISPOSAL VOLUME LIMIT, above.)
EPA is specifically soliciting public comment on this range of
options; however, EPA will also consider comments addressing other
interim site management periods, including alternatives that involve no
extension at all. Such comments should address how an alternative can
reasonably provide for completion of the LTMS final EIS/R, or for
development of a separate EPA evaluation of the overall need for ocean
disposal (as provided in the August 11, 1994 site designation Final
Rule).
Extension Option 1: Two-year extension to interim site management.
It is expected that relatively substantial revisions to the LTMS draft
EIS/R will be required before the final EIS/R can be published and a
Record of Decision signed. A two-year interim site
[[Page 54117]]
management extension should allow reasonable time for completion of the
LTMS Final EIS/R process, including the approximate four month period
necessary to conduct the rulemaking process for a permanent SF-DODS
disposal volume limit. A two-year period would also be a sufficient
time to allow the approved Port of Oakland deepening project to be
completed, and to allow planning and contracting for the approved Port
of Richmond deepening project to proceed with reasonable
predictability. Ocean disposal would remain a feasible alternative to
consider for upcoming projects. At the same time, a permanent disposal
volume limit could be established before the end of the two-year
period, if the LTMS final EIS/R process is completed earlier, or if EPA
were to prepare a separate evaluation of the overall need for ocean
disposal (as provided in the August 11, 1994 site designation Final
Rule).
Extension Option 2: 18-Month extension to interim site management.
As with Extension Option 1, an 18-month extension should be a
sufficient time to allow completion of the LTMS final EIS/EIR. However,
an 18-month extension might not be sufficient to provide for the
subsequent rulemaking process to be completed and for a permanent
disposal volume limit to become effective. In addition, an 18-month
extension would make it more difficult for planning and contracting of
the already-authorized Port of Richmond Deepening Project, potentially
making it more likely that either the entire project would be dredged
within the shorter 18-month period, or that some of the project's
dredged material would have to be disposed at existing sites within the
San Francisco Bay and estuary (managed under the Clean Water Act).
Planning for other projects that would potentially be appropriate for
ocean disposal would also be made more difficult.
Comments supporting this option would be particularly helpfull if
they address why an 18-month period would be sufficient to allow for
the completion of both the LTMS final EIS/EIR and subsequent ocean
disposal rulemaking, without significantly affecting permitted and
potential future projects or increasing disposal within the San
Francisco Bay and estuary.
Extension Option 3: One-year extension to interim site management.
Extending the interim site management period for only one year probably
would not allow sufficient time for the finalization of the LTMS EIS/R,
given the substantial concerns raised in public comments on the draft
EIS/R. Following publication of the LTMS final EIS/R and Record of
Decision, approximately four months would be needed for rulemaking to
establish a permanent disposal volume limit for the remainder of the
SF-DODS' 50-year designation. In order for the entire process to be
completed within one year, a maximum of eight months would therefore be
available for preparation, publication, and public review of the LTMS
final EIS/R. It is unlikely that the necessary revisions can be made
within a few months, particularly if they are based on a process of
ongoing, open discussions with interested parties, as several
commenters on the LTMS draft EIS/R have requested. As noted above, the
primary reason for extending the interim site management period is to
allow the LTMS final EIS/R process to be completed. At this time EPA
does not believe that a one-year extension will reasonably allow this
to occur.
A one-year extension might only be adequate if EPA were to prepare
a separate evaluation of the overall need for ocean disposal (as
provided in the August 11, 1994 site designation Final Rule); rather
than moving forward with the LTMS EIS/R process at this time. This
would delay completion of the LTMS EIS/R by a commensurate period.
Comments supporting this option would be particularly helpful if they
address why a one-year extension would be adequate to complete the LTMS
EIS/R and rulemaking processes, or why a permanent disposal volume
limit should be established prior to completion of the LTMS EIS/R
process (based on a separate EPA evaluation of the need for ocean
disposal).
Extension Option 4: Six-month extension to interim site management.
Similar to Option 3 above, a six-month extension period would not
provide sufficient time for the completion of the LTMS final EIS/EIR. A
six-month extension might only be adequate if EPA were to prepare a
separate evaluation of the overall need for ocean disposal (as provided
in the August 11, 1994 site designation Final Rule), rather than moving
forward with the LTMS EIS/R process at this time. This would delay
completion of the LTMS EIS/R by a commensurate period. Comments
supporting this option would be particularly helpfull if they address
why a six-month extension would be adequate to complete the LTMS EIS/R
and rulemaking processes, or why a permanent disposal volume limit
should be established prior to completion of the LTMS EIS/R process
(based on a separate EPA evaluation of the need for ocean disposal).
Extension Option 5: Unspecified period of interim site management
(period to end following completion of the LTMS final EIS/R, or
concurrent with publication of a comprehensive management plan for the
San Francisco Bay region). An extension period could be tied
specifically to completion of the LTMS final EIS/R process, without
attempting to speculate about the timeframe needed. This option would
provide the greatest assurance that any LTMS EIS/R process would in
fact be completed before conducting rulemaking to establish a permanent
disposal site volume for the SF-DODS. However, it would not provide the
public with reasonable assurance that the LTMS final EIS/R process will
in fact move forward as expeditiously as possible. In particular,
interested parties might be concerned that resources adequate to
continue and complete the LTMS final EIS/R process may not be committed
by the agencies in a timely manner, if a specific timeframe for action
is not somehow integral to the process. Comments supporting this option
would be particularly helpful if they address why an indefinite
extension period would be superior to the options described above, and
whether and how the alternate provision (in the August 11, 1994 site
designation Final Rule) to base a permanent disposal volume limit on a
separate EPA evaluation of the need for ocean disposal should be
incorporated under an indefinite extension.
E. Ocean Dumping Site Designation Criteria
Five general criteria are used in the selection and approval of
ocean disposal sites for continued use (40 CFR Section 228.5). First,
sites must be selected to minimize interference with other activities,
particularly avoiding fishery areas or major navigation areas. Second,
sites must be situated such that temporary (during initial mixing)
water quality perturbations caused by disposal operations would be
reduced to normal ambient levels before reaching any beach, shoreline,
sanctuary, or geographically limited fishery area. Third, if site
designation studies show that any interim disposal site does not meet
the site selection criteria, use of such site shall be terminated as
soon as an alternate site can be designated. Fourth, disposal site size
must be limited in order to localize for identification and control any
immediate adverse impacts, and to facilitate effective monitoring for
long-range effects. Fifth, EPA must, wherever feasible, designate ocean
dumping sites beyond the edge of the continental shelf
[[Page 54118]]
and where historical disposal has occurred. As described in the site
designation EIS, SF-DODS was specifically selected as the alternative
location which best complied with these general criteria.
In addition to the five general criteria, 11 specific site
selection criteria are listed in 40 CFR 228.6(a) of the EPA Ocean
Dumping Regulations for evaluation of all candidate disposal sites. The
five general criteria and the 11 specific factors overlap to a great
degree. The SF-DODS, as discussed in the August, 1993 site designation
final EIS and subsequent rulemaking, was also found to best comply with
each of the 11 specific criteria.
Site monitoring activities conducted pursuant to the requirements
of the SF-DODS Site Management and Monitoring Plan have established
that it is feasible to monitor at the site using standardized methods,
and that to date the site is performing as expected. For example,
seafloor mapping of dredged material deposits (footprint) from disposal
operations indicates that deposition is occurring as predicted in the
EIS. The bulk of the sediments discharged from barges have deposited
within the site boundaries and have not been transported offsite
thereafter. Deposit thicknesses exceeding 17 centimeters have been
identified only at the center of the site, and no deposit thicknesses
exceeding the five centimeter threshold established in the August 11,
1994 site designation Final Rule have been detected at or outside of
the site boundaries. No apparent changes in the basic successional
stage of the native benthic communities attributable to dredged
material deposition have been observed outside the disposal site
boundary in site monitoring studies. Therefore, any significant
disturbances associated with dredged material disposal are limited to
within the disposal site boundaries, as predicted. In addition, water
column studies confirmed that plumes resulting from disposal operations
dissipate rapidly and suspended sediment concentrations of the plumes
decrease to ambient levels within the disposal site boundaries. Vessel
traffic associated with disposal operations has not interfered with
overall vessel traffic in the San Francisco Bay region, and
observations of seabirds and marine mammals in the vicinity of disposal
operations to date indicate that no apparent significant adverse
impacts have occurred to these resources as a result of disposal
operations. Finally, use of SF-DODS has reduced the total volume of
disposal at existing in-Bay sites (managed under Section 404 of the
Clean Water Act [40 CFR Section 230]). It has therefore already reduced
potential cumulative effects to sensitive aquatic resources of the San
Francisco Bay-Delta estuary.
Taken together, the evaluations presented in the site designation
final EIS and rulemaking, and the site monitoring results to date,
confirm that the SF-DODS is performing as predicted and that, in
operation, it continues to meet the general and specific site
designation criteria of 40 CFR 228.5 and 228.6.
EPA Region 9 has determined that the SF-DODS may appropriately be
designated for use over a period of 50 years, with an interim capacity
of up to six million cubic yards of dredged material per calendar year.
Site capacity shall be re-evaluated based on the results of
comprehensive regional dredged material management planning (including
consideration of in-Bay, ocean, and upland or wetland disposal or
reuse) underway at the time of this rulemaking (or, as provided in the
August 11, 1994 site designation Final Rule, independently by EPA if a
comprehensive management approach is not yet available).
Designation of the SF-DODS for up to six million cubic yards of
suitable dredged material per year complies with the general and
specific criteria used for site evaluation, as evaluated in the August
11, 1994 site designation Final Rule. The continued use of the site
under an interim disposal volume limit equal to or less than this
annual amount also complies with these criteria, as described in
Section E, above. Management of this site will continue to be the
responsibility of the Regional Administrator of EPA Region 9 in
cooperation with the Corps South Pacific Division Engineer and the San
Francisco District Engineer, based on requirements defined in the Final
Rule. The requirement for compliance with the Ocean Dumping Criteria of
the MPRSA may not be superseded by the provisions of any future
comprehensive regional management plan for dredged material.
It is emphasized that ocean dumping site designation does not
constitute or imply EPA Region 9's or the Corps San Francisco
District's approval of actual ocean disposal of dredged materials.
Before ocean dumping of dredged material at the site may begin, EPA
Region 9 and the Corps San Francisco District must evaluate permit
applications according to the Ocean Dumping Criteria (40 CFR Part 227)
adopted pursuant to the MPRSA. EPA Region 9 or the Corps San Francisco
District would not allow ocean dumping if either agency determines that
the Ocean Dumping Criteria of MPRSA have not been met.
F. Compliance With Other Laws and Executive Orders
Consistency With the Coastal Zone Management Act
EPA prepared a Coastal Consistency Determination (CCD) document
based on the evaluations presented in the August, 1993 site designation
EIS. The CCD evaluated whether the proposed action--designation of
``Alternative Site 5'' (now SF-DODS) as described in the site
designation EIS as an ocean disposal site for up to 50 years, and with
an annual capacity of six million cubic yards of dredged material
meeting ocean disposal criteria--would be consistent with the
provisions of the Coastal Zone Management Act. The CCD was formally
presented to the California Coastal Commission (Commission) at their
public hearing on April 12, 1994. The Commission staff report
recommended that the Commission concur with EPA's CCD, and the
Commission voted unanimously to concur on the CCD without revision.
Since the approved CCD was based on 50 years of site use at up to
six million cubic yards of dredged material per year, and none of the
options being considered exceed these parameters, the effects of
today's proposal are well within the scope of the prior review and do
not require further Commission review.
Endangered Species Act Consultation
During the development of the August, 1993 site designation EIS,
EPA consulted with the National Marine Fisheries Service (NMFS) and the
U.S. Fish and Wildlife Service (FWS) pursuant to provisions of the
Endangered Species Act, regarding the potential for designation and use
of any of the alternative ocean disposal sites under study to
jeopardize the continued existence of any federally listed threatened
or endangered species. This consultation process is fully documented in
the August, 1993 site designation EIS. NMFS and FWS concluded that none
of the three alternative disposal sites, including Alternative Site 5,
if designated and used for disposal of dredged material meeting ocean
disposal criteria as described in the EIS, would likely jeopardize the
continued existence of any federally listed threatened or endangered
species.
This consultation was based on site use at up to six million cubic
yards of dredged material per year, for 50 years. Since none of the
options being
[[Page 54119]]
considered would exceed these parameters, and since conditions have not
changed for any of the listed or candidate threatened or endangered
species potentially affected by disposal site use, the effects of
today's proposal are well within the scope of the prior consultation
and do not require further Endangered Species Act consultation.
Executive Order 12866
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 lead to 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.
This proposed rulemaking should have minimal impact on permittees.
The proposed rule merely addresses the interim capacity and period of
time during which the existing SF-DODS may be used under existing
interim management provisions. It thus has been determined that this
proposed rule is not a ``significant regulatory action'' under the
terms of Executive Order 12866, and is therefore not subject to OMB
review.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA) provides that, whenever an
agency promulgates a final rule under 5 U.S.C. 553, an agency must
prepare a regulatory flexibility analysis (RFA) unless the head of the
agency certifies that the proposed rule will not have a significant
economic impact on a substantial number of small entities (5 U.S.C.
Secs. 604 & 605). EPA has determined that this proposed rule will not
have a significant economic impact on small entities since the amended
site designation will only have the effect of providing a continuing
disposal option for dredged material. The proposal merely addresses the
interim capacity and period of interim management of the SF-DODS.
Consequently, EPA's action will not impose any additional economic
burden on small entities such as small private dredging operations that
seek authorization for the dumping of dredged materials. For this
reason, the Regional Administrator certifies, pursuant to section
605(b) of the Regulatory Flexibility Act, that the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by the Office of Management
and Budget. Since this proposed rule would not establish or modify any
information or record-keeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
The Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.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 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, enabling
officials of 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.
This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or sections 202 and 205 of the UMRA. As is explained
elsewhere in this preamble, the proposed rule merely relates to the
period of time and interim capacity under which the existing SF-DODS
may be managed by the Federal government under existing interim
provisions. Accordingly, it imposes no new enforceable duty on any
State, local or tribal governments or the private sector. Even if this
proposed rule did contain a Federal mandate, it would not result in
annual expenditures of $100 million or more for State, local, and
tribal governments in the aggregate, or the private sector. Thus this
proposed rule is not subject to the requirements of sections 202 and
205 of the UMRA.
For the foregoing reasons, EPA also has determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus the requirements of Section 203
of UMRA do not apply to this rule.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: October 4, 1996.
John Wise,
Acting Regional Administrator, EPA Region 9.
In consideration of the foregoing, Subchapter H of Chapter 1 of
Title 40 is proposed to be amended as set forth below.
PART 228--[AMENDED]
1. The authority citation for Part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
Sec. 228.15 [Amended]
Under Extension Options
2. Option 1 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)
are
[[Page 54120]]
amended by removing the words ``December 31, 1996'' each time they
occur, and adding in their place, ``December 31, 1998''.
3. Option 2 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)
are amended by removing the words ``December 31, 1996'' each time they
occur, and adding in their place, ``June 30, 1998''.
4. Option 3 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)
are amended by removing the words ``December 31, 1996'' each time they
occur, and adding in their place, ``December 31, 1997''.
5. Option 4 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)
are amended by removing the words ``December 31, 1996'' each time they
occur, and adding in their place, ``June 30, 1997''.
6. Option 5 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)
are amended by removing the words ``December 31, 1996'' each time they
occur, and adding in their place, ``four months after such time as the
LTMS final EIS/EIR has been completed and a subsequent Record of
Decision signed by EPA''.
Under Volume Options
7. Option 1 for paragraph (l): paragraph (l)(3)(vii) is amended by
removing the words ``six million cubic yards'' and adding in their
place, ``4.8 million cubic yards''.
8. Option 2 for paragraph (l): paragraph (l)(3)(vii) is amended by
removing the words ``six million cubic yards'' and adding in their
place, ``two million cubic yards''.
9. Option 3 for paragraph (l): paragraph (l)(3)(vii) is amended by
removing the words ``six million cubic yards'' and adding in their
place, ``five million cubic yards''.
[FR Doc. 96-26630 Filed 10-16-96; 8:45 am]
BILLING CODE 6560-50-P
