[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Rules and Regulations]
[Pages 68964-68970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32976]
[[Page 68963]]
_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 228
Ocean Dumping; Amendment of Site Designation; Final Rule
Federal Register / Vol. 61, No. 251 / Monday, December 30, 1996 /
Rules and Regulations
[[Page 68964]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
Ocean Dumping; Amendment of Site Designation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) amends 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 establishing a new temporary disposal volume
limit of 4.8 million cubic yards per year, and by extending the time
period during which the disposal site would be managed under the
temporary disposal volume limit by two years (through December 31,
1998). This amendment is necessary in order to allow the SF-DODS to
remain an option 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 intended to provide the region with continued access to an
environmentally appropriate dredged material disposal alternative. It
is emphasized that this action 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 a permit allowing such ocean
disposal may be issued, alternatives to ocean disposal must be
considered and a need for the disposal established under the Marine,
Protection, Research, and Sanctuaries Act (MPRSA). EPA Region 9 or the
Corps San Francisco District will deny permits when either agency
determines that feasible environmentally preferable alternatives are
available, including beneficial use.
Under today's final rule, the SF-DODS will remain designated as an
available alternative for the disposal of suitable dredged material
removed from the San Francisco Bay region and other nearby harbors or
dredging sites for two years (through December 31, 1998). However, EPA
is not setting a permanent annual disposal volume limit at this time,
as originally envisioned in the August 11, 1994 site designation Final
Rule. Instead, EPA is extending the existing interim management of the
site at a new and reduced temporary disposal volume limit of 4.8
million cubic yards per year. A decision on a permanent disposal volume
limit will 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) will remain in full effect.
EFFECTIVE DATE: This final regulation becomes effective on December 30,
1996.
ADDRESSES: Send questions or comments to: Mr. Allan Ota, Ocean Disposal
Coordinator, U.S. Environmental Protection Agency, (EPA) (WTR-2), 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 (WTR-2), 75
Hawthorne Street, San Francisco, California 94105, telephone (415) 744-
1980.
SUPPLEMENTARY INFORMATION: In addition to the proposed rule (61 FR
54112), 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 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
228.12(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:
1. EPA Region 9, Library, 75 Hawthorne Street, 13th Floor, San
Francisco, California.
2. ABAG/MTC Library, 101 8th Street, Oakland, California.
3. Alameda County Library, 3121 Diablo Avenue, Hayward,California.
4. Bancroft Library, University of California, Berkeley,
California.
5. Berkeley Public Library, 2090 Kittredge Street,
Berkeley,California.
6. Daly City Public Library, 40 Wembley Drive, Daly
City,California.
7. Environmental Information Center, San Jose State University,125
South 7th Street, San Jose, California.
8. Half Moon Bay Library, 620 Correas Street, Half Moon
Bay,California.
9. Marin County Library, Civic Center, 3501 Civic Center Drive,San
Rafael, California.
10. North Bay Cooperative Library, 725 Third Street, Santa
Rosa,California.
11. Oakland Public Library, 125 14th Street, Oakland, California.
12. Richmond Public Library, 325 Civic Center Plaza,
Richmond,California.
13. San Francisco Public Library, Civic Center, Larkin &
McAllister, San Francisco, California.
14. San Francisco State University Library, 1630 Holloway
Avenue,San Francisco, California.
15. San Mateo County Library, 25 Tower Road, San Mateo,California.
16. Santa Clara County Free Library, 1095 N. Seventh Street, San
Jose, California.
17. Santa Cruz Public Library, 224 Church Street, Santa
Cruz,California.
18. Sausalito Public Library, 420 Litho Street,
Sausalito,California.
19. Stanford University Library, Stanford, California.
A. Regulated Entities
Entities potentially regulated by this action are persons or
entities seeking permits to dump 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:
------------------------------------------------------------------------
Examples of potentially
Category regulated entities
------------------------------------------------------------------------
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.
[[Page 68965]]
State/local/ tribal governments......... Local governments owning ports
or berths seeking dredged
material ocean dumping
permits for SF-DODS use.
Federal................................. US Army Corps of Engineers for
its projects proposing to use
the SF-DODS.
Government.............................. Federal agencies seeking
dredged material ocean
dumping permits for SF-DODS
use.
------------------------------------------------------------------------
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 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. By publication of a Final
Rule in the Federal Register on August 11, 1994 (59 FR 41243), EPA
Region 9 designated SF-DODS as an ocean dredged material disposal site
under the MPRSA, and readers are referred to that rulemaking for
further information on the site. In that 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.
Since the August 11, 1994 site designation Final Rule, significant
effort 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 are 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. 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 thus
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.
Because of this situation, and in order to provide for a maximum of
public comment opportunities about the overall policy approach that
should be selected for long-term dredged material management(including
the role of ocean disposal), EPA published a Proposed Rule (61 FR
54112) on October 17, 1996 to extend the period during which the SF-
DODS would be managed under a temporary disposal volume limit. In that
proposed rule, options were presented to solicit public comment both on
the appropriate length for a new temporary extension, and for an
appropriate temporary disposal volume limit.
A range of approaches to determining an appropriate temporary
disposal volume limit for SF-DODS was presented by EPA in the proposed
rule. These included: (1) Revising the disposal volume limit based on
an updated estimate of overall dredging and potential ocean disposal
needs for the San Francisco area; (2) revising the disposal volume
limit based on one of the alternatives presented in the LTMS draft EIS/
R; (3) revising the disposal volume 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 disposal volume
limit of six million cubic yards per year. As discussed in the preamble
to the proposal, based on the site designation EIS, original August
1994 site designation rulemaking, and subsequent site monitoring
results, 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 proposed rule's options for a
continued temporary disposal volume limit reflected either a decrease,
or no change, in potential disposal activity at the SF-DODS.
Five options also were presented in the proposed rule regarding
extension of the date for management of the site under the temporary
capacity limit. These options included extension periods of six months,
one year, 18 months, two years, and an indefinite period tied to
completion of the LTMS final EIS/R. EPA specifically solicited public
comments on this range of options for an extended temporary site
management period, as well as comments addressing other interim site
management periods or alternatives that involve no extension at all.
C. Description of Final Rule
After considering the comments received on the proposed rule and
the current status of the LTMS EIS/R, today's final rule reduces the
temporary
[[Page 68966]]
volume capacity from 6 million cubic yards per year to 4.8 million
cubic yards per year and extends site availability under that capacity
for two years (through December 31, 1998). This is done in the final
rule by amending 40 CFR 228.15(l)3) to reflect the new temporary volume
limit and date.
Extending site use at this time under a temporary disposal volume
limit will 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. 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 today's amendments.
Responses to the comments received on the proposal and its options are
presented in Section D below.
D. Response to Comments on the Proposed Rule
A total of eleven letters and one telephone call commenting on the
proposed rule were received. These included letters from two federal
and two state agencies, two Bay area ports, one port association, two
dredging/port industry associations, three environmental groups
(signing one letter), and a natural resources law firm representing
area fishermen's organizations. In addition, a ``no comment'' phone
call was received from one federal agency. Finally, one letter
incorporated by reference the commentor's earlier comments on the
original (1994) site designation action, and on the LTMS draft Policy
EIS/Programmatic EIR.
Citing information similar to that provided in the proposed rule,
all nine of the agency, port, and industry comment letters supported
Volume Option 4: Retain existing six million cubic yard per year
interim disposal volume limit for the SF-DODS. All but one of these
commenters also supported either Extension Option 1: Two-year extension
to interim site management, or the potentially longer time period under
Extension Option 5: Unspecified period of interim site management (one
agency comment letter did not specify a preferred time-frame). In
contrast, the other commenters supported substantially lower disposal
volume limits (a variation of Volume Option 3: Interim disposal volume
limit based on specific projects currently approved for ocean disposal,
that would allow no more than four million cubic yards of disposal per
year), and a shorter extension period (Extension Option 4: Six-month
extension to interim site management). EPA's response to these comments
is presented in the following paragraphs.
Establish a Permanent Annual Disposal Volume Limit Now
Three of the comment letters recommended that EPA issue a final
(permanent) annual ocean disposal volume limit now, rather than extend
interim site management any longer. These commenters noted their
agreement with the statement in the proposed rule that sufficient
information now exists for EPA to establish a permanent limitation,
based on publication of the LTMS draft Policy EIS/Programmatic EIR,
public comments received pursuant to that draft EIS/EIR, and site
monitoring conducted to date. One commenter supported a permanent
disposal volume limit of one- to two-million cubic yards per year based
on the LTMS draft EIS/EIR alternatives; other commenters did not
specify a preference for the size of a permanent disposal volume limit.
Response. EPA agrees that sufficient technical information exists
on which to appropriately base a final (permanent) annual disposal
volume limit for the SF-DODS. However, as discussed in the preamble to
the proposed rule, EPA prefers to extend the existing, interim
management of the disposal site while the consideration of permanent
region-wide dredged material disposal alternatives continues via the
LTMS process. It is unfortunate that the LTMS Policy EIS/Programmatic
EIR was not finalized as originally envisioned before the end of the
initial interim site management period. However, the purposes behind
providing an interim site management period in the first place--i.e.,
to better consider long-term management options and to maximize public
input opportunities--remain relevant today. In the event that the LTMS
EIS/EIR process is still not completed by the end of the new extended
interim site management period, EPA expects to resolve the issue of a
final (permanent) disposal volume limit based on an independent
evaluation of the information available at that time.
Interim Disposal Volume Limit of Six Million Cubic Yards Per Year is
Excessive
Commenters criticized a disposal volume limit of six million cubic
yards per year and argued that a maximum of four million cubic yards
per year should be set. They raised several specific arguments,
including: (1) The original designated volume limit of six million
cubic yards per year was excessive and flawed; (2) the LTMS draft
Policy EIS/Programmatic EIR uses a revised (lower) estimate of 4.8
million cubic yards of sediment per year that on average may be
suitable for ocean disposal, but even this estimate was conservative;
(3) EPA has provided no evidence that there is any need for ocean
disposal in excess of four million cubic yards per year (there is no
demonstrated need to provide allowance for projects in addition to
those anticipated at this time; (4) it is inappropriate to define ocean
disposal needs based on the lack of currently available alternatives;
and (5) reducing the disposal limit at this time would not prejudice
the ongoing LTMS process, whereas not reducing it in light of the
LTMS's own new dredging estimates would prejudice the process. Each of
these comments is addressed in the following paragraphs.
(1) The original (six million cubic yard per year) disposal limit
was excessive and flawed at the time of the original site designation
in 1994. In addition, the modeling at that time, which indicated that
six million cubic yards per year could be disposed without adverse
environmental impact, is irrelevant, since the legal standard requires
EPA to minimize ocean disposal.
Response. EPA's original site designation EIS and rulemaking were
based on the most up-to-date information that was appropriate to use at
the time. The primary document supporting the original site designation
for the SF-DODS was the Environmental Impact Statement (EIS) for
Designation of a Deep Water Ocean Dredged Material Disposal Site off
San Francisco, California. The draft EIS was published by EPA in
December, 1992, and the final EIS was published in August, 1993. A
proposed rule for site designation was subsequently published in the
Federal Register on March 18, 1994, and the site designation final rule
was published on August 11, 1994. The site designation became effective
on September 12, 1994.
During the two years between publication of the draft EIS and the
final designation of the ocean disposal site, new estimates of long-
term dredging were being developed under the LTMS process. They were
not, however, finalized for use in the final site desigation process. A
series of base closure decisions during this general timeframe
necessitated re-evaluation of long-term dredging needs. A final report
was prepared, based on dredging project information as current as 1993,
but was not published until 1995. This final report, Analysis of San
Francisco Regional Dredging Quantity Estimate,
[[Page 68967]]
Dredging Project Profiles, and Placement Profiles, containing the new
dredging estimates was published on September 28, 1995 (and
incorporated as Appendix E in the LTMS draft Policy EIS/Programmatic
EIR, dated April, 1996). Hence new, finalized estimates of long-term
dredging needs were not completed, nor was there consensus on their
use, at the time of the original site designation. EPA therefore
evaluated (in part via computer modeling) the potential effects of six
million cubic yards of disposal in one year as a reasonable worst-case
scenario. Since this evaluation showed that significant adverse effects
would not be expected at that level of disposal, lower disposal levels
similarly would not be expected to cause significant effects. EPA
believes that the modeling studies conducted for the original site
designation therefore remain relevant to today's action to extend
interim site use at 4.8 million cubic yards per year.
EPA has always recognized the need for caution in using any
estimates of long-term, average dredging needs as the basis for site
management decisions. Notwithstanding any overall disposal limit that
may be set, project-by-project review must still occur and the need for
ocean disposal must be determined in each case. EPA and the USACE will
not approve any disposal that would be expected to cause significant
adverse environmental effects individually or cumulatively. In this
regard, too, the modeling studies showing that there should be no
significant adverse environmental impacts from six million cubic yards
per year of disposal at SF-DODS remain relevant. Today's new lower
estimates could conceivably be superseded at some future date by higher
estimates, if circumstances change substantially. If this were to
occur, it would be appropriate to evaluate whether a higher level of
ocean disposal could occur without causing significant adverse
environmental effects. (The existing modeling results would not be
adequate to establish whether disposal levels higher than six million
cubic yards per year might be environmentally acceptable.) However,
even if a higher disposal ``need'' were to exist in the future, higher
levels of disposal would not be allowed if they would result in the
Ocean Dumping Criteria being violated.
(2) The new long-term estimate of dredged material potentially
suitable for ocean disposal which was used in the LTMS draft Policy
EIS/Programatic EIR is 4.8 million cubic yards per year. Even that
figure is conservative, because there is no evidence that more than
four million cubic yards needs ocean disposal. Therefore an interim
disposal limitation of no more than four million cubic yards per year
should be established for the SF-DODS.
Response. EPA believes that the best and most appropriate current
estimate of the long-term, average volume of dredged material that may
be suitable for ocean disposal is 4.8 million cubic yards per year, as
documented in the LTMS draft Policy EIS/Programmatic EIR. This volume
represents a ``high-end'' estimate, taking into account projects and
trends reasonably foreseeable at this time, and thus reflects a
reasonable worst-case scenario. However, it is also an estimated
average, and may not be sufficient in years of especially high dredging
if alternative disposal sites are not available. For example, there are
currently two large dredging projects authorized to use the SF-DODS
and, if these are conducted simultaneously, four million cubic yards
could in fact be disposed at the site in one year (1997). There is thus
immediate ``evidence'' that at least four million cubic yards may
occasionally need ocean disposal. However, a disposal limit set at four
million cubic yards per year might not allow any other projects to use
the SF-DODS in 1997, which could result in more disposal at existing
sites within San Francisco Bay than would otherwise be necessary. In
contrast, a disposal limit of 4.8 million cubic yards per year as
represented by Volume Option 1 in the Proposed Rule (or the greater
limits under Volume Options 3 and 4) would continue to allow
consideration of ocean disposal as a potentially practicable
alternative for new proposed projects.
(3) Four million cubic yards per year would allow currently
authorized projects to proceed; there is no evidence of any need to
provide for other than currently authorized projects at this time.
Response. As discussed in the response to the immediately preceding
comment, a four million cubic yard per year disposal volume limit at
the SF-DODS could in some circumstances (possibly as early as 1997)
limit the range of practicable alternatives for new proposed projects.
This in turn could result in more disposal at existing sites within San
Francisco Bay than would otherwise be necessary. Of course,
opportunities for beneficial reuse and upland disposal are also
evaluated on a project-by-project basis. However, as documented in the
LTMS draft Policy EIS/Programmatic EIR, beneficial reuse and upland
disposal opportunities are generally very limited at the present time.
The LTMS draft EIS/EIR therefore discussed the likelihood that the
majority of dredged material generated in the near term would have to
be managed at aquatic disposal sites (i.e., at the SF-DODS in
combination with existing San Francisco Bay disposal sites), until
additional beneficial reuse or upland disposal sites become available.
It is EPA's determination that, in general and to the extent
practicable, disposal of suitable dredged material at the SF-DODS is
environmentally preferable to disposal at existing sites within San
Francisco Bay. EPA therefore believes that restricting disposal at the
SF-DODS to only currently approved projects during the extended interim
use period may result in cumulative effects that could otherwise be
avoided.
(4) It is inappropriate to define ocean disposal needs based on the
lack of currently available alternatives.
Response. As discussed in the LTMS draft Policy EIS/Programmatic
EIR, it is expected that in the near term management of dredged
material from the San Francisco Bay area will require a greater
emphasis on aquatic disposal sites than on beneficial reuse or upland
disposal sites, due to lack of available opportunities for such reuse
or upland diposal at this time. It is therefore appropriate to
establish disposal volume limits that are sufficient to manage the
reasonably foreseeable aquatic disposal needs, provided that no
significant adverse environmental effects would occur at that level of
disposal. (Modeling studies and subsequent site monitoring have in fact
indicated that no significant adverse environmental effects are
expected at the SF-DODS at disposal volumes even at the level of six
million cubic yards per year.)
Over time, as the LTMS participants seek additional beneficial
reuse or upland disposal sites, less overall reliance on aquatic
disposal is anticipated. In the meantime, the primary alternative to
ocean disposal is disposal at the existing designated sites within San
Francisco Bay. As noted in the response to the immediately preceding
comment, it is EPA's determination that, in general and to the extent
practicable, disposal of suitable dredged material at the SF-DODS is
environmentally preferable to disposal at existing sites within San
Francisco Bay. Availability of in-Bay sites should therefore be limited
to projects where a practicable alternatives analysis allows use of
such sites. Thus, EPA's decision about a disposal volume limit for the
SF-DODS is based not only on the current lack of beneficial reuse or
upland disposal alternatives, but also on the current limited
availability of
[[Page 68968]]
alternative aquatic disposal sites within San Francisco Bay, and the
relative risks, impacts, and management opportunities afforded at those
sites compared to the SF-DODS. In addition, project-by-project review
must still occur and the need for ocean disposal must be determined in
each case. Notwithstanding any overall disposal limit that may be set,
EPA and the USACE will not approve any disposal at SF-DODS that would
be expected to cause significant adverse environmental effects
individually or cumulatively.
(5) Reducing the disposal limit at this time would not prejudice
the ongoing LTMS process, whereas not reducing it in light of the
LTMS's own new dredging estimates could be viewed as negative.
Response. EPA agrees that the revised LTMS estimate of long-term,
average dredging quantities for the San Francisco Bay area reflects
substantial new information that was not fully available at the time of
the original SF-DODS designation. EPA has therefore applied this new
information under the same approach that was used in the original
designation action, and has determined that an annual disposal volume
limit of 4.8 million cubic yards is appropriate. Use of this
information, which was developed as part of the LTMS process, should
not prejudice final decisions made as a result of the LTMS process.
Final decisions will continue to be based on the most current
information developed in that process. Prejudice is more likely to
occur if EPA does not apply the most up-to-date information developed
in that process.
Interim Site Management Period Should Not Exceed Six Months
Comments supporting the Proposed Rule's Extension Option 4: Six-
month extension to interim site management, were based on two main
considerations. First, that a six-month extension would allow for a
total of over one year since the LTMS draft Policy EIS/Programmatic EIR
was published (and approximately eight years since the LTMS process was
initiated), which should be sufficient time to complete a final EIS/
EIR. Second, that there is no need to tie the SF-DODS extension period
decision to the timing of the Record of Decision following the LTMS
final EIS/EIR. Each of these issues is addressed in the following
responses.
(1) A six-month extension would allow for a total of over one year
since the LTMS draft Policy EIS/Programmatic EIR was published (and
approximately eight years since the LTMS process was initiated). This
should be sufficient time to produce a final EIS/EIR.
Response. Over 60 letters, comprising over 1,000 individual
comments, were received on the LTMS draft Policy EIS/Programmatic EIR.
Many of these comments recommended that substantive revisions be made
before the EIS/EIR is be finalized. In addition, unlike more typical
``project'' EIS/EIRs, responding to the comments received on the
policy/program issues will require the collaboration and consensus of
all the state and federal LTMS agencies. This process is more time-
consuming than if the proposed action, and all the specific decisions
needed to define and implement it, were to be within the authority of a
single agency. Similarly, the experience of the LTMS agencies to date
has been that evaluation of the policy/program issues in this process
cannot be carried out through contractual support. Since this is a
policy EIS/EIR, the majority of the analysis and written revisions must
be done by agency staff. All available staff resources from each of the
LTMS agencies are being assigned to finalizing the EIS/EIR (along with
the related draft Management Plan). If the Policy EIS/Programmatic EIR
is finalized earlier than expected, a permanent disposal volume limit
for the SF-DODS can be established earlier than the end of the two-year
extension period.
(2) There is no need to tie the SF-DODS extension period to the
timing of the Record of Decision following the LTMS final EIS/EIR.
Response. EPA agrees that the overall process could be accelerated,
without significantly affecting public input, by publishing the
proposed rule for a permanent disposal volume limit at the same time as
the LTMS final EIS/EIR is published. The comment periods for the two
actions could thus occur simultaneously, and the permanent disposal
volume limit could become effective at the same time that the Record of
Decision is signed by the federal agencies, rather than weeks to months
later.
The LTMS Agencies Should Apply More Resources to Accelerate Finalizing
the LTMS EIS/EIR
Some commenters recommended that the LTMS agencies accelerate the
overall LTMS EIS/EIR schedule, thus allowing for a shorter interim
management period for the SF-DODS, by applying additional staff and
other resources to the EIS/EIR. In particular, they noted that the LTMS
agencies have moved forward with implementation of a pilot joint-agency
Dredged Material Management Office (DMMO) for permit application
processing, before the EIS/EIR has been finalized and before other
important documents (such as the Site Management and Monitoring
Implementation Manual for the SF-DODS) have been prepared.
Response. With the exception of staff resources assigned to DMMO,
all the available staff resources from each of the LTMS agencies are
being assigned to finalizing the EIS/EIR (along with the related draft
Management Plan). EPA recognizes that this leaves limited the resources
available to produce other documents--such as the SMMP Implementation
Manual--as quickly as would be desirable. Staff assigned to the DMMO
are addressing current permit application information as it comes in.
These applications and related reports would have to be evaluated by
each of the member agencies, whether this is done individually or
jointly under the auspices of the DMMO. The DMMO is expected to reduce
the overall amount of time the agencies spend on directing and
reviewing sediment evaluations for dredging projects, thus freeing
resources that would otherwise not be available for the EIS/EIR effort.
Thus, little or no benefit could be gained by delaying the
establishment of the DMMO, or reducing staff allocated to it.
The LTMS Agencies Should Apply More Resources to Establishing
Beneficial Reuse Alternatives
One commenter also recommended that the LTMS agencies apply more
resources to identifying and implementing beneficial reuse or upland
disposal alternatives. Such alternatives would presumably reduce the
need for the two-year interim timeframe and/or the 4.8 million cubic
yards per year interim disposal volume limit for the SF-DODS. In
particular, the commenter noted that a new potential opportunity for
large-scale reuse of dredged material in the Sacramento-San Joaquin
River Delta has been suggested in another forum (the CalFed process),
and that this new possibility should be pursued vigorously by the
agencies.
Response. EPA agrees that a greater potential for beneficial reuse
than projected by the LTMS draft EIS/EIR may exist, including the
particular opportunity referred to by this commenter. Beneficial reuse
has been identified as one of the issues that will be addressed for the
final LTMS Policy EIS/Programmatic EIR. The LTMS agencies intend to
explore ways to maximize the coordination among the programs that are
looking into such opportunities, in order to maximize the beneficial
reuse of Bay area dredged material to the extent practicable over time.
Other beneficial reuse
[[Page 68969]]
opportunities may be identified during the interim management period
for the SF-DODS, as well. To the extent that such opportunities become
available, EPA and the USACE will require that they are evaluated in
the practicable alternatives analysis for projects seeking aquatic
disposal during the interim management period for the SF-DODS.
Other Comments Incorporated by Reference
One letter incorporated by reference the commentor's earlier
letters about the original (1994) SF-DODS designation action, and about
the LTMS draft Policy EIS/Programmatic EIR.
Response. EPA responded to the comments received regarding the
original SF-DODS designation as a part of the Response to Comments
section of that final rule, published in the Federal Register on August
11, 1994. EPA intends to respond fully to the commenter's letter about
the LTMS draft Policy EIS/Programmatic EIR as a part of the overall
response to comments on that document now being prepared by the LTMS
agencies. Today's extension of the interim site management period for
the SF-DODS is more limited in scope and purpose than the actions under
consideration in the LTMS process. Moreover, the purpose of today's
extension is to allow for the programmatic LTMS EIS/EIR process to be
completed, including responding to comments received. Today's action in
no way prejudices the ability to respond to the commenter's letter on
the LTMS EIS/EIR, and in no way precludes the selection of any
alternative evaluated in that document. Therefore, it is appropriate
that the comments in the referenced letter are not addressed as part of
today's action, to the extent that they coincide with the comments
addressed herein.
E. 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 since these
parameters are not exceeded by this action, this final rule extending
interim disposal site management does not require additional 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 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 these
parameters are not exceeded by this action, and since conditions have
not changed for any of the listed or candidate threatened or endangered
species potentially affected by disposal site use, this final rule
extending interim disposal site management does not require additional
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 final rulemaking should have minimal impact on permittees.
The final rule merely extends the period of time during which the
existing SF-DODS may be used under existing interim management
provisions. It thus has been determined that this final 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 final 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 final 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 final rule merely extends the
current 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 final 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
[[Page 68970]]
ten or more non-Federal respondents be approved by the Office of
Management and Budget. Since this final rule does 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), Public
Law 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 final 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 final rule merely extends the period of
time during 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 final 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 final 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.
Compliance With Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
generally requires that substantive rules be published 30 days prior to
their effective date except:
``(1) A substantive rule which grants or recognizes an exemption
or relieves a restriction; * * * or (3) as otherwise provided by the
agency for good cause found and published with the rule.'' 5 U.S.C.
553(d).
EPA is issuing today's final rule as effective December 30, 1996,
under the provisions of 5 U.S.C. 553(d). As is explained elsewhere in
this preamble, today's final rule is intended to assure that the SF-
DODS remains available for use as a disposal alternative for suitable
dredged material. In the absence of today's rule, after December 31,
1996, Federal projects and permit applicants that need to use the ocean
disposal alternative (including the Port of Oakland project already
using the site) would not be able to use the SF-DODS unless the
additional step of site selection under MPRSA Sec. 103 was undertaken
by the USACE. By extending the current deadline, and avoiding this
result, today's final rule has the effect of removing a restriction and
thus meets the exception specified in 5 U.S.C. 553(d). In addition, the
Agency believes today's rule meets the ``good cause'' exception of 5
U.S.C. 553(d)(3). As previously noted, failure to extend the current
deadline before it expires could adversely affect the Port of Oakland
Harbor project, which is currently authorized to dispose of project
dredged material at the SF-DODS, and which received such authorization
after environmental assessment, demonstration of a need for ocean
disposal, and opportunity for public comment. Issuing today's final
rule as immediately effective would avoid potential disruption of this
ongoing and already authorized project. At the same time, issuance of
the final rule as immediately effective would not result in additional
use of the site by other potential dumpers. Because issuance of an
immediately-effective rule is necessary to avoid disruption of an
already approved, ongoing, and environmentally acceptable use of the
SF-DODS on which the public has already had the opportunity to comment,
and an immediate effective date does not result in usage by any other
dumpers, the Agency has determined that there is good cause within the
meaning of 5 U.S.C. 553(d)(3) to issue this rule as effective December
30, 1996.
List of Subjects in 40 CFR Part 228
Environmental Protection, Water Pollution Control.
Dated: December 20, 1996
Alexis Strauss,
Acting Regional Administrator, EPA Region 9.
In consideration of the foregoing, Subchapter H of Chapter I of
Title 40 is 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]
2. Section 228.15, paragraphs (l)(3)(vii) and (l)(3)(x) are amended
by removing the words ``December 31, 1996'' each time they occur, and
adding in their place, ``December 31, 1998''.
3. Section 228.15, paragraph (l)(3)(vii) is amended by removing the
words ``6 million cubic yards'' and adding in their place, ``4.8
million cubic yards''.
[FR Doc. 96-32976 Filed 12-27-96; 8:45 am]
BILLING CODE 6560-50-P
