[Federal Register Volume 62, Number 92 (Tuesday, May 13, 1997)]
[Proposed Rules]
[Pages 26267-26279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12480]
[[Page 26267]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-5825-1]
Simultaneous De-designation and Termination of the Mud Dump Site
and Designation of the Historic Area Remediation Site
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing today
to de-designate and terminate the New York Bight Dredged Material
Disposal Site (also known as the Mud Dump Site) as of September 1,
1997. The Mud Dump Site was designated in 1984 for the disposal of 100
million cubic yards of dredged material from navigational dredging and
other dredging projects associated with the Port of New York and New
Jersey and nearby harbors. Simultaneous with closure of the Mud Dump
Site, the site and surrounding areas that have been used historically
as disposal sites for dredged materials will be redesignated under 40
CFR part 228 as the Historic Area Remediation Site. The Historic Area
Remediation Site will be managed to reduce impacts of historical
disposal activities at the site to acceptable levels (in accordance
with 40 CFR 228.11(c)). This amendment will, when finalized, identify
for remediation an area in and around the Mud Dump Site which has
exhibited the potential for adverse ecological impacts. As discussed
further below, the Historic Area Remediation Site will be remediated
with uncontaminated dredged material (i.e., dredged material that meets
current Category I standards and will not cause significant undesirable
effects including through bioaccumulation) (hereinafter referred to as
``the Material for Remediation'' or ``Remediation Material'').
DATES: Comments must be received on or before June 30, 1997. The public
hearing dates are as follows:
1. June 16, 1997, at 7:00 PM: Monmouth Beach, New Jersey.
2. June 17, 1997, at 7:00 PM: Long Island, NY.
3. June 18, 1997, at 2:00 PM: New York, New York.
ADDRESSES: Comments on this proposed rule should be addressed to: Mr.
Mario P. Del Vicario, Chief, Place Based Protection Branch, U.S.
Environmental Protection Agency Region 2, 290 Broadway, New York, NY
10007-1866 (E-mail delvicario.mario@epamail.epa.gov). The official
record of this rulemaking is available for inspection at the EPA Region
2 Library, 16th Floor, 290 Broadway, New York, NY 10007-1866. For
access to the docket materials, call Karen Schneider at (212) 637-3189
between 9:00 am and 3:30 pm Monday through Friday, excluding legal
holidays, for an appointment. The record is also available for viewing
at EPA's Region 2 Field Office Library, 2890 Woodbridge Avenue,
Building 209, MS-245, Edison, New Jersey 08837. For access to the
docket materials, call Ms. Dorothy Szefczyk (908) 321-6762 between 9:00
am and 3:30 pm Monday through Friday, excluding legal holidays, for an
appointment. The EPA public information regulation (40 CFR Part 2)
provides that a reasonable fee may be charged for copying.
The public hearing locations are as follows:
1. New Jersey--Monmouth Beach Municipal Auditorium, 22 Beach Road,
Monmouth Beach, New Jersey, 07750.
2. Long Island, NY--Social Services Building Auditorium, County
Seat Drive, Mineola, Long Island, NY 11501.
3. New York, NY--Oval Room, Port Authority of New York/New Jersey,
Floor 43, 1 World Trade Center, New York, New York 10048.
FOR FURTHER INFORMATION CONTACT: Mr. Mario P. Del Vicario, Chief, Place
Based Protection Branch, US EPA Region 2, 290 Broadway, New York, NY
10007-1866; (212) 637-3781 (delvicario.mario@epamail.epa.gov).
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially affected by this action include those who
might have sought permits to dump dredged material into ocean waters at
the Mud Dump Site (MDS) or those who might seek to place Remediation
Material at the proposed Historic Area Remediation Site (HARS), under
the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401 et
seq. (hereinafter referred to as the MPRSA). The rule would primarily
be of relevance to entities in the New York-New Jersey Harbor and
surrounding area seeking permits from the U.S. Army Corps of Engineers
(USACE) for the ocean dumping of dredged material at the Mud Dump Site
or those seeking to place Remediation Material at the HARS, as well as
the USACE itself. Potentially affected categories and entities seeking
to use the Mud Dump Site or the HARS include:
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Examples of potentially affected
Category entities
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Industry......................... Ports in NY/NJ Harbor and surrounding
areas seeking MPRSA permits for
dredged material.
Marinas in the NY/NJ Harbor and
surrounding areas seeking MPRSA
permits for dredged material.
Shipyards in the NY/NJ Harbor and
surrounding areas seeking MPRSA
permits for dredged material.
Berth owners in the NY/NJ Harbor and
surrounding area seeking MPRSA
permits for dredged material.
State/local/tribal governments... Local governments owning ports or
berths in the NY/NJ Harbor and
surrounding area seeking MPRSA
permits for dredged material.
Federal.......................... US Army Corps of Engineers for its
proposed dredging projects in NY/NJ
Harbor and surrounding areas.
Federal agencies seeking MPRSA
permits for dredged material from NY/
NJ Harbor and surrounding areas.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your organization is affected by this action, you should carefully
consider whether your organization is subject to the requirement to
obtain an MPRSA permit in accordance with the Purpose and Scope
provisions of Sec. 220.1 of Title 40 of the Code of Federal
Regulations, and you wish to use the site subject to today's proposal.
If you have any questions regarding applicability of this action to a
particular entity, please consult the person listed in the preceding
FOR FURTHER INFORMATION CONTACT section.
Other entities potentially affected by today's proposal would
include commercial and recreational fishing interests using New York
Bight Apex fishing and shellfish grounds. By providing for remediation
of areas adversely impacted by historic disposal activities (see
discussion below), today's proposal would be expected to have positive
effects on fishery and shellfish resources.
II. Background
Since the 1800s, the New York Bight Apex and surrounding area has
been
[[Page 26268]]
used for disposal of dredged material and a variety of waste products,
including municipal garbage, building materials, sewage sludge, and
industrial waste. The New York Bight Apex is defined as the area of
approximately 2,000 km\2\ extending along the New Jersey coastline from
Sandy Hook south to 40 deg.10' latitude and east along the Long Island
coastline from Rockaway Point to 73 deg.30' longitude. The New York
Bight Apex is a small part of the New York Bight. The New York Bight is
an approximately 39,000 km\2\ area extending seaward from Cape May, New
Jersey to Montauk Point, New York outward to the edge of the
continental shelf. Dredged material placement in the New York Bight
Apex began ``officially'' in 1888 at a point 2.5 miles south of Coney
Island. At that time, the New York Harbor U.S. Congressional Act of
1888 established that the Supervisor of New York Harbor had the
authority to grant permits for ocean disposal. Due to shoaling off
Coney Island, the dredged material disposal location was moved in 1900
to a point one-half mile south and eastward of Sandy Hook Lightship. In
1903, the location was moved again, to 1.5 miles east of Scotland
Lightship. Dredged material placement continued seaward of this area
for the next 70 years.
In 1972, the Congress of the United States enacted the MPRSA to
address and control the dumping of materials into ocean waters. Title I
of MPRSA authorized the EPA and the USACE to regulate dumping in ocean
waters. Since the MPRSA was enacted, and through its subsequent
amendments (including the Ocean Dumping Ban Act of 1988, which
prohibited ocean dumping of sewage sludge and industrial waste),
dumping in the New York Bight has been dramatically reduced through
education and implementation actions by EPA, the USACE, the U.S. Coast
Guard, and other agencies. In the New York Bight, this has meant
permanent closure of the 12-Mile and 106-Mile sewage sludge sites, the
Cellar Dirt site, the Acid Waste site, and the Woodburning site.
Regulations implementing the MPRSA are set forth at 40 CFR Parts
220 through 229. With few exceptions, the MPRSA prohibits the
transportation of material from the United States for the purpose of
ocean dumping except as may be authorized by a permit issued under the
MPRSA. The MPRSA divides permitting responsibility between EPA and the
USACE. Under Section 102 of the MPRSA, EPA has responsibility for
issuing permits for all materials other than dredged material (e.g.,
fish wastes, burial at sea). Under Section 103 of the MPRSA, the
Secretary of the Army has the responsibility for issuing permits for
the ocean dumping of dredged material. This permitting authority has
been delegated to the USACE. Determinations to issue MPRSA permits for
dredged material are subject to EPA review and concurrence. Sediments
proposed for ocean disposal within EPA Region 2 and the USACE New York
District (NYD) have been separated into 3 categories (see Supplemental
EIS), with Category I being allowed for ocean disposal without capping,
Category II allowed for ocean disposal with capping, and Category III
prohibited from ocean disposal.
Section 102(c) of the MPRSA also provides that EPA may designate
recommended times and sites for ocean dumping, and Section 103(b)
further provides that the USACE should use such EPA designated sites to
the maximum extent feasible. EPA's ocean dumping regulations provide
that EPA's designation of an ocean dumping site is accomplished by
promulgation of a site designation in 40 CFR part 228 specifying the
site. On October 1, 1986, the Administrator delegated the authority to
designate/de-designate ocean dumping sites for dredged material to the
Regional Administrator of the Region in which the site is located. EPA
is proposing the de-designation and termination of the Mud Dump Site
and simultaneous HARS designation pursuant to the foregoing authorities
and 40 CFR 228.5, 228.6, 228.10, and 228.11. Today's proposal consists
of a single rulemaking action that would amend Sec. 228.15(d)(6) by
deleting existing language that lists the Mud Dump Site as a designated
site and simultaneously replacing it with language designating the
HARS. It should be noted that MPRSA site designation does not
constitute or imply EPA's approval of actual placement of material at
the site. Before placement of the Material for Remediation at the HARS
may commence, the USACE must evaluate permit applications according to
EPA's Ocean Dumping Regulations.
Interested persons may participate in this proposed rulemaking by
submitting written comments to the address given above on or before the
close of the public comment period specified in the DATES section of
this Preamble. Because of the September 1, 1997, deadline for
completion of this action (see paragraph below), comments must be
timely received in order to enable their consideration.
III. Need for Remediation
As stated in a letter to several New Jersey Congressmen, signed by
EPA Administrator Carol Browner, then-Secretary of Transportation
Federico F. Pena, and Secretary of the Army Togo D. West, Jr. (July 24,
1996, 3-party letter):
``EPA will immediately begin the administrative process for closure
of the Mud Dump Site by September 1, 1997. The proposed closure shall
be finalized no later than that date. Post-closure use of the site
would be limited, consistent with the management standards in 40 CFR
228.11(c). Simultaneous with closure of the Mud Dump Site, the site and
surrounding areas that have been used historically as disposal sites
for contaminated material will be redesignated under 40 CFR part 228 as
the Historic Area Remediation Site. This designation will include a
proposal that the site be managed to reduce impacts at the site to
acceptable levels (in accordance with 40 CFR 228.11(c)). The Historic
Area Remediation Site will be remediated with uncontaminated dredged
material (i.e., dredged material that meets current Category I
standards and will not cause significant undesirable effects including
through bioaccumulation)'' (referred to hereinafter as ``the Material
for Remediation'' or ``Remediation Material''). As also stated in the
July 24, 1996, 3-Party Letter: ``The designation of the Historic Area
Remediation Site will assure long-term use of Category I dredge
material.''
As discussed and documented in the Supplemental environmental
impact statement (EIS) accompanying today's proposed action (see
section IV of preamble, below), field studies of the New York Bight
Apex have found undesirable levels of bioaccumulative contaminants and
toxicity in the surface sediments of much of the MDS and in sediments
immediately surrounding the MDS. Further, it was found that some of
these sediments cause toxicity in amphipod bioassays. Amphipods are
small-bodied crustaceans that live in the surface layers of sediment,
and are important prey items for many coastal marine organisms. These
and other organisms are used by EPA and the USACE to evaluate sediment
samples from proposed dredging sites.
While it is impossible to quantify how much of New York Bight Apex
contamination is the direct result of past dredged material disposal,
other ocean dumping activities (e.g., former sewage sludge disposal at
the 12-Mile Site), or other sources (e.g., via Hudson River plume or
atmospheric deposition), the presence of these degraded sediments in
the Apex is cause for concern. Organisms living in or near these
degraded surface sediments in
[[Page 26269]]
nearshore waters will be continually exposed to contaminants until the
contaminants are buried by natural sedimentation, placement of
Remediation Material, or otherwise isolated or removed. Exposed
sediments can directly and indirectly impact benthic and pelagic
organisms. Impacts to terrestrial organisms (including human beings)
are also possible if the contaminants were to undergo trophic transfer.
EPA employed several types of evaluations to determine the extent
and location of potential environmental impacts in the vicinity of the
MDS and historic dredged material disposal areas. These included the
type of amphipod bioassays normally conducted on sediment samples from
proposed dredging sites, contaminant-bioaccumulation evaluations of
infaunal organisms and sediment from the Study Area (a 30 square
nautical mile area within the New York Bight Apex encompassing benthic
areas that showed evidence of dredged material disposal (presence of
craters and mounds)), and evaluation of the benthic community structure
in the potentially impacted areas. The results of these evaluations and
the main factors that make remediation necessary are summarized below.
Contaminant Toxicity
Potential toxicity of sediments was evaluated using the same 10-day
amphipod (Ampelisca abdita) bioassay test used as part of the
evaluation of the suitability of sediment for ocean disposal by EPA
Region 2 and the USACE New York District (NYD). The data from amphipod
bioassays of sediments from 1994 Study Area samples indicated
widespread toxic conditions in sediment from areas around the MDS. If
these surface sediments from the Study Area were from a proposed Region
2/NYD dredging project site, the sediments would have been categorized
as Category III and found to not meet the limiting permissible
concentration (LPC) in EPA's Ocean Dumping Regulations (40 CFR 227.27),
and thus would not be permitted for disposal at the MDS.
Contaminant Bioaccumulation/Trophic Transfer
Contaminant bioaccumulation was evaluated by analyzing the tissues
of infaunal worms collected from the Study Area sediments. Infaunal
organism bioaccumulation of sediment-associated contaminants can, if
accumulated to high enough levels, result in both acute and chronic
impacts and eventually transform benthic community structure. Such
changes can affect the food source of demersal predators. When demersal
predators feed on infauna with contaminated tissues, the contaminants
can be transferred to and potentially accumulate in the predator. These
contaminants can then potentially be consumed by humans. EPA's
evaluation of contaminant bioaccumulation in the Study Area was similar
to the national testing manual's (Green Book) Tier IV ``steady-state''
evaluations, which are used in determining compliance with the ocean
dumping criteria. The results showed that there were areas in the
vicinity of the MDS where these benthic worms were accumulating
undesirable levels of contaminants from the sediments.
Contaminants in Sediments
Contaminant concentrations in sediments in the vicinity of the MDS
were compared to National Oceanic and Atmospheric Administration (NOAA)
ER-L (Effects Range-Low) and ER-M (Effects Range-Median) values which
have been derived from a broad range of biological and chemical data
collected synoptically from field and laboratory experiments. Although
ER-L/ER-M values are not appropriate for regulatory decision making,
they are useful in sediment evaluations when considered concurrently
with other data. In general, the comparisons of ER-L/ER-M values to
contaminant levels in sediments from parts of the Study Area indicated
that, based on contaminant levels in the sediment, negative biological
effects could be possible at many stations. This conclusion is
corroborated by the results of the toxicity and contaminant
bioaccumulation tests described above.
Contaminant Levels in Area Lobsters
NOAA tissue data from lobsters that were harvested in the New York
Bight Apex in 1994 revealed that PCB and 2,3,7,8-TCDD (dioxin)
concentrations in the hepatic tissue (tomalley) of the lobsters were
above U.S. Food and Drug Administration consumption guidelines. Other
contaminants were also present in the hepatopancreas and other tissues,
but the concentrations of these contaminants were within consumption
guidelines.
It must be kept in mind that the lobsters analyzed in the NOAA
study were harvested from wild stocks in the Apex, whose populations
migrate seasonally through the region, including perhaps the SEIS Study
Area. Contamination of these animals cannot be definitively linked to
specific areas of dredged material disposal, to other past dumping
activities, or to other ongoing pollution sources. Nor does the study
data indicate that human consumption of lobster muscle tissue (meat)
presents health risks. However, the lobster study data do show that
contaminants are being accumulated, and that concern about potential
human-health risks is warranted. This contaminant data set complements
other evidence of benthic contamination in the Bight Apex region.
Solutions to Sediment Degradation in the Study Area
Today's proposal to terminate and de-designate the Mud Dump Site,
and simultaneously redesignate the area of that site and surrounding
degraded areas as the Historic Area Remediation Site is amply supported
by the presence of toxic effects (a Category III sediment
characteristic), dioxin bioaccumulation exceeding Category I levels in
worm tissue (a Category II sediment characteristic), ER-L/ER-M
exceedances in some Study Area sediments, as well as TCDD/PCB
contamination in area lobster stocks. Individual elements of the
aforementioned data do not prove that sediments within the Study Area
are imminent hazards to the New York Bight Apex ecosystem, living
resources, or human health. However, the collective evidence presents
cause for concern, justifies the conclusion of the July 24, 1996, 3-
Party Letter that a need for remediation exists, that the site is
Impact Category I (see, 40 CFR 228.10), and that the site should be
managed to reduce impacts to acceptable levels (see, 40 CFR 228.11(c)).
Further information on the conditions in the Study Area and the surveys
performed may be found in the Supplemental Environmental Impact
Statement described immediately below.
IV. EIS Development
Section 102(c) of the National Environmental Policy Act of 1969,
Section 4321 et seq. (NEPA) requires that Federal agencies prepare an
environmental impact statement (EIS) on proposals for major Federal
actions significantly affecting the quality of the human environment.
The object of NEPA is to build into the Agency decision making process
careful consideration of all environmental aspects of proposed actions.
Although EPA activities have been determined to be ``functionally
equivalent'' with NEPA, EPA has voluntarily undertaken to prepare an
EIS when designating ocean dumping sites. See, 39 FR 16186 (May 7,
1974).
In August 1982, EPA published a final EIS entitled, ``Environmental
Impact Statement for the New York Dredged
[[Page 26270]]
Material Disposal Site Designation.'' The EIS assessed the
environmental impacts of establishing an ocean disposal site for 100
million cubic yards (mcy) of dredged materials generated within the
Port of New York and New Jersey. After completion of the environmental
studies and publication of the EIS, EPA designated the Mud Dump Site as
an Impact Category I disposal site on May 4, 1984 at 49 FR 19012 (see,
40 CFR 228.10(c)). The resulting rule specifying the Mud Dump Site
established a capacity of 100 mcy (see, 40 CFR 228.15(d)(6)).
Approximately 68 mcy of dredged material has been disposed of at the
Mud Dump Site since that designation; the remaining capacity of the Mud
Dump Site is affected by a variety of factors, including disposal
strategies and mound height restrictions for dredged material.
Consistent with the need for remediation and the above-quoted provision
of the July 24, 1996, 3-Party letter, on September 11, 1996, EPA
announced the following actions: (1) Modification of the scope of the
existing supplemental environmental impact statement (EIS) by
eliminating the proposal to expand the Mud Dump Site for Category II
dredged material disposal; and (2) implementation of the July 24, 1996,
3-Party letter by closing the Mud Dump Site by September 1, 1997, and
simultaneously designating the HARS for the purpose of remediation.
Accordingly, EPA has prepared a Supplemental EIS entitled, ``Supplement
to the Environmental Impact Statement on the New York Dredged Material
Disposal Site Designation for the Designation of the Historic Area
Remediation Site (HARS) in the New York Bight Apex.'' The document
addresses the environmental considerations relevant to the HARS, and
identifies the Priority Remediation Area (PRA) within the HARS. Anyone
desiring a copy of the Supplemental EIS may obtain one from the address
given above.
The action discussed in the Supplemental EIS is the simultaneous
termination/de-designation of the Mud Dump Site and designation of the
HARS. The appropriateness of placing specific material at a designated
site is determined on a case-by-case basis as part of the process of
issuing permits under the MPRSA. The Category II capacity of the
existing Mud Dump Site will be reached by September 1, 1997. The basis
for this limit is explained in the Mud Dump Site Management and
Monitoring Plan (SMMP), which can be obtained by contacting Douglas A.
Pabst, EPA Region 2, at (212) 637-3797 (E-mail
pabst.douglas@epamail.epa.gov) or Brian May, USACE-New York District
(NYD), at (212) 264-1853 (E-mail: [email protected]).
The following alternatives were evaluated in detail in the
Supplemental EIS:
1. No Action
Under this alternative, there would be no designation of a HARS in
the New York Bight Apex for the placement of Remediation Material. With
the no action alternative, Category II dredged material capacity will
be reached by September 1, 1997; no Category II disposal will be
allowed at the Mud Dump Site after capacity is reached. The disposal of
Category I dredged materials would continue until the capacity of the
Mud Dump Site is reached (i.e., 31 mcy of Category I). There would be
no change to the size or management of the present Mud Dump Site. EPA
has not selected the no action alternative because this alternative
does not allow for any remediation of the degraded sediments outside
the Mud Dump Site.
2. Closure of the Mud Dump Site With No Designation of the HARS
Under this alternative, the Mud Dump Site would be closed/de-
designated by September 1, 1997, and there would be no designation of
the HARS. Similar to the no action alternative, this option does not
allow for any remediation of degraded sediments inside or outside of
the Mud Dump Site, and thus was not selected.
3. Remediation (Preferred Alternative)
Under the remediation alternative (which is the subject of today's
proposed rule), there would be simultaneous closure/de-designation of
the Mud Dump Site and designation of the HARS by September 1, 1997. The
proposed HARS, which will include the 2.2 square nautical mile area of
the Mud Dump Site, would be an approximately 15.7 square nautical mile
area located approximately 3.5 nautical miles east of Highlands, New
Jersey and 7.7 nautical miles south of Rockaway, New York. The Mud Dump
Site is located approximately 5.3 nautical miles east of Highlands, New
Jersey and 9.6 nautical miles south of Rockaway, New York. The proposed
HARS will include the following three areas (See Figure 1):
BILLING CODE 6560-50-P
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[GRAPHIC] [TIFF OMITTED] TP13MY97.000
BILLING CODE 6560-50-C
[[Page 26272]]
Priority Remediation Area (PRA): A 9.0 square nautical mile area to
be remediated with at least 1 meter of Remediation Material. The PRA
encompasses the area of degraded sediments as described in greater
detail in the Supplemental EIS.
Buffer Zone: An approximately 5.7 square nautical mile area (0.27
nautical mile wide band around the PRA) in which no placement of the
Material for Remediation will be allowed, but may receive Material for
Remediation that incidentally spreads out of the PRA.
No Discharge Zone: An approximately 1.0 square nautical mile area
in which no placement or incidental spread of Material for Remediation
is allowed.
Remediation would be accomplished by covering all areas within the
PRA, prioritized by the degree of degradation, with at least a 1 meter
cap (minimum required cap thickness) of the Material for Remediation.
The Supplemental EIS selects remediation as the preferred
alternative following a comparison of the four proposed project
alternatives. The remediation alternative would reduce the toxicity of
area sediments to sensitive marine organisms and would decrease the
contaminant bioavailability and possible sublethal effects to fish and
shellfish resources, thereby reducing potential trophic transfer of
contaminants to piscivorous marine birds, mammals and human beings. As
stated in the July 24, 1996, 3-Party letter: ``Simultaneous with
closure of the MDS, the site and surrounding areas that have been used
historically as disposal sites for contaminated material will be
redesignated under 40 CFR part 228 as the Historic Area Remediation
Site. This designation will include a proposal that the site be managed
to reduce impacts at the site to acceptable levels (in accordance with
40 CFR 228.11(c)).'' As further stated in the July 24, 1996, 3-Party
Letter: ``The designation of the Historic Area Remediation Site will
assure long-term use of category I dredge material.'' A draft SMMP for
the HARS has been prepared and may be obtained by contacting Douglas A.
Pabst, EPA Region 2, at (212) 637-3797 (E-mail:
pabst.douglas@epamail.epa.gov) or Brian May, USACE-New York District
(NYD), at (212) 264-1853 (E-mail: [email protected]).
4. Restoration
Under the restoration alternative, there would be the simultaneous
closure/de-designation of the Mud Dump Site and designation of the HARS
by September 1, 1997. The HARS would include the present area of the
Mud Dump Site and areas outside the Mud Dump Site found to be degraded
by historical dredged material disposal. The restoration work would be
conducted by covering degraded sediment areas with at least a one meter
cover of sandy Material for Remediation (0 to 10% fines). Restoration
work would be prioritized by the degree of degradation--that is, areas
exhibiting the greatest degradation would be restored first. EPA did
not select this alternative since it would have contributed to a loss
of mud, and muddy sand habitats, with possible negative effects to
living resources (e.g., lobster and winter flounder). Further, there is
limited availability of sandy Material for Remediation from New York-
New Jersey Harbor and surrounding areas, and no dedicated funding for
obtaining suitable material from other sources (e.g., inlet projects or
mining sites). This could make restoration infeasible or result in a
much longer restoration period than Alternative 3, with continued
exposure of degraded sediments to the biotic zone of the New York
Bight. In addition, one of the objectives of the July 24, 1996, 3-Party
letter is that the designation of the Historic Area Remediation Site
assures long-term use of Category I dredged material.
V. Proposed Action
Today's proposal would implement Alternative 3 of the Supplemental
EIS. The proposed HARS (which includes the 2.2 square nautical mile Mud
Dump Site) is a 15.7 square nautical mile area located approximately
3.5 nautical miles east of Highlands, New Jersey, and 7.7 nautical
miles south of Rockaway, New York, and bounded by the coordinates shown
in Table 1.
In order to reduce adverse effects that have occurred within the
HARS (see, 40 CFR 228.11(c)), use of the site would be limited to the
placement of Remediation Material. Remediation Material, as provided in
the July 24, 1996, 3-party letter, is ``uncontaminated dredged material
(i.e., dredged material that meets current Category I standards and
will not cause significant undesirable effects, including through
bioaccumulation)''. Based upon evaluation for environmental impact
under 40 CFR part 227, subpart B, material to be used for remediation
must satisfy the criteria of 40 CFR 227.6 and 227.27 and not indicate a
potential for short term (acute) impacts or long term (chronic)
impacts. Consistent with achieving the objective of remediating the
HARS to acceptable levels of impact, material to be used for
remediation will possess characteristics that demonstrably contribute
to the improvement of conditions within the area in which they are to
be placed so as to enable development of sustainable and diverse
communities of healthy benthic marine life.
If at any time remediation operations at the site cause significant
adverse environmental impacts, EPA will place such additional
limitations on site use as are necessary to reduce the impacts to
acceptable levels, particularly taking into account the following
factors: movement of materials into estuaries or marine sanctuaries, or
onto oceanfront beaches, or shorelines; movement of materials toward
productive fishery or shell fishery areas; absence from the HARS of
pollution-sensitive biota characteristic of the general area;
progressive, non-seasonal changes in water quality or sediment
composition at the HARS, when these changes are attributable to
material placed at the HARS; progressive, non-seasonal changes in
composition or numbers of pelagic, demersal, or benthic biota at or
near the HARS, when these changes are attributable to the material
placed at the HARS; and accumulation of constituents from the material
in marine biota near the HARS. See, 40 CFR 228.10.
VI. Site Designation Criteria
Under 40 CFR 228.5, five general criteria are used in the selection
and approval of sites under section 102 of the MPRSA for continuing
use. Pursuant to Sec. 228.5(a), sites are selected so as to minimize
interference with other marine activities, particularly avoiding areas
of existing fisheries or shell fisheries, and areas of heavy
navigational use. For additional information on Sec. 228.5(a) see
sections 3.5, 4.0, 4.1, 4.2, 4.2.1, 4.2.2, and 4.2.4 of the
Supplemental EIS. Pursuant to Sec. 228.5(b), sites are situated such
that temporary water quality perturbations caused by site operations
would be expected to be reduced to normal ambient levels before
reaching any beach shoreline, sanctuary or geographically limited
fishery area. For additional information on Sec. 228.5(b) see Sections
3.2.4, 4.2.2, 4.2.3, and 5.0 of the Supplemental EIS. Pursuant to
Sec. 228.5(c), if site designation studies show that any interim site
does not meet the site selection criteria, use of such site shall be
terminated as soon as an alternate site can be designated. Pursuant to
Sec. 228.5(d), site size is limited in order to localize for
identification and control any immediate adverse impacts, and to
facilitate effective monitoring for long-range effects. For additional
information
[[Page 26273]]
on Sec. 228.5(d) see Section 5.0 of the Supplemental EIS. Pursuant to
Sec. 228.5(e), EPA will, wherever feasible, designate sites beyond the
edge of the continental shelf or sites that have been historically
used. For additional information on Sec. 228.5(e) see Sections 3.2.1
and 3.2.2 of the Supplemental EIS.
As described in Chapter 4 of the Supplemental EIS, today's proposal
complies with the general criteria of Sec. 228.5. Specifically, the
HARS, which will be remediated to improve its current condition, is not
in a geographically limited fishery area, is not in a major navigation
area and otherwise has no geographically limited resource values that
are not abundant in other parts of this coastal region. The Material
for Remediation placed at the site will not reach any significant areas
such as a marine sanctuary, beach, or other important natural resource
area (i.e., the buffer zone ensures that transport beyond the HARS
boundaries during initial mixing is avoided). Neither the HARS nor the
existing Mud Dump Site are interim sites, and the HARS has an
appropriately limited size that will allow for effective monitoring and
localize impacts. Although the site is not located off the Continental
Shelf, it is located in an area previously affected by historical
dredged material disposal. Use of a site off the Continental Shelf is
not feasible because a major underlying purpose of the HARS designation
is to provide for remediation of such historically used areas, and
these areas are located on the continental shelf.
Section 228.6 of the Ocean Dumping Regulations also lists eleven
specific factors used in evaluating a proposed site. These 11 specific
criteria were also considered in developing today's proposed rule, as
described below, and documented in the Supplemental EIS.
1. Geographical position, depth of water, bottom topography and
distance from coast (40 CFR 228.6(a)(1): The HARS (which includes the
2.2 square nautical area of the mile Mud Dump Site) is a 15.7 square
nautical mile area located approximately 3.5 nautical miles east of
Highlands, New Jersey and 7.7 nautical miles south of Rockaway, New
York, bounded by the following coordinates:
Table 1
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
A............................................... 40 deg.25'39''
N 73 deg.53'55''
W 40 deg.25.65'
N 73 deg.53.92'
W
M............................................... 40 deg.25'39''
N 73 deg.48'58''
W 40 deg.25.65'
N 73 deg.48.97'
W
P............................................... 40 deg.21'19''
N 73 deg.48'57''
W 40 deg.21.32'
N 73 deg.48.95'
W
R............................................... 40 deg.21'19''
N 73 deg.52'30''
W 40 deg.21.32'
N 73 deg.52.50'
W
S............................................... 40 deg.21'52''
N 73 deg.53'55''
W 40 deg.21.87'
N 73 deg.53.92'
W
V............................................... 40 deg.21'52''
N 73 deg.52'30''
W 40 deg.21.87'
N 73 deg.52.50'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
The proposed HARS includes the following 3 areas:
Priority Remediation Area (PRA): 9.0 square nautical mile area to
be remediated with at least 1 meter of Remediation Material, bounded by
the following coordinates:
Table 2
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
B............................................... 40 deg.25'23''
N 73 deg.53'34''
W 40 deg.25.38'
N 73 deg.53.57'
W
D............................................... 40 deg.25'22''
N 73 deg.52'08''
W 40 deg.25.37'
N 73 deg.52.13'
W
F............................................... 40 deg.23'13''
N 73 deg.52'09''
W 40 deg.23.22'
N 73 deg.52.15'
W
G............................................... 40 deg.23'13''
N 73 deg.51'28''
W 40 deg.23.22'
N 73 deg.51.47'
W
H............................................... 40 deg.22'41''
N 73 deg.51'28''
W 40 deg.22.68'
N 73 deg.51.47'
W
I............................................... 40 deg.22'41''
N 73 deg.50'43''
W 40 deg.22.68'
N 73 deg.50.72'
W
L............................................... 40 deg.25'22''
N 73 deg.50'44''
W 40 deg.25.37'
N 73 deg.50.73'
W
N............................................... 40 deg.25'22''
N 73 deg.49'19''
W 40 deg.25.37'
N 73 deg.49.32'
W
O............................................... 40 deg.21'35''
N 73 deg.49'19''
W 40 deg.21.58'
N 73 deg.49.32'
W
Q............................................... 40 deg.21'36''
N 73 deg.52'08''
W 40 deg.21.60'
N 73 deg.52.13'
W
T............................................... 40 deg.22'08''
N 73 deg.52'08''
W 40 deg.22.13'
N 73 deg.52.13'
W
U............................................... 40 deg.22'08''
N 73 deg.53'34''
W 40 deg.22.13'
N 73 deg.53.57'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
Water depths within this area range from 40 feet (12 meters) to 138
feet (42 meters). The bottom topography is characterized by mounds from
previous disposal activities that gradually slope downward toward the
southeast near the Hudson Shelf Valley.
Buffer Zone: an approximately 5.7 square nautical mile area (0.27
nautical mile wide band around the PRA) in which no placement of the
Material for Remediation will be allowed, but which may receive
Remediation Material that incidentally spreads out of the PRA, bounded
by the following coordinates:
Table 3
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
A............................................... 40 deg.25'39''
N 73 deg.53'55''
W 40 deg.25.65'
N 73 deg.53.92'
W
[[Page 26274]]
B............................................... 40 deg.25'23''
N 73 deg.53'34''
W 40 deg.25.38'
N 73 deg.53.57'
W
C............................................... 40 deg.25'39''
N 73 deg.51'48''
W 40 deg.25.65'
N 73 deg.51.80'
W
D............................................... 40 deg.25'22''
N 73 deg.52'08''
W 40 deg.25.37'
N 73 deg.52.13'
W
E............................................... 40 deg.23'48''
N 73 deg.51'48''
W 40 deg.23.80'
N 73 deg.51.80'
W
F............................................... 40 deg.23'13''
N 73 deg.52'09''
W 40 deg.23.22'
N 73 deg.52.15'
W
G............................................... 40 deg.23'13''
N 73 deg.51'28''
W 40 deg.23.22'
N 73 deg.51.47'
W
H............................................... 40 deg.22'41''
N 73 deg.51'28''
W 40 deg.22.68'
N 73 deg.51.47'
W
I............................................... 40 deg.22'41''
N 73 deg.50'43''
W 40 deg.22.68'
N 73 deg.50.72'
W
J............................................... 40 deg.23'48''
N 73 deg.51'06''
W 40 deg.23.80'
N 73 deg.51.10'
W
K............................................... 40 deg.25'39''
N 73 deg.51'06''
W 40 deg.25.65'
N 73 deg.51.10'
W
L............................................... 40 deg.25'22''
N 73 deg.50'44''
W 40 deg.25.37'
N 73 deg.50.73'
W
M............................................... 40 deg.25'39''
N 73 deg.48'58''
W 40 deg.25.65'
N 73 deg.48.97'
W
N............................................... 40 deg.25'22''
N 73 deg.49'19''
W 40 deg.25.37'
N 73 deg.49.32'
W
O............................................... 40 deg.21'35''
N 73 deg.49'19''
W 40 deg.21.58'
N 73 deg.49.32'
W
P............................................... 40 deg.21'19''
N 73 deg.48'57''
W 40 deg.21.32'
N 73 deg.48.95'
W
Q............................................... 40 deg.21'36''
N 73 deg.52'08''
W 40 deg.21.60'
N 73 deg.52.13'
W
R............................................... 40 deg.21'19''
N 73 deg.52'30''
W 40 deg.21.32'
N 73 deg.52.50'
W
S............................................... 40 deg.21'52''
N 73 deg.53'55''
W 40 deg.21.87'
N 73 deg.53.92'
W
T............................................... 40 deg.22'08''
N 73 deg.52'08''
W 40 deg.22.13'
N 73 deg.52.13'
W
U............................................... 40 deg.22'08''
N 73 deg.53'34''
W 40 deg.22.13'
N 73 deg.53.57'
W
V............................................... 40 deg.21'52''
N 73 deg.52'30''
W 40 deg.21.87'
N 73 deg.52.50'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
No Discharge Zone: an approximately 1.0 square nautical mile area
in which no placement or incidental spread of the Material for
Remediation is allowed, bounded by the following coordinates:
Table 4
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
C............................................... 40 deg.25'39''
N 73 deg.51'48''
W 40 deg.25.65'
N 73 deg.51.80'
W
E............................................... 40 deg. 23'
48'' N 73 deg. 51'
48'' W 40 deg. 23.80'
N 73 deg. 51.80'
W
J............................................... 40 deg. 23'
48'' N 73 deg. 51'
06'' W 40 deg. 23.80'
N 73 deg. 51.10'
W
K............................................... 40 deg. 25'
39'' N 73 deg. 51'
06'' W 40 deg. 25.65'
N 73 deg. 51.10'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
For additional information see Sections 3.1, 3.2.2, 3.3.1, 3.3.4,
4.1, 4.2, 4.2.9 of the Supplemental EIS.
2. Location in relation to breeding, spawning, nursery, feeding, or
passage areas of living resources in adult or juvenile phases (40 CFR
228.6(a)(2)): There are substantial living marine resources that breed,
spawn, feed and transit the proposed HARS in both juvenile and adult
phases. These biological resources are utilized by commercial and
recreational fishermen. Placement of the Material for Remediation at
the HARS is intended to help improve the sediment conditions in the
area, and thus should be beneficial to marine life.
Approximately 30 species of whales, seals, and dolphins are
observed in the mid-Atlantic area in the course of their migration.
Three endangered and two threatened species of sea turtles are found in
the mid-Atlantic. Two of the five, the Kemp's ridley and loggerhead
turtle, are known to occur near shore. Fin and humpback whales occur in
both near shore and offshore waters. Several species of seabirds breed
in the middle Atlantic states, with New Jersey and Long Island
harboring the largest nesting areas. Of particular concern are the
least tern, roseate tern, and the black skimmer, as the present
populations of these species are greatly reduced over historic
population sizes. The HARS lies within the Atlantic Flyway through
which over three million migratory waterfowl travel annually. Although
these activities occur in the vicinity of the proposed HARS, no feature
of the life history of valuable organisms is known to be unique to the
area.
With respect to endangered and threatened species, informal
consultation was conducted with the U.S. Fish and Wildlife Service
(USFWS) and the National Marine Fisheries Service (NMFS). The USFWS
concurred with EPA's determination that species under its jurisdiction
would not likely be adversely affected by the proposed action. EPA
prepared a Biological Assessment of the proposed action on four species
under NMFS jurisdiction: Kemp's ridley sea turtle, loggerhead sea
turtle, humpback whale, and the fin whale. The Biological Assessment,
which concludes that the proposed action is not likely to affect these
four species, is available upon request by contacting the person listed
in the FOR FURTHER INFORMATION CONTACT section. For additional
information see Sections 3.4, 3.5, 4.2.2, 4.3.1.4, 4.3.2.4, 4.3.3.4 of
the Supplemental EIS.
3. Location in relation to beaches and other amenity areas (40 CFR
228.6(a)(3)): There are heavily used beaches, public shorelines and
recreational facilities on the southern coast of Long Island, New York,
and the Atlantic shore of New Jersey. The HARS encompasses all benthic
areas that EPA has determined are appropriate for remediation and show
evidence of dredged material disposal and/or historical ocean dumping
activities as found within the 30 square nautical mile Study Area
evaluated in the SEIS. Portions of the ocean front beaches in
[[Page 26275]]
New Jersey will be as close as 3.5 nautical miles west of the HARS;
amenity areas in Long Island, New York, will be 7.4 nautical miles from
the HARS. Given the rapid dissipation characteristics of dredge plumes
(i.e., plume dilution after two hours, based on total suspended solids,
ranged from approximately 64,000:1 to 557,000:1) and that virtually all
released materials settle to the bottom near the release point, the
Material for Remediation placed in the HARS would not adversely affect
beaches or similar amenities. For additional information see Sections
3.1, 4.2.1, 4.2.3 of the Supplemental EIS.
4. Types and quantities of wastes proposed to be disposed of , and
proposed methods of release, including methods of packing the waste, if
any (40 CFR 228.6(a)(4)): Approximately 41 mcy of the Material for
Remediation will be placed at the HARS. This estimate is based upon the
placement of a 1 meter cap (minimum required cap thickness) of the
Material for Remediation on sediments within the PRA. This volume is an
estimate; past capping experience suggests that the actual remediation
volume will be higher due to settling and mounding of the material. The
Material for Remediation will be generated through the maintenance and
development of navigation channels and berthing areas in the Port of
New York and New Jersey and surrounding areas, and could also be
generated as a result of non-navigational dredging. All of the
materials would be transported to the HARS by dump scow or hopper
dredge. The Material for Remediation placed in the HARS would not be
containerized or packaged. For additional information see Sections
3.2.3, 3.2.4, and 5.0 of the Supplemental EIS.
5. Feasibility of surveillance and monitoring (40 CFR 228.6(a)(5)):
Surveillance of the site can be accomplished by boat, helicopter,
disposal inspectors aboard barges, scows, and tugboats, or through
radar or satellite. This effort would be conducted jointly by the EPA--
USACE New York District , and the U.S. Coast Guard. The EPA has
developed a draft HARS SMMP which covers post-closure activities at the
Mud Dump Site and remediation activities within the HARS upon its
designation (see below for information on obtaining the HARS SMMP). The
HARS will be managed to reduce impacts at the site to acceptable levels
(in accordance with 40 CFR 228.11 (c)). For additional information see
Sections 3.2.4, 4.3.1.7, 4.3.2.7, 4.3.3.7, 4.3.4.7, and 5.0 of the
Supplemental EIS.
6. Dispersal, horizontal transport and vertical mixing
characteristics of the area, including prevailing current direction and
velocity, if any (40 CFR 228.6(a)(6)): Prevailing long-term currents in
the New York Bight, which includes the area of the HARS, are to the
southwest at mean speeds of approximately 3.7 cm/second, with an
occasional clockwise eddy in the Bight Apex. Surface waves are
generally less than 2 meters in height except during major storms which
occur most frequently in the fall and winter seasons. Wave-induced near
bottom currents are greater than 20 cm/second only when surface wave
heights exceed 3 meters, wave periods are in excess of 10 seconds, and
storm centers are to the east or southeast. These wave conditions are
encountered less than 3% of the time in the fall and winter, and less
than 1% of the time in the spring and summer. Near bottom oscillatory
currents at the HARS are relatively weak with maximum speeds on the
order of 10 cm/s. Mean currents are also weak, with direction that is
dependent upon location, water depth, and bottom topography.
Short term dispersion in the water column is a function of tidal
forces and currents at the time of placement. Deposited Remediation
Material sediments are relatively stable under non-storm conditions.
Resuspension and dispersion after deposition is primarily caused by
major storm activity and the most intense storms can resuspend and
transport sandy sediments deposited in less than 20 m of water. Any
potential for transport of the Material for Remediation to beaches and
amenities is negligible. For additional information see Sections 3.3.3,
3.3.4, 3.3.5, 3.3.6, 3.3.7, 3.3.8, and 4.2.3 of the Supplemental EIS.
7. Existence and effects of current and previous discharges and
dumping in the area (including cumulative effects) (40 CFR
228.6(a)(7)): The NY Bight Apex has been historically utilized for
ocean disposal of dredged material and a variety of waste products
since the 1800's (e.g., building materials, sewage sludge, industrial
waste). Ocean disposal of garbage was eliminated in 1934; other
industrial waste product disposal practices ended as a result of the
passage of the Ocean Dumping Ban Act (sewage sludge disposal ended in
1992). The size of the PRA within the HARS is 9.0 square nautical
miles. For additional information see Sections 3.2.1, 3.2.2, 3.2.3,
4.3.1.1, 4.3.2.1, and 4.3.3.1 of the Supplemental EIS.
As previously discussed in today's preamble and further explained
in Chapters 1 and 3 of the Supplemental EIS accompanying today's
proposal, field surveys have identified areas of sediments exhibiting
unacceptable toxicity to amphipods and elevated levels of
bioaccumulative contaminants within the MDS and surrounding areas.
Although precise quantification of the sources of such contamination is
not possible (with potential sources including historical dredged
material disposal, former 12-Mile Site sewage sludge dumping, the
Hudson River Plume, and atmospheric deposition), the presence of
degraded sediments exhibiting unacceptable toxicity and/or unacceptable
bioaccumulation is cause for concern. Bathymetric and side scan data
show evidence of dredged material disposal mounds in the Supplemental
EIS study area. The available information, as documented in the
accompanying Supplemental EIS, supports both the closure of the MDS and
designation and remediation of the HARS.
8. Interference with shipping, fishing, recreation, mineral
extraction, desalination, fish and shellfish culture, areas of special
scientific importance and other legitimate uses of the ocean (40 CFR
228.6(a)(8)): The site is located in the entrance to New York Harbor.
It is within the precautionary zone established by the U.S. Coast Guard
for commercial and recreational ship traffic. Discussions with local
harbor pilots indicate that the proposed activities at the HARS will
not interfere with commercial navigation activity. Neither desalination
nor fish or shellfish culture occurs near the site. This action is
intended to help improve sediment conditions in the area, and thus
should be beneficial to fishing. Sand mining in the area of the HARS
has been precluded by a 1996 statement of policy from the Minerals
Management Service (MMS). In a related matter, the MMS has stated that
areas of low petroleum potential in the vicinity of the site are under
moratorium for oil and gas exploration. The HARS is not a
scientifically important area. For additional information see Sections
3.5, 4.2.1, 4.2.2, 4.2.4, 4.2.5, 4.2.5.1, 4.2.5.2, 4.2.6, and 4.2.8 of
the Supplemental EIS.
9. The existing water quality and ecology of the site as determined
by available data or by trend assessment or baseline surveys (40 CFR
228.6(a)(9)): From 1994 to 1996, EPA Region 2 and the USACE NYD
conducted a variety of oceanographic surveys within an approximately 30
square nautical mile study area (including the 15.7 square nautical
mile HARS). Water quality in and near the HARS meets applicable Federal
marine water quality criteria; the water quality can be affected by
Hudson River outflow/plume and
[[Page 26276]]
natural seasonal cycles. With respect to site ecology, demersal and
pelagic fish are abundant in the site. Two benthic infaunal communities
(i.e., sandy and fine grain) occur in the site. Abundance of both
benthic communities is high, diversity is moderate. Neither of the
benthic communities is detectably impaired by contaminants in the
sediments. Studies conducted by EPA, however, indicate that when
sediments from the HARS area are removed and brought back to the
laboratory for subsequent toxicity testing using standard 10-day
amphipod (ampelisca abdita) acute toxicity test procedures, sediment
toxicity is observed in sediments from many areas of the HARS. These
studies revealed levels of toxicity within the HARS that would fail the
ocean disposal criteria and qualify as Category III dredged material.
Analyses conducted on worm tissue collected from the HARS revealed
levels of dioxin in excess of Category I levels but below Category III
levels. For additional information see Section 3.3.10, 3.4, and 3.5.2
of the Supplemental EIS.
10. Potential for the development or recruitment of nuisance
species in the site (40 CFR 228.6(a)(10)): Based on the available
evidence, including monitoring studies of the New York Bight Apex and
the Mud Dump Site, the Material for Remediation is not a potential
source for the development or recruitment of nuisance species in the
HARS. Monitoring results and available data indicate that placement of
dredged material at the Mud Dump Site has not extended the range of
undesirable living organisms or pathogens or degraded uninfected areas,
or introduced viable non-indigenous species into the area. For
additional information see sections 3.3, 3.4.1.1, 4.3.2.4, and 4.3.3.4
of the Supplemental EIS.
11. Existence at or in close proximity to the site of any
significant natural or cultural feature of historical importance (40
CFR 228.6(a)(11)): The site is located approximately 7.7 nautical miles
from the Gateway National Recreational Areas in Rockaway, NY, and 3.5
nautical miles from Sandy Hook, NJ. It is also near a number of
important features of historic importance, including the Marconi Twin
Lights (3.5 nautical miles away). Dredged material placed at the nearby
Mud Dump Site has not been found to affect state or national parks,
beaches, or features of historical importance. A cultural resources
survey of the study area was conducted as part of the development of
the Supplemental EIS; 15 shipwrecks were located within the study area.
EPA has determined to avoid (i.e., no placement within 500 meters of a
wreck) four of the vessels that are located in the PRA that have
potential eligibility to the National Register of Historic Places.
Avoidance ensures that the wrecks are available for further
investigation and determination for eligibility for nomination should
any future federal action be planned in the area. For additional
information see Sections 3.5.7, 4.3.1.5, 4.3.2.5, 4.3.3.5, and 4.3.4.5
of the Supplemental EIS.
In conclusion, the available information, as documented in the
accompanying SEIS, supports both the closure of the MDS and designation
and remediation of the HARS.
VII. Summary
Today's proposal would de-designate the Mud Dump Site and
simultaneously redesignate the area of that site and surrounding
degraded areas as the Historic Area Remediation Site. The proposed HARS
is compatible with the general criteria and specific factors used for
site evaluation. EPA thus is proposing the designation of the HARS as
an EPA approved site under authorities contained in MPRSA Section
102(c). Management of this site is delegated to the Regional
Administrator of EPA Region 2. Today's proposal would revise
Sec. 228.15(d)(6) to de-designate the Mud Dump Site and simultaneously
designate the HARS.
The proposed action would provide for remediation of the area
containing sediments exhibiting Category II and III characteristics.
These areas will be remediated with at least a 1 meter cap of
Remediation Material in order to isolate the areas from the marine
environment, thus assuring the potential effects of historical dumping
in the HARS are reduced to acceptable levels.
VIII. Compliance With Other Acts and Orders
A. 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 result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, 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.''
Today's proposed action, which would simultaneously de-designate
the Mud Dump Site and designate the HARS, is not a significant
regulatory action. The de-designation of the Mud Dump Site would not
affect the disposal of Category II material, because the Mud Dump Site
will reach capacity for Category II materials in the next few months
(before September 1, 1997) due to already existing technical
limitations on the height of the mound. This would occur regardless of
whether the Agency goes forward with today's proposed action. With
regard to Category I material, the proposed HARS would continue to
provide an EPA-designated site for the placement of ``uncontaminated
dredged material (i.e., dredged material that meets current Category I
standards and will not cause significant undesirable effects including
through bioaccumulation)'' (July 24,1996, 3-party letter). It thus has
been determined that this rule is not a ``significant regulatory
action'' under the terms of the Executive Order 12866 and is therefore
not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) provides that, whenever an
agency proposes a rule subject to notice and comment requirements under
5 U.S.C. 553, it must prepare an initial regulatory flexibility
analysis unless the head of the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities (5 U.S.C. 604 and 605). Today's proposal is not likely to
impact a substantial number of small entities. Even if small pier and
berth owners and small marinas might be economically affected, such
economic effects would be slight because although today's proposal
would terminate the Mud Dump Site, it also would simultaneously
designate an area (the HARS) for the placement of Material for
Remediation. As provided in the July 24, 1996, 3-Party letter, such
material is ``* * * uncontaminated dredged material (i.e., dredged
material that meets current Category I standards and will not cause
significant undesirable effects, including through bioaccumulation).''
Thus, today's
[[Page 26277]]
proposal will help assure the ``* * * long-term use of category 1
dredge material.'' from NY/NJ Harbor and surrounding areas. With
respect to Category II dredged material, the capacity of the Mud Dump
Site to receive Category II material will be used up by September 1,
1997 as a result of pre-existing constraints, even in the absence of
today's proposal. For all of these reasons, the Regional Administrator
certifies, pursuant to Section 605(b) of the RFA, that the rule will
not have a significant economic impact on a substantial number of small
entities.
C. 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 rule does not establish or modify any
information or record-keeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
D. The Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act (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 of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
This rule contains no Federal mandates (under the regulatory
provisions of the UMRA) for State, local, or tribal governments or
sections 205 and 205 of the UMRA. As is explained elsewhere in this
preamble, the proposed rule de-designates the Mud Dump Site, and
designates instead an area in the ocean suitable for the placement of
Remediation Material. Accordingly, it imposes no new enforceable duty
on any State, local or tribal governments or the private sector. Even
if this rule did contain a Federal mandate, it would not result in
annual expenditures of $100 million or more for State, local or tribal
governments in the aggregate, or the private sector. Thus, this rule is
not subject to the requirements of sections 202 and 205 of 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 also do not apply to this rule.
E. The Endangered Species Act
Under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C.
1536(a)(2), federal agencies are required to ``insure that any action
authorized, funded, or carried on by such agency * * * is not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of habitat
of such species. * * *'' Under regulations implementing the Endangered
Species Act, a federal agency is required to consult with either the U.
S. Fish and Wildlife Service or the National Marine Fisheries Service
(depending on the species involved) if the agency's action ``may
affect'' endangered or threatened species or their critical habitat.
See, 50 CFR 402.14(a).
EPA initiated its consultation process with the U.S. Fish and
Wildlife Service on April 6, 1995. The consultation process was
concluded with them on July 28, 1995, with their concurrence that EPA's
action was not likely to adversely affect federally listed species
under U. S. Fish and Wildlife Service jurisdiction. EPA initiated
threatened and endangered species consultation with the National Marine
Fisheries Service on April 4, 1996. Based on this coordination, EPA
concluded that the preparation of a biological assessment was warranted
for the Kemp's ridley and loggerhead sea turtles, and the humpback and
fin whales within the Mud Dump Site and surrounding areas. The National
Marine Fisheries Service concurred with this approach on May 8, 1996,
and EPA sent them a Biological Assessment in May, 1997, which concluded
that there are unlikely to be any effects on the threatened or
endangered species or their critical habitat.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: May 6, 1997.
William J. Muszynski,
Acting Regional Administrator, EPA Region 2.
In consideration of the foregoing, EPA is proposing to amend part
228 of title 40 as set forth below.
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
1. The authority citation for part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by revising paragraph (d)(6) to read
as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(d) * * *
(6) Historical Area Remediation Site (HARS) Designation/Mud Dump
Site Termination.
(i) Status of Former Mud Dump Site: The Mud Dump Site, designated
as an Impact Category I site on May 4, 1984, is terminated.
(ii) Location: (A) The HARS (which includes the 2.2 square nautical
mile area of the former Mud Dump Site) is a 15.7 square nautical mile
area located approximately 3.5 nautical miles east of Highlands, New
Jersey and 7.7 nautical miles south of Rockaway, Long Island. The HARS
consists of a Primary Remediation Area (PRA), a Buffer Zone, and a No
Discharge Zone. The HARS is bounded by the following coordinates:
[[Page 26278]]
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
A............................................... 40 deg.25'39''
N 73 deg.53'55''
W 40 deg.25.65'N 73 deg.53.92'
W
M............................................... 40 deg.25'39''
N 73 deg.48'58''
W 40 deg.25.65'N 73 deg.48.97'
W
P............................................... 40 deg.21'19''
N 73 deg.48'57''
W 40 deg.21.32'N 73 deg.48.95'
W
R............................................... 40 deg.21'19''
N 73 deg.52'30''
W 40 deg.21.32'N 73 deg.52.50'
W
S............................................... 40 deg.21'52''
N 73 deg.53'55''
W 40 deg.21.87'N 73 deg.53.92'
W
V............................................... 40 deg.21'52''
N 73 deg.52'30''
W 40 deg.21.87'N 73 deg.52.50'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
(B) The PRA, is a 9.0 square nautical mile area to be remediated
with at least a 1 meter cap of the Material for Remediation. The PRA is
bounded by the following coordinates:
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
B............................................... 40 deg.25'23''
N 73 deg.53'34''
W 40 deg.25.38'
N 73 deg.53.57'
W
D............................................... 40 deg.25'22''
N 73 deg.52'08''
W 40 deg.25.37'
N 73 deg.52.13'
W
F............................................... 40 deg.23'13''
N 73 deg.52'09''
W 40 deg.23.22'
N 73 deg.52.15'
W
G............................................... 40 deg.23'13''
N 73 deg.51'28''
W 40 deg.23.22'
N 73 deg.51.47'
W
H............................................... 40 deg.22'41''
N 73 deg.51'28''
W 40 deg.22.68'
N 73 deg.51.47'
W
I............................................... 40 deg.22'41''
N 73 deg.50'43''
W 40 deg.22.68'
N 73 deg.50.72'
W
L............................................... 40 deg.25'22''
N 73 deg.50'44''
W 40 deg.25.37'
N 73 deg.50.73'
W
N............................................... 40 deg.25'22''
N 73 deg.49'19''
W 40 deg.25.37'
N 73 deg.49.32'
W
O............................................... 40 deg.21'35''
N 73 deg.49'19''
W 40 deg.21.58'
N 73 deg.49.32'
W
Q............................................... 40 deg.21'36''
N 73 deg.52'08''
W 40 deg.21.60'
N 73 deg.52.13'
W
T............................................... 40 deg.22'08''
N 73 deg.52'08''
W 40 deg.22.13'
N 73 deg.52.13'
W
U............................................... 40 deg.22'08''
N 73 deg.53'34''
W 40 deg.22.13'
N 73 deg.53.57'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
(iii) Size: 15.7 square nautical miles.
(iv) Depth: Ranges from 12 to 42 meters.
(v) Restrictions on Use:
(A) The site will be managed so as to reduce impacts within the PRA
to acceptable levels in accordance with 40 CFR 228.11(c). Use of the
site will be restricted to dredged material suitable for use as the
Material for Remediation. This material shall be selected so as to
ensure it will not cause significant undesirable effects including
through bioaccumulation or unacceptable toxicity, in accordance with 40
CFR 227.6.
(B) Placement of Material for Remediation will be limited to the
PRA. Placement of Material for Remediation within the PRA is not
allowed in a 0.27 nautical mile radius around the following coordinates
due to the presence of shipwrecks: 40 deg.25.30' W , 73 deg.52.80' N;
40 deg.25.27' W, 73 deg.52.13' N; 40 deg.25.07' W, 73 deg.50.05' N;
40 deg.22.46' W, 73 deg.53.27' N.
(C) No placement of material may take place within the Buffer Zone,
although this zone may receive material that incidentally spreads out
of the PRA. The Buffer Zone is an approximately 5.7 square nautical
mile area (0.27 nautical mile wide band around the PRA), which is
bounded by the following coordinates:
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
A............................................... 40 deg.25'39''
N 73 deg.53'55''
W 40 deg.25.65'N 73 deg.53.92'W
B............................................... 40 deg.25'23''
N 73 deg.53'34''
W 40 deg.25.38'N 73 deg.53.57'W
C............................................... 40 deg.25'39''
N 73 deg.51'48''
W 40 deg.25.65'N 73 deg.51.80'W
D............................................... 40 deg.25'22''
N 73 deg.52'08''
W 40 deg.25.37'N 73 deg.52.13'W
E............................................... 40 deg.23'48''
N 73 deg.51'48''
W 40 deg.23.80'N 73 deg.51.80'W
F............................................... 40 deg.23'13''
N 73 deg.52'09''
W 40 deg.23.22'N 73 deg.52.15'W
G............................................... 40 deg.23'13''
N 73 deg.51'28''
W 40 deg.23.22'N 73 deg.51.47'W
H............................................... 40 deg.22'41''
N 73 deg.51'28''
W 40 deg.22.68'N 73 deg.51.47'W
I............................................... 40 deg.22'41''
N 73 deg.50'43''
W 40 deg.22.68'N 73 deg.50.72'W
J............................................... 40 deg.23'48''
N 73 deg.51'06''
W 40 deg.23.80'N 73 deg.51.10'W
K............................................... 40 deg.25'39''
N 73 deg.51'06''
W 40 deg.25.65'N 73 deg.51.10'W
L............................................... 40 deg.25'22''
N 73 deg.50'44''
W 40 deg.25.37'N 73 deg.50.73'W
M............................................... 40 deg.25'39''
N 73 deg.48'58''
W 40 deg.25.65'N 73 deg.48.97'W
N............................................... 40 deg.25'22''
N 73 deg.49'19''
W 40 deg.25.37'N 73 deg.49.32'W
O............................................... 40 deg.21'35''
N 73 deg.49'19''
W 40 deg.21.58'N 73 deg.49.32'W
P............................................... 40 deg.21'19''
N 73 deg.48'57''
W 40 deg.21.32'N 73 deg.48.95'W
Q............................................... 40 deg.21'36''
N 73 deg.52'08''
W 40 deg.21.60'N 73 deg.52.13'W
R............................................... 40 deg.21'19''
N 73 deg.52'30''
W 40 deg.21.32'N 73 deg.52.50'W
S............................................... 40 deg.21'52'#
N 73 deg.53'55''
W 40 deg.21.87'N 73 deg.53.92'W
T............................................... 40 deg.22'08''
N 73 deg.52'08''
W 40 deg.22.13'N 73 deg.52.13'W
U............................................... 40 deg.22'08''
N 73 deg.53'34''
W 40 deg.22.13'N 73 deg.53.57'W
V............................................... 40 deg.21'52''
N 73 deg.52'30''
W 40 deg.21.87'N 73 deg.52.50'W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
[[Page 26279]]
(D) No placement or incidental spread of the material is allowed
within the No Discharge Zone, an approximately 1.0 square nautical mile
area, bounded by the following coordinates:
----------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
----------------------------------------------------------------------------------------------------------------
C............................................... 40 deg.25'39''
N 73 deg.51'48''
W 40 deg.25.65'
N 73 deg.51.80'
W
E............................................... 40 deg.23'48''
N 73 deg.51'48''
W 40 deg.23.80'
N 73 deg.51.80'
W
J............................................... 40 deg.23'48''
N 73 deg.51'06''
W 40 deg.23.80'
N 73 deg.51.10'
W
K............................................... 40 deg.25'39''
N 73 deg.51'06''
W 40 deg.25.65'
N 73 deg.51.10'
W
----------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds
DDM = Degrees, Decimal Minutes
(vi) Period of Use: Continuing use until EPA determines that the
PRA has been sufficiently capped with at least 1 meter of the Material
for Remediation. At that time, EPA will undertake any necessary
rulemaking to de-designate the HARS.
* * * * *
[FR Doc. 97-12480 Filed 5-8-97; 3:15 pm]
BILLING CODE 6560-50-P
