[Federal Register Volume 59, Number 154 (Thursday, August 11, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19289]
[[Page Unknown]]
[Federal Register: August 11, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-5028-7]
Ocean Dumping; Designation of Site
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA designates a deep ocean dredged material disposal site
(SF-DODS) located off San Francisco, California, for the disposal of
suitable dredged material removed from the San Francisco Bay region and
other nearby harbors or dredging sites. EPA has determined that the
site selected in the Final EIS as the preferred site will be the site
designated as SF-DODS in this Final Rule. The center of the SF-DODS is
located approximately 49 nautical miles (91 kilometers) west of the
Golden Gate and occupies an area of 6.5 square nautical miles (22
square kilometers). Water depths within the area range between 8,200 to
9,840 feet (2,500 to 3,000 meters). The center coordinates of the oval-
shaped site are: 37 deg.39.0' North latitude by 123 deg.29.0' West
longitude (North American Datum from 1983), with length (north-south
axis) and width (west-east axis) dimensions of approximately 4 nautical
miles (7.5 kilometers) and 2.5 nautical miles (4.5 kilometers),
respectively. This action is necessary to provide an acceptable ocean
dumping site for disposal of suitable dredged material; the suitability
of proposed dredged material is determined by appropriate sediment
testing protocols. The designation of SF-DODS is for a period of 50
years, with an interim capacity of 6 million cubic yards of dredged
material per calendar year until December 31, 1996. Site capacity
following December 31, 1996 will be determined based on either a
comprehensive long-term management strategy for management of dredged
materials from San Francisco Bay or on a separate alternatives-based
EPA evaluation of the need for ocean disposal. Disposal operations at
the site will be prohibited if the site management and monitoring
program is not implemented.
EFFECTIVE DATE: This rule is effective September 12, 1994.
ADDRESSES: The supporting document for this designation is the Final
Environmental Impact Statement (EIS) for Designation of a Deep Water
Ocean Dredged Material Disposal Site off San Francisco, California,
August 1993, which is available for public inspection at the following
locations:
A. EPA Public Information Reference Unit (PIRU), Room 2904 (rear),
401 M Street, SW., Washington, DC.
B. EPA Region IX, Library, 75 Hawthorne Street, 13th Floor, San
Francisco, California.
C. ABAG/MTC Library, 101 8th Street, Oakland, California.
D. Alameda County Library, 3121 Diablo Avenue, Hayward, California.
E. Bancroft Library, University of California, Berkeley,
California.
F. Berkeley Public Library, 2090 Kittredge Street, Berkeley,
California.
G. Daly City Public Library, 40 Wembley Drive, Daly City,
California.
H. Environmental Information Center, San Jose State University, 125
South 7th Street, San Jose, California.
I. Half Moon Bay Library, 620 Correas Street, Half Moon Bay,
California.
J. Marin County Library, Civic Center, 3501 Civic Center Drive, San
Rafael, California.
K. North Bay Cooperative Library, 725 Third Street, Santa Rosa,
California.
L. Oakland Public Library, 125 14th Street, Oakland, California.
M. Richmond Public Library, 325 Civic Center Plaza, Richmond,
California.
N. San Francisco Public Library, Civic Center, Larkin & McAllister,
San Francisco, California.
O. San Francisco State University Library, 1630 Holloway Avenue,
San Francisco, California.
P. San Mateo County Library, 25 Tower Road, San Mateo, California.
Q. Santa Clara County Free Library, 1095 N. Seventh Street, San
Jose, California.
R. Santa Cruz Public Library, 224 Church Street, Santa Cruz,
California.
S. Sausalito Public Library, 420 Litho Street, Sausalito,
California.
T. Stanford University Library, Stanford, California.
FOR FURTHER INFORMATION CONTACT: Mr. Allan Ota, Ocean Disposal
Coordinator, U.S. Environmental Protection Agency, Region IX (W-3-3),
75 Hawthorne Street, San Francisco, California 94105, telephone (415)
744-1980.
SUPPLEMENTARY INFORMATION:
A. Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act (MPRSA) of 1972, as amended, 33 U.S.C. Sections 1401 et seq., gives
the Administrator of EPA authority to designate sites where ocean
dumping may be permitted. On October 1, 1986 the Administrator
delegated authority to designate ocean dredged material disposal sites
(ODMDS) to the Regional Administrator of the EPA Region in which the
sites are located. The SF-DODS designation action is being made
pursuant to that authority.
The EPA Ocean Dumping Regulations (40 CFR 228.4) state that ocean
dumping sites will be designated by publication pursuant to 40 CFR part
228. This site designation is being published as final rulemaking in
accordance with Sec. 228.4(e) of the Ocean Dumping Regulations, which
permits the designation of ocean disposal sites for dredged material.
The center of the SF-DODS is located approximately 49 nautical
miles (91 kilometers) west of the Golden Gate and occupies an area of
approximately 6.5 square nautical miles (22 square kilometers). Water
depths within the area range between approximately 8,200 to 9,840 feet
(2,500 to 3,000 meters). The center coordinates of the oval-shaped site
are: 37 deg.39.0' North latitude by 123 deg.29.0' West longitude (North
American Datum from 1983), with length (north-south axis) and width
(west-east axis) dimensions of approximately 4 nautical miles (7.5
kilometers) and 2.5 nautical miles (4.5 kilometers), respectively. EPA
Region IX now designates SF-DODS as an ocean dredged material disposal
site for continued use for a period of 50 years, with an interim
capacity of 6 million cubic yards of dredged material per calendar year
until December 31, 1996.
Site use is subject to implementation of the specific site
management and monitoring requirements contained in this Final Rule,
which are now identified as the Site Monitoring and Management Plan
(SMMP) for the SF-DODS. The Proposed Rule designating the SF-DODS did
not set forth specific management and monitoring requirements in the
Rule itself. Instead, Region 9 had proposed that provisions concerning
site management and monitoring would be contained in a separate Site
Management and Monitoring Plan (SMMP) document. Though this separate
SMMP document would not, strictly, have been part of the Rule
designating the SF-DODS, Region 9 did signal its intent in the Preamble
accompanying the Proposed Rule that implementation of the provisions of
the SMMP document would have been mandatory. The Proposed Rule
specifically would have required that the SMMP be implemented as a
condition of site use. Comments received on the proposed Rule have
convinced Region 9 that the mandatory nature of site management and
monitoring would be placed on a clearer legal footing if the SMMP were
made a part of the Rule instead of being set forth in a separate
planning document.
The SMMP provisions in the Final Rule are closely related to Region
9's previous proposals on site monitoring and management. These
proposals have been put forth for public review and comment on at least
two occasions. First, Region 9 outlined its proposals concerning site
monitoring and management in the Preamble accompanying the Proposed
Rule designating the SF-DODS. Region 9 published the Proposed Rule in
the Federal Register on February 17, 1994 (59 FR 7952), and held open a
public comment period on the Proposed Rule until March 18, 1994.
Second, Region 9 completed a draft of a separate SMMP document and made
this document available for public review and comment. Region 9
published this SMMP document as an EPA Public Notice on April 20, 1994
and accepted comments on this document until June 6, 1994. The SMMP
provisions in the Final Rule were drafted after considering the public
comment received in response to the Proposed Rule Preamble and the SMMP
document. See Responses to Comments, Section F. below.
Region 9 is also preparing a Site Management and Monitoring Plan
Implementation Manual (SMMP Implementation Manual). This manual will
provide detailed guidance on practical aspects of implementing the SMMP
provisions in the Final Rule.
B. EIS Development
Section 102(c) of the National Environmental Policy Act (NEPA) of
1969, 42 U.S.C. Sections 4321 et seq., 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, including evaluation of reasonable alternatives to
the proposed action.
A Notice of Availability of the Draft EIS was published in the
Federal Register on December 11, 1992 discussing EPA's intent to
designate a deep water ocean dredged material disposal site off San
Francisco (57 FR 58805). The Draft EIS, titled: Draft Environmental
Impact Statement (EIS) for San Francisco Bay Deep Water Dredged
Material Disposal Site Designation, evaluated a range of potential
alternative disposal sites as summarized below. The comment period
closed on January 25, 1993. EPA received 35 comment letters on the
Draft EIS and incorporated changes where appropriate. On September 10,
1993, notice of availability for public review and comment on the Final
EIS was published in the Federal Register (58 FR 47741). The comment
period for the Final EIS closed on October 29, 1993.
EIS Alternatives Analysis
Several million cubic yards of dredged material are generated
annually in the San Francisco Bay area. Traditionally, most of this
dredged material has been disposed at sites within the San Francisco
Bay estuary. However, existing upland and in-bay sites have limited
capacity for disposal of large volumes of dredged material, and
concerns about the potential environmental impacts of continued large-
scale disposal within the estuary have grown steadily in recent years.
EPA's analysis of alternatives included detailed examination of
several potential ocean dump sites for dredged materials from San
Francisco Bay and a preliminary, less-detailed review of potential
alternative means of handling these dredged materials other than
disposal at an ocean dump site. For EPA's present purposes, a limited
review of alternatives to ocean dumping of dredged materials was
appropriate. EPA needed only to determine whether alternatives to ocean
dumping now appear to offer sufficient capacity for all dredged
material that will be generated in the future. Greater detail
concerning alternatives to ocean dumping of dredged material is not
necessary at this stage because designation of an ocean dumping site
under 40 CFR part 228 is essentially a preliminary, planning-like
measure. The practical effect of such a designation is only to require
that if future ocean dumping activity is permitted under 40 CFR part
227, such dumping should normally be consolidated at the designated
site. Designation of an ocean dumping site does not authorize any
actual dumping and does not preclude EPA or the U.S. Army Corps of
Engineers from finding that alternative means of managing dredged
materials from San Francisco Bay are available and environmentally
preferable.
EPA has determined that it is appropriate to designate an ocean
dumping site for dredged materials from San Francisco Bay site now,
even if alternatives to ocean dumping should eventually prove to be
available, because it appears unlikely that alternative means of
managing dredged material will accommodate all of this dredged material
that will be generated in the future. As discussed in the Final EIS,
there are many substantial obstacles involved with the potential
alternatives to ocean dumping of dredged material. As noted, one
alternative that is currently being employed is disposal of dredged
material within San Francisco Bay itself. Several resource and
regulatory agencies, however, have indicated that disposal of dredged
material within San Francisco Bay may be endangering the Bay ecosystem,
and some of these agencies have suggested or are working towards
setting low ceilings on the annual volume of dredged material that may
be placed in the Bay. Disposing of dredged materials in upland
locations or employing them for various beneficial uses are other
alternatives which may prove feasible. Current information, however,
which is recited in the Final EIS, suggests that it is unlikely that
these alternatives will feasibly accommodate all dredged materials
likely to be generated from San Francisco Bay in the future.
EPA and several other agencies are currently participating in a
comprehensive evaluation of management of dredged materials from San
Francisco Bay, known as the ``Long-Term Management Strategy''
(``LTMS''). As part of this LTMS effort, all disposal options,
including beneficial reuse, upland, in-bay, and ocean disposal
alternatives, are being further evaluated in a separate LTMS Policy
EIS/EIR. The LTMS agencies intend to set forth policies for the ongoing
development of such alternatives, and for comprehensive management of
all such sites, in the Policy EIS/EIR.
EPA's site designation decision reflects this LTMS effort. Today,
EPA is setting an interim site capacity for the SF-DODS of six million
cubic yards of dredged material per year, which shall be in effect only
until December 31, 1996. As the LTMS is completed, EPA will reexamine
the appropriate site capacity for the SF-DODS and will establish in a
separate rulemaking a capacity for the SF-DODS that reflects the LTMS
policy. In addition, in all cases (now, and in the future under a
comprehensive management plan for the region), the disposition of
dredged materials from individual projects will be evaluated by EPA
Region IX and the Corps' San Francisco District on a case-by-case basis
and EPA, taking into account all the alternatives available at the time
of permitting. Beneficial reuse alternatives will be preferred over
ocean disposal whenever they are practicable and would cause less
adverse impacts than ocean disposal.
The following ocean disposal alternatives were evaluated in detail
in the Final EIS:
1. No Action
Failure to designate a permanent ocean disposal site pursuant to
Section 102 of the MPRSA would have significant negative consequences.
First, the continued foreseeable need to have an appropriate site for
disposal of suitable sediments from various San Francisco Bay dredging
projects would place pressure on the Corps and EPA to approve on a
project-by-project basis the use of existing in-Bay or temporary ocean
dumping locations pursuant to either Clean Water Act Section 404 or
MPRSA Section 103. Continued, exclusive reliance on existing in-bay
disposal sites would not address concerns about environmental impacts
of in-bay disposal, and would not address concerns about economic
impacts due to delays and uncertainty associated with limited capacity
at these existing sites. Second, the Water Resources Act of 1992
prohibits the continued use of ocean dump sites which have not been
designated by EPA as Section 102 dump sites by the end of 1997. If EPA
fails to designate the SF-DODS by that date, then ocean disposal of
dredged materials taken from San Francisco Bay projects will be
effectively precluded.
2. Deepwater Alternative Site 3
This site is located approximately 47 nautical miles (87
kilometers) from the Golden Gate in an area where depths range
approximately 4,590 to 6,230 feet (1,400 to 1,900 meters). EPA has
eliminated this site from further consideration, primarily because of
its proximity to Pioneer Canyon and associated hardbottom areas. This
site would have greater impacts to benthic organisms than the preferred
alternative (Site 5), and would affect relatively scarce hardbottom
habitats.
3. Deepwater Alternative Site 4
This site is located approximately 50 nautical miles (93
kilometers) from the Golden Gate in an area where depths range
approximately from 6,230 to 6,900 feet (1,900 to 2,100 meters). EPA has
eliminated this site from further consideration, primarily because of
its proximity to Half Moon Bay and its high usage as commercial fishing
grounds as compared to Alternative Site 5. This site would also have
greater impacts to benthic organisms than the preferred alternative
(Site 5).
4. Deepwater Alternative Site 5 (Preferred Alternative)
The Final EIS identified this site as the preferred alternative
based on comparison to the alternative sites listed above, and to the
specific selection criteria listed in 40 CFR 228.6(a). Alternative Site
5 is located furthest from the coast (approximately 49 nautical miles
west of the Golden Gate) and in the deepest depth range (approximately
8,200 to 9,840 feet, or 2,500 to 3,000 meters). The 6.5 square nautical
mile site represents approximately one percent of the total area
encompassing the slope region studied by EPA Region IX. Bathymetric and
sediment surveys indicate Alternative Site 5 is located in a
depositional area which, because of existing topographic containment
features, is likely to retain dredged material which reaches the sea
floor. No significant impacts to other resources or amenity areas, such
as marine sanctuaries, are expected to result from designation of
Alternative Site 5. Existing and potential fisheries resources within
Alternative Site 5 are minimal and the site is removed from more
important fishing grounds located closer to the other alternative
sites. Abundances and biomass of demersal fishes and megafaunal
invertebrates, as well as abundances and diversity of infaunal
invertebrates, at Alternative Site 5 are lower than those at the other
alternative sites. Conservative modeling predicted only localized
detectable perturbations following disposal of dredged materials within
the disposal site. Therefore, potential impacts to surface and mid-
water dwelling organisms, such as seabirds, mammals, and midwater
fishes, are expected to be insignificant. Finally, disposal of low-
level radioactive wastes and chemical and conventional munitions
occurred historically in the vicinity of Alternative Site 5. Disposal
within the site has also occurred as part of a Navy MPRSA Section 103
permit approved for up to 1.2 million cubic yards of suitable dredged
material. Therefore, designation of this site also minimizes cumulative
effects compared to the alternative ocean disposal sites.
EPA has determined that Alternative Site 5, identified in the Final
EIS as the preferred site, will be the site designated as SF-DODS in
this Final Rule. This site represents the environmentally preferred
alternative for designation of a deep ocean disposal site for the San
Francisco Bay area. Its selection, along with the specific restrictions
on site use adopted and described in this Final Rule, avoids and
minimizes environmental harm from ocean disposal of suitable dredged
material to the maximum extent practicable. A Record of Decision (ROD)
will not be issued as a separate document; instead this Final Rule
serves as the ROD for designation of the SF-DODS.
C. Regulatory Requirements
Consistency With the Coastal Zone Management Act
EPA prepared a Coastal Consistency Determination (CCD) document
based on the evaluations presented in the Final EIS. The CCD evaluated
whether the proposed action--designation of Alternative Site 5 as
described in the Final EIS as an ocean disposal site for up to 50
years, and with an annual capacity of 6 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 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.
Endangered Species Act Consultation
During the EIS development process, 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 Final 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.
Compliance With Ocean Dumping Criteria
Five general criteria are used in the selection and approval of
ocean disposal sites for continuing use (40 CFR 228.5). First, sites
must be selected to minimize interference with other activities,
particularly avoiding fishery areas or major navigation areas. Second,
sites must be situated such that temporary (during initial mixing)
water quality perturbations caused by disposal operations would be
reduced to normal ambient levels before reaching any beach, shoreline,
sanctuary, or geographically limited fishery area. Third, if site
designation studies show that any interim disposal site does not meet
the site selection criteria, use of such site shall be terminated as
soon as an alternate site can be designated. Fourth, disposal site size
must be limited in order to localize for identification and control any
immediate adverse impacts, and to facilitate effective monitoring for
long-range effects. Fifth, EPA must, wherever feasible, designate ocean
dumping sites beyond the edge of the continental shelf and where
historical disposal has occurred. As described in the Final EIS, SF-
DODS was specifically selected to comply with these general criteria.
The SF-DODS meets these 5 general criteria. First, as discussed
further below in discussing the 11 specific site selection criteria,
the SF-DODS is not a significant fishery area, is not a major
navigation area and otherwise has no geographically limited resource
values that are not abundant in other parts of this coastal region.
Second, as also discussed further below, dredged material deposited at
the site is not expected to reach any significant area such as a marine
sanctuary, beach, or other important natural resource area. Third, the
SF-DODS is not an interim disposal site. Fourth, the site has an
appropriately limited size and has been selected to allow for effective
monitoring. Fifth, the site is beyond the continental shelf and is
located in an area historically used for dumping.
In addition to the 5 general criteria, 11 specific site selection
criteria are listed in 40 CFR 228.6(a) of the EPA Ocean Dumping
Regulations for evaluation of all candidate disposal sites. The 5
general criteria and the 11 specific factors overlap to a great degree.
The SF-DODS site, as discussed below, is also acceptable under each of
the 11 specific criteria.
1. Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast [40 CFR 228.6(a)(1).
The center of the SF-DODS is located approximately 49 nautical
miles (91 kilometers) west of the Golden Gate and occupies an area of
6.5 square nautical miles (22 square kilometers). Water depths within
the area range between 8,200 to 9,840 feet (2,500 to 3,000 meters).
Bathymetric and sediment surveys indicate that the site is located in a
depositional area with natural topographic containment features. The
site's depositional nature and natural topography will minimize the
extent of potential impacts to the benthos, and will facilitate long-
term containment of deposited material as well as site monitoring
activities.
2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or
Passage Areas of Living Resources in Adult or Juvenile Phases [40 CFR
228.6(a)(2)]
The SF-DODS site provides feeding and breeding areas for common
resident benthic species. Floating larvae and eggs of various species
are expected to be found at and near the water surface at the site as
well as the alternative sites evaluated. However, designation of the
site will not affect any geographically limited (i.e., unique)
habitats, breeding sites, or critical areas that are essential to rare
or endangered species. Both in comparison to on-shelf areas and to the
other alternative sites evaluated, the site has the least potential for
adverse impact to commercially important species.
3. Location in Relation to Beaches and Other Amenity Areas [40 CFR
228.6(a)(3)]
The SF-DODS site is approximately 49 nautical miles (91 kilometers)
west of the Golden Gate, 30 nautical miles (56 kilometers) from Pioneer
Canyon, 6 nautical miles (11 kilometers) from the Gulf of the
Farallones National Marine Sanctuary (GFNMS) boundary, and 24 nautical
miles (45 kilometers) from the Farallon Islands. Ocean currents flow
primarily to the northwest in the upper 2,600 to 3,000 feet (800 to 900
meters) of the water column, although periodic reversals in flow occur.
Currents below 3,000 feet (900 meters) are generally weaker than near-
surface currents. Therefore, any residual suspended solids from the SF-
DODS site will move primarily in the north-northwest direction. Water
column modeling results using a conservative approach and assuming
disposal of 6 million cubic yards of dredged sediments per year
indicate that suspended solid levels would decrease to background
levels by the time the plume reaches the nearest amenity area (GFNMS
boundary). Deposition modeling using a conservative approach and
assuming disposal of 6 million cubic yards of dredged sediments per
year indicates that the bulk of the disposed material would be
deposited within the disposal site. For the above reasons, EPA has
determined that aesthetic impacts of plumes, transport of dredged
material to any shoreline, and alteration of any habitat of special
biological significance or marine sanctuary will not occur if this site
is designated.
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)]
EPA is setting an interim site capacity for the SF-DODS of six
million cubic yards of dredged material per calendar year, which shall
be in effect only until December 31, 1996. As the LTMS comprehensive
dredged material management planning effort is completed, EPA will
reexamine the appropriate site capacity for the SF-DODS and will
establish in a separate rulemaking a final capacity. Typical
composition of dredged material disposed at the site is expected to
range between two types: predominantly ``clay-silt'' versus ``mostly
sand''. These material types are based on data from historical projects
from the San Francisco Bay region. The expected disposal method would
involve split-hull barges, with capacities ranging between 1,000 to
6,000 cubic yards, which would be towed by ocean-going tugboats.
Dredged material would not be packaged. All dredged material proposed
for disposal at the site must be suitable for ocean disposal. This
determination will be made by EPA Region IX and the Corps' San
Francisco District based upon the results of physical, chemical and
biological tests before a MPRSA Section 103 permit can be issued.
Dumping of prohibited materials or other industrial or municipal wastes
will not be permitted at the site [40 CFR 227.5 and 227.6(a)].
Existing information and modeling analysis suggests that it is
appropriate to dispose, via split hull barges, of the type of dredged
material that will be removed from San Francisco Bay at the SF-DODS.
The dredged material can be predicted mostly to settle rapidly to the
ocean bottom within the dump site boundaries and not to create plumes
which will reach significant areas such as marine sanctuaries,
recreational areas, or geographically limited habitats at greater than
background concentrations. Disposing dredged material at the site which
meets regulatory criteria for ocean dumping will create some limited
alteration or destruction of benthic habitat within site boundaries,
but should not create substantial adverse impacts extending beyond site
boundaries. For these reasons, no significant adverse impacts are
expected to be associated with the types and quantities of dredged
material that may be disposed at the site.
5. Feasibility of Surveillance and Monitoring [40 CFR 228.6(a)(5)]
EPA Region IX and the Corps' San Francisco District share the
responsibilities of managing and monitoring the disposal site, and,
with the on-site assistance of the U.S. Coast Guard (USCG), to enforce
permit conditions within the limits of their jurisdiction. Although SF-
DODS would be the deepest and farthest off shore of any ocean disposal
site so far designated in the U.S., standardized equipment and
techniques would be used for surveillance and monitoring activities. In
addition, recent Navy mid-project monitoring activities confirmed the
feasibility of surveillance and monitoring at the SF-DODS. EPA has
therefore determined that the Site Management and Monitoring provisions
of the Final Rule are fully feasible to implement.
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)]
Current meter studies indicate that any residual suspended solids
from disposal operations at SF-DODS will move primarily north-
northwest, away from the continental shelf and the GFNMS. Water column
modeling results, as indicated in the Final EIS, using a conservative
approach (e.g., modeling parameters adjusted for worst case conditions)
and assuming disposal of 6 million cubic yards of dredged sediments per
year, indicate that suspended solid would decrease to background levels
by the time the plume reaches the nearest amenity area (GFNMS
boundary). Deposition modeling using a conservative approach and
assuming disposal of 6 million cubic yards of dredged sediments per
year indicate that the bulk of the disposed material would deposit
within the disposal site. For these reasons, EPA has determined that
the dispersal, transport and mixing characteristics of the site, and
its current velocities and directions, are appropriate for its
designation as a dredged material disposal site.
7. Existence and Effects of Current and Previous Discharges and Dumping
in the Area (Including Cumulative Effects) [40 CFR 228.6(a)(7)]
Under an MPRSA Section 103 permit, the Navy is discharging up to
1.2 million cubic yards of dredged material at their Navy disposal site
which is contained within the EPA-preferred Alternative Site 5. No
other documented disposal of dredged material has occurred within the
site. However, disposal of radioactive waste containers was conducted
in the vicinity of Alternative Site 5 from 1951-1954. Likewise,
chemical and conventional munitions were disposed in the general area
from approximately 1958 to the late 1960's at the Chemical Munitions
Disposal Area. Therefore, EPA has determined that potential cumulative
effects of designating a dredged material disposal site are less at SF-
DODS than at the alternative sites evaluated, which did not have these
historic impacts.
In addition, no other discharges occur in the immediate vicinity of
SF-DODS. The effects of municipal discharges from the San Francisco
Southwest Ocean Outfall (5.4 nautical miles or 10.2 kilometers from
shore), the City of Pacifica Outfall (0.4 nautical miles or 0.8
kilometers from shore), and Northern San Mateo County Outfall (0.4
nautical miles or 0.8 kilometers from shore) are limited to local areas
near the outfalls and do not extend to the vicinity of the dredged
material disposal site. Discharge of dredged sand at the Channel Bar
ODMDS (3.0 nautical miles or 5.6 kilometers from shore) is also limited
to that local area and is not expected to result in impacts in the
vicinity of the SF-DODS. Therefore, EPA has determined that cumulative
effects of dredged material disposal are minimized by designation of
SF-DODS.
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 288.6(a)(8)]
In evaluating whether dumping activity at the site could interfere
with shipping, fishing, recreation, mineral extraction, desalination,
areas of scientific importance and other legitimate uses of the ocean,
EPA considered both the direct effects from depositing millions of
cubic yards of dredged material on the ocean bottom within the SF-DODS
boundaries and the indirect effects associated with increased vessel
traffic that will result from transportation of dredged material to the
dump site. Existing information indicates that the site is not a
significant fisheries area, is not used for water contact recreation
and is not otherwise a significant recreational area, contains no
harvestable minerals, is not a potential staging ground or intake area
for desalination activity, is not scientifically important in itself,
and otherwise has no geographically limited resource values that are
not abundant in other parts of this coastal region. Accordingly,
depositing dredged material at the site will not interfere with these
activities.
Increased vessel traffic involved in transportation of dredged
material to the SF-DODS should also cause no substantial interference
with any of the activities discussed above. Even with around-the-clock
disposal operations (assuming 3 trips in a 24-hour period), disposal
operations would augment existing vessel traffic in the region by less
than 2 percent. In addition, the potential interference with
recreational and scientific boat traffic and marine resources (e.g.,
birds and mammals) near the Farallon Islands should be prevented by
requirements that barges remain at least 3 nautical miles from the
Islands.
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)]
Existing information and regional studies described in the Final
EIS provide the following determinations: Water quality at the SF-DODS
is indistinguishable from the water quality of nearby areas. Sediments
contain background levels or low concentrations of trace metal and
organic contaminants. The demersal fish community within Alternative
Site 5 has lower numbers of species and lower abundances than the other
alternative sites. Alternative Site 5 contains moderate numbers of
megafaunal invertebrate species (sea cucumbers, brittlestars, sea pens)
but lower overall abundances compared to the other alternative sites.
Infaunal invertebrates (polychaetes, amphipods, isopods, tanaids)
within Alternative Site 5 also show lower diversity and abundance
compared to Alternative Sites 3 and 4. Although there have been higher
numbers of marine bird and mammal sightings, and mid-water organisms
including juvenile rockfishes are more abundant seasonally relative to
the other alternative sites evaluated, Alternative Site 5 is not
considered to have geographically limited resource values that are not
abundant in other alternative sites or other parts of this coastal
region. Based on these Final EIS conclusions EPA has determined that,
compared to the alternative sites evaluated, this is the
environmentally preferred location for ocean disposal site designation.
10. Potentiality for the Development or Recruitment of Nuisance Species
in the Disposal Site [40 CFR 228.6(a)(10)]
Local opportunistic benthic species characteristic of disturbed
conditions are expected to be present and abundant at any ODMDS in
response to physical deposition of sediments. Opportunistic
polychaetes, such as Capitella, may colonize the disposal site.
However, these worms can become food items for local bottom-feeding
fish and are not directly harmful to other species. No recruitment of
species capable of harming human health or the marine ecosystem is
expected to occur at the site. In addition, recruitment of nuisance
species from within the dredged material disposed at the site is
unlikely, due to significant differences in water depth and environment
at the disposal site as compared to the relatively shallow dredging
sites in the San Francisco Bay region.
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 California State Historic Preservation Officer has determined
there are no known historic shipwrecks nor any known aboriginal
artifacts at the SF-DODS or in the vicinity.
D. Action
EPA Region IX has concluded that the SF-DODS may appropriately be
designated for use over a period of 50 years, with an interim capacity
of 6 million cubic yards of dredged material per calendar year until
December 31, 1996. After this date, site capacity shall be reevaluated
based on the results of comprehensive regional dredged material
management planning underway at the time of this rulemaking, or
independently by EPA if a comprehensive management plan is not yet
completed. No disposal shall occur after December 31, 1996 unless and
until EPA establishes a new site capacity.
Designation of the SF-DODS complies with the general and specific
criteria used for site evaluation. The designation of the SF-DODS as an
EPA-approved Ocean Dumping Site is being published as a final
rulemaking. Management of this site will be the responsibility of the
Regional Administrator of EPA Region IX in cooperation with the Corps'
South Pacific Division Engineer and the San Francisco District
Engineer, based on requirements defined in the Final Rule. Operational
details for carrying out the Rule's required management and monitoring
activities will be contained in a SMMP Implementation Manual prepared
by EPA following the opportunity for public review. Subsequent
revisions of the SMMP Implementation Manual will also be proposed
through separate Public Notices.
It is emphasized that ocean dumping site designation does not
constitute or imply EPA Region IX's or the Corps' San Francisco
District's approval of actual ocean disposal of dredged materials.
Before ocean dumping of dredged material at the site may begin, EPA
Region IX and the Corps' San Francisco District must evaluate permit
applications according to EPA's Ocean Dumping Criteria. EPA Region IX
or the Corps' San Francisco District will deny permits if either agency
determines that the Ocean Dumping Criteria of MPRSA have not been met.
The requirement for compliance with the Ocean Dumping Criteria of the
MPRSA may not be superseded by the provisions of any future
comprehensive regional management plan for dredged material.
E. Regulatory Assessments
Under the Regulatory Flexibility Act, EPA is required to perform a
Regulatory Flexibility Analysis for all Rules which may have a
significant impact on a substantial number of small entities. EPA has
determined that this action will not have a significant impact on small
entities since the site designation will only have the effect of
providing a disposal option for dredged material. Consequently, this
Rule does not necessitate preparation of a Regulatory Flexibility
Analysis.
This action will not result in an annual effect on the economy of
$100 million or more or cause any of the other effects which would
result in its being classified by the Executive Order as a major Rule.
Consequently, this Rule does not necessitate preparation of a
Regulatory Impact Analysis.
F. Responses to Comments on the Site Designation Proposed Rule and
the Proposed SMMP Public Notice
EPA received 37 letters in support of the Proposed Rule and 14
letters critical of the Proposed Rule. Many of these 37 letters
contained specific comments regarding the proposed SMMP. EPA also
received, after the close of the comment period for the site
designation Final EIS, a mass mailing of 105 similar letters containing
some comments relating to site designation. Finally, EPA received 11
additional comment letters in response to the separate proposed SMMP
Public Notice. All these comments have been carefully considered, and
appropriate changes have been made in the Final Rule based on them. The
comments have been grouped into similar categories for the purposes of
preparing the following responses.
1. Site Designation Process
Commentors participating in the mass-mailing were concerned that
EPA was ``fast-tracking'' the designation process for the ocean
disposal site off San Francisco.
Response
EPA has expended considerable effort to ensure adequate
opportunities for public input in the site designation process. This
site designation process is now in its fifth year, as public scoping
meetings began in 1989. The Ocean Studies Plan (OSP), which was the
blueprint for the extensive biological and oceanographic studies that
characterized the study region, was developed with the consensus of the
Long Term Management Strategy (LTMS) Ocean Studies Work Group (OSWG).
The LTMS is comprised of Federal and State agencies, regional
scientific experts, public interest and environmental groups. Based on
the studies performed, EPA evaluated alternative sites and selected the
preferred alternative site with the consensus of the OSWG. The Draft
EIS was then noticed in the Federal Register and issued for public
comment in December, 1992. Following revisions to the EIS based on
comments received, the Final EIS was prepared and noticed in the
Federal Register in September, 1993. A Proposed Rule to designate the
preferred alternative site as described in the Final EIS was noticed in
the Federal Register and issued for public comment on February 17,
1994. In addition, the proposed Site Management and Monitoring Plan
(SMMP) for this ocean disposal site was issued for public comment under
a separate EPA Public Notice on April 20, 1994. The comment period for
this Public Notice ended on June 6, 1994. Therefore, EPA believes that
ample opportunities have been provided for interested parties to
comment throughout the site designation process.
2. Need for Ocean Dumping
Several commentors stated that the proposal to designate the site
for a 50-year period and for up to 300 million cubic yards of dredged
material was not based on an evaluation of the actual need for ocean
disposal based on comprehensive regional planning. Other commentors
stated that it is unlikely that as much as 6 million cubic yards per
year of sediments meeting ocean dumping criteria could be dredged from
the contaminated San Francisco Bay.
Response
The Final Rule has been significantly revised regarding site
capacity. An interim site capacity of 6 million cubic yards per
calendar year is being established from the date of site designation
until December 31, 1996, only. Site capacity following December 31,
1996 will be determined based on either a comprehensive long-term
management strategy for management of dredged materials from San
Francisco Bay (a Long Term Management Strategy draft EIS is currently
under development, and is expected to be issued for public review in
the spring of 1996) or, should a comprehensive Long Term Management
Strategy not be available by that date, on a separate alternatives-
based EPA evaluation of the need for ocean disposal. This new site
capacity will be established via a separate formal rulemaking process.
The volume of sediment assumed in the site designation Final EIS
and Proposed Rule to be dredged from San Francisco Bay over the next 50
years (400 million cubic yards total) represents a planning estimate
provided by the Corps. The actual volumes dredged over the next 50
years cannot be accurately predicted because the overall need for
dredging will depend on many factors, including: Commercial shipping
trends (i.e., continued use of Oakland as a major cargo port);
decisions to initiate port expansions (i.e., for larger deep-draft
vessels); changes in the use of closing military facilities; and
resources available to undertake these projects (i.e., availability of
funds or Congressional authorizations for specific projects). However,
for ocean site evaluation purposes, EPA assumed that 6 million cubic
yards per year (which equates to 80% of the assumed dredging average of
8 million cubic yards per year) would meet EPA Ocean Dumping criteria,
and used this volume for modeling the fate of dredged material disposed
at the alternative ocean disposal sites. The results indicated that
disposal of this volume would not result in significant impacts at the
proposed disposal site; therefore, this site is being designated with
an interim capacity of up to 6 million cubic yards per year. Additional
modelling would be necessary if a greater annual disposal volume were
to be proposed.
No matter the nominal site capacity at any time, it should be noted
that site designation is not a blanket approval for disposal of any
dredged material at the site. The actual need for ocean dumping is
determined on a project-by-project basis at the time of permitting:
Each and every project must be individually reviewed to determine both
its need for ocean disposal and the suitability of its proposed dredged
material for disposal.
3. Alternatives Analysis
Several commentors stated that EPA has failed to consider a range
of alternatives to ocean dumping of dredged material. Other commentors
recommended that the ocean site designation be delayed until other
disposal alternatives can be made available (e.g., via the LTMS
process).
Response
EPA has determined that there is an overall need to designate an
ocean disposal site for the San Francisco Bay region at the present
time, based on the present lack of available upland and beneficial
reuse sites, policies of the state agencies to generally further
restrict disposal at in-Bay sites to maintenance dredging projects,
impending plans for large new-work dredging projects, and limited
existing in-Bay disposal site capacity. However, as discussed above,
the ocean site is now being designated with an interim capacity only,
which will be reevaluated based on the results of comprehensive
management planning efforts now underway.
4. Consistency Wth International Agreements
Several commentors wrote that the ocean disposal site designation
ignores the precautionary approach which the U.S. has adopted in the
context of several international agreements, because the site
designation is unconditional except for a very large annual dumping
limit for the 50-year period. These commentors recommended that there
should be precautionary conditions for site use, including: (1) A waste
audit to evaluate all possible options to reduce the amount of dredged
materials to be dumped at the ocean site and reduce the contamination
of those sediments; (2) implementation of pollution prevention measures
for San Francisco Bay and its drainage basin to guarantee that less
contaminated sediments would be destined for the ocean site in the
future; and (3) specific limitations on the contamination levels in
sediments to be dumped at the site, with progressive reduction in those
levels over 50 years so that the site will eventually only receive
uncontaminated sediments.
Response
The Final Rule has been revised to establish an interim site
capacity only. In addition, even this interim annual dumping limit is
only one of many conditions for site use. As noted above, site
designation is not in itself a permit for ocean disposal of dredged
material. Each project must be reviewed on a case-by-case basis to
determine suitability of the proposed dredged material for ocean
disposal and to determine the need for ocean dumping (including the
availability of alternatives that reduce the amount of dredging).
Alternatives such as beneficial use will be encouraged wherever
practicable. This process of evaluating disposal options already occurs
and will continue during permit reviews. Nevertheless, in addition to
project-by-project alternatives analyses, overall dredged material
management alternatives are being evaluated via the State/Federal LTMS
process on a programmatic basis. The project-by- project need for ocean
disposal will be reduced as alternatives to ocean disposal (including
beneficial re-use sites) become available.
Pollution prevention is an important aspect of sediment management,
as it is for most environmental issues. A variety of federal, state,
and local pollution prevention efforts are underway that should result
in long-term reductions in the degree to which sediments become
contaminated. However, sediments also act as ``sinks'' for contaminants
discharged in the past, and dredging projects by their very nature can
expose this historic contamination. Therefore pollution prevention
efforts in the foreseeable future are not expected to eliminate the
dredging of contaminated sediments. Finally, there is no need to
systematically tighten ocean suitability criteria because existing
criteria do not allow toxic or highly contaminated sediments to be
disposed at the site (suitability criteria are not tied to existing
levels of contamination in area sediments).
5. Compliance Wth Ocean Site Selection Criteria
Two commentors disagreed with EPA's determination that the
regulatory requirements of the MPRSA were fully satisfied by the
proposed site designation, particularly regarding the assessment of
impacts to existing and potential fisheries, fish habitat and marine
sanctuaries.
Response
EPA's determination of insignificant impacts to fisheries used
conservative modelling of the worst case (highly dispersive) disposal
scenarios. The evaluation indicated only localized impacts within the
disposal site boundaries, based on: the highly mobile nature of the
fish species present; the fact that the disposal site has relatively
low abundances of commercially important fish species; and the fact
that the site does not comprise unique fish habitat within the slope
and shelf region.
With respect to impacts to marine sanctuaries, the Final EIS
documented that the expected increase in vessel traffic and resultant
increased chance for accidents (i.e., dredged material spills) during
transportation through the sanctuaries will not be significant.
Nevertheless, specific requirements to minimize any such risks are
incorporated in the Final Rule.
6. Requirement to Implement Site Management and Monitoring
Several commentors were concerned that the Proposed Rule did not
clearly state that implementation of the site management and monitoring
provisions is a strict condition for site use.
Response
EPA intends that full implementation of the SMMP is a strict
requirement of site use, and revisions have been be incorporated into
the Final Rule to emphasize this and remove any ambiguity.
7. Unique Nature of the Disposal Site
Several commentors stated that they were not satisfied that the
SMMP as summarized in the Proposed Rule accounts for risks associated
with a site which is the deepest and farthest from shore of any so far
designated in the U.S., or that there is sufficient information on how
dredged material will behave following disposal at such a deep site.
Response
EPA recognizes that the proposed SF-DODS, as well as the potential
alternative ocean sites evaluated in the Final EIS, is the deepest and
the farthest from shore of any ocean disposal site so far designated in
the U.S. However, EPA has expended considerable effort to adequately
characterize this previously not well-studied region of the California
coast. Studies were conducted in accordance with an Ocean Studies Plan
which was developed with input from Federal and State agencies as well
as environmental and public interest groups. Because of the deep depths
and distance from shore, EPA performed conservative (worst case)
modeling to assess the fate of dredged material disposal at the
alternative sites. The modeling results indicate that the bulk (75 to
90 percent) of the dredged material would be deposited on the seafloor
within the disposal site boundaries, and that residual suspended
material in the water column would be dissipated to background
concentration levels within the disposal site boundaries, as well.
These modeling predictions were confirmed by recent monitoring of
actual dredged material disposal in the vicinity of the SF-DODS by the
U.S. Navy, performed as a requirement of their MPRSA Section 103
project-specific site designation. Preliminary results of their field
studies confirmed that plumes in the water column could be tracked
until they dissipated to background levels, and that the plumes
dissipated to background levels within the disposal site boundaries.
Furthermore, their findings confirmed that the sediment deposit
footprint on the seafloor could be mapped, and that the sediment
deposited within the disposal site boundary as predicted by the
modeling performed for EPA's site designation EIS. Finally, the SMMP
was developed to address the uncertainties and risks associated with
use of this disposal site.
8. Impacts to Nearby Marine Sanctuaries
One commentor stated that past disposal of chemical munitions,
explosives, radioactive materials, sulfuric acid, and oil refinery
waste at the site or nearby locations does not justify designating a
disposal site near federally protected marine sanctuaries such as the
Gulf of the Farallones National Marine Sanctuary and the Monterey Bay
National Marine Sanctuary.
Response
National marine sanctuaries are continuous along the coastline of
the study region. The ocean disposal site is located off the
continental shelf, at the extreme point of the Zone of Siting
Feasibility established by the U.S. Army Corps of Engineers, and
several miles beyond the outer boundary of the nearest sanctuary. It is
therefore as far removed from sanctuary boundaries as practicable.
Furthermore, extensive oceanographic and modelling studies indicate
that suspended sediment plumes should dissipate to background levels
within the disposal site boundaries, and that under prevailing
conditions (currents predominately to the north-northwest) the
probability of any detectable sediment plumes drifting into the marine
sanctuaries is extremely remote. The seafloor in the vicinity of the
site has already been somewhat degraded by historic disposal of
military munitions and other wastes so that, compared to alternative
sites evaluated, cumulative effects to the deep benthos are minimized
at this site. Indeed, there may even be a long-term beneficial effect
within the disposal site as a result of cleaner (ocean suitable)
dredged material being deposited on a previously degraded seafloor.
Finally, designation of this site is consistent with guidance in the
Ocean Dumping Regulations [40 CFR Sec. 228.5(e)] to locate disposal
sites beyond the continental shelf and in areas of historical dumping
where possible.
9. Long Term Impacts
Several commentors noted that the Final EIS stated that significant
long-term impacts at the proposed dump site are likely to occur from
ocean disposal of dredged material.
Response
The Final EIS classified physical impacts to benthos within the
disposal site boundaries as significant (e.g., potential changes in
sediment texture, and some smothering of infauna are unavoidable).
Other significant (e.g., toxicological) impacts are not expected
because of requirements for extensive pre-disposal physical, chemical,
and biological testing of proposed dredged material. In addition,
controls will be implemented through permit conditions and the
provisions of the SMMP to prevent any significant impacts occurring
outside the disposal site boundaries.
10. Exclusion From Testing
One commentor expressed concern that certain materials, based upon
their physical characteristics and their location in relation to
sources of contamination, would be dumped into the ocean without
chemical and biological testing. They also expressed concern that the
person who determines this exclusion not be an employee of the dredging
or dumping company.
Response
The ocean dumping regulations [40 CFR 227.13(b)] set forth
conditions under which dredged material may be determined to be
suitable for ocean disposal without chemical and biological testing
(``exclusion criteria''). The determination of exclusion from testing
is made by EPA and the Army Corps of Engineers in accordance with these
criteria, and not by the dredging company or the permit applicant.
11. Need for Mitigation for Disposal Site Use
One commentor estimated, based on a draft Habitat Evaluation
Procedure (HEP) analysis, that at least 60 acres of habitat would be
needed to replace habitat value losses at the 6.5 square nautical mile
ocean disposal site, and stated that EPA should consider including
compensatory mitigation as a component of the site designation and
monitoring process.
Response
The commentor's draft analysis is based in part on a
misunderstanding of the site designation EIS, and incorrectly assumes
that significant impacts will occur well beyond the boundaries of the
disposal site. EPA does not share the commentor's conclusion that
compensatory mitigation is needed for use of the ocean disposal site in
part because: (1) The site location has been selected specifically to
minimize any off-site impacts due to disposal of dredged material, as
documented in the Final EIS; (2) only suitable non-toxic sediments may
be disposed at the site, in accordance with EPA's Ocean Dumping
Criteria; (3) unlike upland or wetland ``fills,'' disposed sediments
will not alter the site's basic habitat type (e.g., disposal of
suitable dredged material at the site is not the same as permanently
changing a wetland into an upland, or a seasonal wetland into a tidal
wetland); and (4) ongoing site monitoring, and management actions as
necessary, will ensure that no significant off-site adverse impacts
will occur or persist during the 50-year period of site use.
12. Sea Surface Microlayer
Several commentors stated that EPA has ignored concerns raised
about contamination of the sea surface microlayer as a result of
dredged material disposal at the site, and has missed opportunities to
resolve this issue through field studies.
Response
EPA has fully considered comments regarding potential contamination
of the sea surface microlayer. In addition, EPA consulted with the LTMS
technical review panel (see listing in Table 5.2-1 of the Final EIS) on
this issue. Based on the available information regarding the sea
surface microlayer, EPA has determined that the potential for
significant contamination of or impacts to the sea surface microlayer
as a result of disposal site use is not significant. The specific
characteristics of this deep ocean disposal site (including its
location in a turbulent open ocean environment approximately 50 miles
offshore), and the characteristics of the dredged material that is
expected to be disposed there (suitability for ocean disposal
established by extensive physical, chemical, and biological testing),
support this conclusion. The LTMS technical review panel view was
consistent with EPA's determination. Consequently, monitoring of the
sea surface microlayer is not included in the SMMP at this time.
However, EPA does not discourage independent sampling in the vicinity
or submission of any data collected in or near the site.
13. Discussion of ``Alternative Site 2''
One commentor recommended that EPA emphasize that significant
commercial fish abundances and fish habitats exist in this area which
would have precluded designation of a site in this area, even if the
Monterey Bay National Marine Sanctuary did not exist.
Response
The site designation Final EIS describes the greater importance of
the continental shelf, including Study Area 2, for commercially
important fish species relative to SF-DODS and the other off-shelf
alternative sites. The Final EIS also notes that since Study Area 2 is
within the boundaries of the Monterey Bay National Marine Sanctuary, it
would not comply with EPA's site designation criteria and therefore
could not be designated.
14. Inclusion of SMMP in the Site Designation Rule
Several commentors recommended that the entire SMMP be included as
part of the regulation designating the site.
Response
The Final Rule has been revised to include specific provisions
governing site monitoring and site management. These provisions
establish the legal basis for requiring site monitoring and site
management and establish the basic criteria for adequate site
monitoring and management measures. These provisions further establish
the basic criteria for using site monitoring data to make adjustments
to site management or site use. The provisions of the Final Rule are
sufficient, in EPA's view, to create environmentally appropriate and
legally enforceable site monitoring and site management regimes.
On April 20, 1994, EPA published a Public Notice in the Federal
Register indicating the availability of a proposed SF-DODS Site
Monitoring and Management Plan (``SMMP'') and soliciting public comment
on the SMMP. As noted above, EPA has now incorporated the major aspects
of the proposed SMMP directly into the Rule. In addition, EPA will
publish the ``SMMP Implementation Manual'' based upon the SMMP. The
SMMP Implementation Manual will provide operational details concerning
site monitoring and management measures that are not necessary or
appropriate for inclusion in EPA's Final Rule designating the SF-DODS
(also see response to comment number 25, below). The SMMP
Implementation Manual will serve to document EPA's interpretation of
the specific measures that are appropriate for implementing the
provisions required in the Final Rule. EPA intends to notify the public
and solicit public comments if any future changes are made to the SMMP
Implementation Manual.
15. Feasibility and Validity of the Site Monitoring
Several commentors wrote that the details of the SMMP should be
known before the Final Rule is issued in order to assess its scientific
validity and the feasibility of surveillance and monitoring.
Response
In the Public Notice accompanying the Proposed Rule designating the
SF-DODS, EPA discussed the broad outlines of site surveillance and
monitoring envisioned by EPA. EPA subsequently supplemented this step
by making available for public review and comment the proposed SMMP
(see response above), and by incorporating many specific site
management and monitoring requirements into the Final Rule itself as
requested by several commentors. In EPA's view, the public has had
ample opportunity to comment upon the scientific validity and the
feasibility of EPA's proposed site surveillance and monitoring
measures, and as a result these measures have been strengthened.
In EPA's view, the surveillance and monitoring measures that EPA
will require for the SF-DODS are feasible and will provide the
necessary scrutiny of site use for a full evaluation of the potential
for adverse environmental impacts. The monitoring and surveillance
measures for the SF-DODS are based upon successful measures taken at
other designated disposal sites in Region 9 and other parts of the
United States, including those required by EPA to be implemented by the
U.S. Navy on a project involving the disposal of dredged sediments at a
temporary dump site in the vicinity of the SF-DODS. The monitoring
measures for the SF-DODS were further developed with the benefit of
conservative (environmentally protective) modeling of post-disposal
dispersion of dredged sediments at the site. This modeling, discussed
in the Final EIS, has been demonstrated at other ocean disposal sites
to have a high degree of accuracy in predicting dispersion of dumped
sediments.
16. Management Action Trigger Levels and Significance Criteria
Several commentors stated that the trigger levels or criteria for
determining when site use can be modified or terminated were
inappropriate or too vague in the site designation Proposed Rule, and
appear to limit EPA's ability to take action to restrict ocean dumping
until significant adverse impacts have already occurred.
Response
EPA's authority to protect marine resources in the vicinity of a
disposal site is described in the Ocean Dumping regulations at 40 CFR
220.4, 228.3, 228.7, 228.8, 228.9, 228.10, and 228.11. EPA can require
that site use be modified or terminated based on several factors,
including: (1) exceedance of Federal water quality criteria after
disposal within the site or beyond the SF-DODS boundary; (2)
significant movement of disposed material toward important biological
resource areas or marine sanctuaries; (3) significant adverse changes
in the structure of the benthic community outside the disposal site
boundary; (4) significant adverse bioaccumulation in organisms
collected from the disposal site or areas adjacent to the site
boundary, compared to the reference site; and (5) significant adverse
impacts upon commercial or recreational fisheries resources near the
site. EPA can take action based on these criteria at any time; the site
designation Rule in no way restricts EPA's authorities in this regard.
In addition to these existing authorities, the Final Rule now
includes additional authority for determining management actions, such
as site use modifications or even site use termination, as warranted by
site monitoring results. For example, clarifications have been made to
how sediment chemistry monitoring results would ``trigger'' management
actions.
With respect to EPA taking actions before significant adverse
impacts have occurred, monitoring data will be collected periodically
(i.e., there will be annual sampling of monitoring stations) and any
corrective management action taken following an annual review of
monitoring data could therefore occur after some impacts have already
occurred. However, because of extensive physical, chemical, and
biological testing of the sediments proposed for ocean disposal,
potential adverse impacts, if any, are expected to be physical in
nature (i.e., sediment textural changes and smothering of some infauna)
and confined within the boundaries of the disposal site. Furthermore,
if warranted by onboard observations (i.e., direct observations of
significant disturbance of marine birds and mammals near disposal
operations) more immediate action can be taken.
17. Frequency of Monitoring
One commentor wrote that the proposed frequency of monitoring
(after a period of one year or after 6 million cubic yards have been
dumped), is not adequate and that monitoring should be more frequent to
determine seasonal differences in the plume and sediment footprint.
Response
EPA's conservative modeling of the fate of dredged material
disposed at the alternative sites utilized current meter data from a
full year's deployment. Seasonal variability of oceanographic
conditions is therefore generally known, and was considered in the site
designation Final EIS and in development of the SMMP. The existing
seasonal data, together with the monitoring requirements of the Final
Rule, are adequate to address seasonal variation in oceanographic
conditions.
18. Need for Periodic Review
Several commentors objected to the designation of the site for a
full 50 years without any stringent requirement for periodic review.
Response
The Final Rule now more clearly states that there will be periodic
review of monitoring data to determine if the site is performing as
predicted (i.e., no significant adverse impacts outside of the disposal
site boundaries), if site modifications are necessary, or if site use
should be terminated. Necessary changes in site management can be made
based on any of these reviews. Site monitoring will be a strict
requirement of site use. If site monitoring is not implemented,
disposal of dredged material will be prohibited at the ocean site.
19. Baseline Data
Several commentors wrote that the proposed SMMP, as summarized in
the Proposed Rule, is flawed because of inadequate baseline data. These
commentors urged a rigorous monitoring program during the first year of
dumping in order to develop a more scientifically sound baseline for
the site.
Response
Although the site designation studies were broad in geographic
scope, the data collected in these studies serve as an appropriate
baseline given the variability of biological parameters which is
typical of this oceanic area. The region, overall, is significantly
affected by many factors, including: interannual changes in regional
climate; climate-induced variability in abundance and spatial
distribution of biological populations, and human-induced impacts such
as heavy vessel traffic and substantial commercial and recreational
fishing. A focussed, localized one-year study of the site itself
ignores the temporal and spatial complexity of the area, and would not
produce a meaningful ``baseline'' for the site.
20. Preliminary Drafts of the Proposed SMMP
One commentor stated that the Proposed Rule does not reflect
comments received by the agency on various preliminary drafts of the
SMMP.
Response
As indicated above, on April 20, 1994, EPA issued a Public Notice
soliciting comment on its proposed SMMP which set forth proposed
monitoring and management measures for the SF-DODS. In addition, the
Public Notice accompanying the Proposed Rule designating the SF-DODS
broadly outlined EPA's proposed site monitoring and management measures
for the SF-DODS. The provisions in the Final Rule setting forth site
monitoring and management requirements for the SF-DODS now being
promulgated by EPA reflect the public comments received in response to
these two Public Notices, as well as all other comments EPA previously
received concerning preliminary drafts of the SMMP.
21. Enforceability of the Proposed SMMP
One commentor stated that both permit conditions and the site
management and monitoring provisions themselves must be enforceable not
only by EPA, but by members of the public with standing to represent
the marine resources at risk.
Response
As indicated above, the Final Rule has been revised to include
specific provisions governing site monitoring and site management.
These provisions establish the legal basis for requiring site
monitoring and site management and establish the basic criteria for
adequate site monitoring and management measures. These provisions will
be enforceable by EPA as well as by citizens who meet the requirements
for filing suit under MPRSA section 105(g), 33 U.S.C. 1415(g).
22. Performance of Site Monitoring Field Work
Some commentors were concerned that reliable information may not be
collected if site monitoring field work could be conducted by the
permittee or, for federal projects, by the Corps of Engineers. These
commentors recommended that all site monitoring work be conducted by
EPA and/or by independent third parties.
Response
The Final Rule has been revised to clarify that monitoring
information required to be submitted by permittees must be collected
and/or certified as being accurate by independent Quality Control
contractors, who are not employees of the permittee. However, the Corps
of Engineers shares site management and enforcement authority with EPA
and, for disposal operations conducted by or for the Corps of
Engineers, the Corps of Engineers may directly collect and submit the
required information. EPA and the Corps of Engineers retain the
authority to independently monitor, and conduct surveillance and
enforcement operations on, all permitted disposal operations at the
site. In addition, EPA may independently monitor Corps of Engineers
disposal operations.
23. Relevance of Navy Monitoring Data
One commentor recommended that the U.S. Navy mid-point monitoring
data should not be used or cited because a final report has not yet
been received on this monitoring.
Response
References to the Navy mid-point monitoring have been retained,
since this work entails the only monitoring of actual dredged material
disposal to date in the vicinity of the SF-DODS. Given concerns
expressed in public comments about the actual (versus modeled) behavior
of disposed dredged material at what will be the deepest ocean disposal
site so far designated in the U.S., EPA believes that the information
is very relevant. Although the Navy's final monitoring report has not
yet been received, the results contained in the preliminary reports
reviewed by EPA are adequate to reach basic conclusions about site
performance regarding plume behavior and deposition of dredged material
on the bottom.
24. Corps of Engineers Site Designation Authority
One commentor requested that the Final Rule include more specific
and accurate language regarding the responsibilities of the Army Corps
of Engineers in issuing permits for dredging projects and managing the
disposal site, and questioned whether the prohibition on site use (if
the site management and monitoring provisions are not implemented)
affects the Army Corps of Engineers' independent authority to designate
temporary (project-specific) disposal sites under Section 103 of the
MPRSA.
Response
Nothing in the Rule affects the independent authorities of other
agencies. The Corps' authority to issue permits for ocean disposal is
fully described in 40 CFR part 225. Also, under Section 103 of the
MPRSA, the Army Corps of Engineers may designate temporary, project-
specific ocean disposal sites if an EPA-designated (Section 102) ocean
disposal site is unavailable. If, due to a lack of funding to implement
the site management and monitoring provisions required in the Final
Rule, EPA's SF-DODS site were technically ``unavailable'' for use, the
Army Corps of Engineers could propose to designate a temporary site.
However, under these circumstances, it is likely that the SF-DODS site
itself is the only location that could be justified or designated for
temporary use, since EPA's Final EIS identified it as the best overall
location for disposal. Proposed use of any other location would likely
require the collection of substantial supplemental data, and could
result in greater cumulative impacts than continued use of SF-DODS. It
is EPA's position that responsibility to implement all monitoring
requirements for use of a temporary Corps-designated site would rest
with the Corps, and that temporary designation of the SF-DODS site by
the Corps would require them to fully implement the site's existing
monitoring requirements.
25. Detailed Comments on the Proposed SMMP
Several comments were received regarding specific details of the
proposed SMMP as summarized in the site designation Proposed Rule.
These included comments regarding methods for monitoring impacts to
particular marine resources, and specific methods (including specific
instrumentation) for tracking the dispersal and migration of sediments
suspended in the water column.
Response
The SMMP included in the Final Rule incorporates overall
requirements for site monitoring and management. However, all the
operational details for achieving the SMMP requirements are not
included in the Rule itself. This is because there are in many cases
more than one methodology or technology that could be used to achieve
the SMMP goals. It would be unreasonable to require more specific
methodologies in the Rule itself, since the ability to select alternate
approaches that may be more effective or efficient would be restricted
by the requirement to first go through formal rulemaking. EPA believes
that the degree of specificity in the SMMP is appropriate for the Final
Rule. In addition, particular technologies and methodologies to be used
at any time will be specified in the separate SMMP Implementation
Manual, which will be subject to ongoing public review (also see
response to comment number 14, above).
List of Subjects in 40 CFR Part 228
Environmental protection, Water Pollution Control.
Dated: July 15, 1994.
Nora L. McGee,
Acting Regional Administrator, EPA Region IX.
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. Sections 1412 and 1418.
2. Section 228.12 is amended by adding paragraph (b)(70) to read as
follows:
Sec. 228.12 Delegation of management authority for ocean dumping
sites.
* * * * *
(b) * * *
(70) San Francisco Deepwater Ocean Site (SF-DODS) Ocean Dredged
Material Disposal Site--Region IX.
Location: Center coordinates of the oval-shaped site are: 37 deg.
39.0' North latitude by 123 deg. 29.0' West longitude (North American
Datum from 1983), with length (north-south axis) and width (west-east
axis) dimensions of approximately 4 nautical miles (7.5 kilometers) and
2.5 nautical miles (4.5 kilometers), respectively.
Size: 6.5 square nautical miles (22 square kilometers).
Depth: 8,200 to 9,840 feet (2,500 to 3,000 meters).
Use Restricted to Disposal of: Dredged materials.
Period of Use: Continuing use over 50 years from date of site
designation, subject to restrictions and provisions set forth below.
Restrictions/Provisions: The remainder of this Rule constitutes the
required Site Management and Monitoring Plan (SMMP) for the SF-DODS.
This SMMP shall be supplemented by a Site Management and Monitoring
Plan Implementation Manual (SMMP Implementation Manual) containing more
detailed operational guidance. The SMMP Implementation Manual may be
periodically revised as necessary; proposed revisions to the SMMP
Implementation Manual shall be made following opportunity for public
review and comment. SF-DODS use shall be subject to the following
restrictions and provisions:
(i) Type and capacity of disposed materials. The interim site
disposal capacity shall be 6 million cubic yards of suitable dredged
material per year until December 31, 1996. Thereafter, the capacity of
the SF-DODS shall be set in a separate rulemaking based on either a
comprehensive long-term management strategy for management of dredged
materials from San Francisco Bay (reflected in an EPA-prepared dredged
material management planning document) or a separate alternatives-
based EPA evaluation of the need for ocean disposal. This separate
rulemaking will identify the appropriate site capacity for the
remaining life of this site designation. No disposal at the SF-DODS may
occur after December 31, 1996 without subsequent promulgation by Rule
of appropriate annual site disposal capacity.
(ii) Permit/project conditions. Paragraph (b)(70)(ii)(A) of this
section sets forth requirements for inclusion in permits to use the SF-
DODS, and in all Army Corps of Engineers federal project
authorizations. Paragraph (b)(70)(ii)(B) of this section describes
additional project-specific conditions that will be required of
disposal permits and operations as appropriate. Paragraph
(b)(70)(ii)(C) of this section describes how alternative permit
conditions may be authorized by EPA and the Corps of Engineers. All
references to ``permittees'' shall be deemed to include the Army Corps
of Engineers when implementing a federal dredging project.
(A) Mandatory Conditions. All permits or federal project
authorizations authorizing use of the SF-DODS shall include the
following conditions, unless approval for an alternative permit
condition is sought and granted pursuant to paragraph (b)(70)(ii)(C) of
this section:
(1) Transportation of dredged material to the SF-DODS shall only be
allowed when weather and sea state conditions will not interfere with
safe transportation and will not create risk of spillage, leak or other
loss of dredged material in transit to the SF-DODS. No disposal vessel
trips shall be initiated when the National Weather Service has
predicted combined seas in excess of eighteen feet or has issued a gale
warning for local waters during the time period necessary for the
disposal vessel to complete dumping operations.
(2) All vessels used for dredged material transportation and
disposal must be load-lined at a level at which dredged material is not
expected to be spilled in transit under anticipated sea state
conditions. Disposal vessels shall not be filled above their load
limitations. Before any disposal vessel departs for the SF-DODS, an
independent quality control inspector must certify that it is filled
correctly. For purposes of paragraph (b)(70)(ii) of this section,
``independent'' means not an employee of the permittee; however, the
Corps of Engineers may provide inspectors for Corps of Engineers
disposal operations.
(3) Dredged material shall not be leaked or spilled from disposal
vessels during transit to the SF-DODS.
(4) Disposal vessels in transit to and from the SF-DODS shall
remain at least three nautical miles from the Farallon Islands at all
times.
(5) When dredged material is discharged within the SF-DODS, no
portion of the vessel from which materials are released (for example, a
hopper dredge vessel or a towed barge) can be further than 3,200 feet
from the center of the target area, centered at 37 deg.39'N,
123 deg.29'W.
(6) No more than one disposal vessel may be present within the
permissible dumping target area referred to in paragraph
(b)(70)(ii)(A)(5) of this section at any time.
(7) Disposal vessels shall use an appropriate navigation system
capable of indicating the position of the vessel carrying dredged
material (for example, a hopper dredge vessel or a towed barge) with a
minimum accuracy and precision of 100 feet during all disposal
operations. If the positioning system fails, all disposal operations
must cease until the navigational capabilities are restored.
(8) The permittee shall maintain daily records of the amount of
material dredged and loaded into barges for disposal, the times that
disposal vessel depart for, arrive at and return from the SF-DODS, the
exact locations and times of disposal, and the volumes of material
disposed at the SF-DODS during each vessel trip. The permittee shall
further record wind and sea state observations at intervals to be
established in the permit.
(9) For each disposal vessel trip, the permittee shall maintain a
computer printout from a Global Positioning System or other acceptable
navigation system showing transit routes and disposal coordinates,
including the time and position of the disposal vessel when dumping was
commenced and completed.
(10) An independent quality control inspector (as defined in
paragraph (b)(70)(ii)(A)(2) of this section) shall observe all dredging
and disposal operations. The inspector shall verify the information
required in paragraphs (b)(70)(ii)(A)(8) of this section and (9). The
inspector shall promptly inform permittees of any inaccuracies or
discrepancies concerning this information and shall prepare summary
reports, which summarize all such inaccuracies and discrepancies, from
time to time as shall be specified in permits. Such summary reports
shall be sent by the permittee to the District Engineer and the
Regional Administrator within a time interval that shall be specified
in the permit.
(11) The permittee shall report any anticipated or actual permit
violations to the District Engineer and the Regional Administrator
within 24 hours of discovering such violations. In addition, the
permittee shall prepare and submit reports, certified accurate by the
independent quality control inspector, on a frequency that shall be
specified in permits, to the District Engineer and the Regional
Administrator setting forth the information required by paragraphs
(b)(70)(ii)(A)(8) and (9).
(12) Permittees shall allow observers from the Point Reyes Bird
Observatory or other appropriate independent observers as specified in
permits to be present on disposal vessels on all trips to the SF-DODS
for the purpose of conducting shipboard surveys of seabirds and marine
mammals. In addition, permittees shall ensure that independent
observers are present on a sufficient number of vessel trips to
characterize fully the potential impact of disposal site use on
seabirds and marine mammals, taking into account, to the extent
feasible, seasonal variations in such potential impacts. At a minimum,
permittees shall ensure that independent observers are present on at
least one disposal trip in any calendar month in which a disposal trip
to the SF-DODS is made.
(13) At the completion of short-term dredging projects or annually
for on-going projects, permittees shall prepare and submit to the
District Engineer and the Regional Administrator complete pre-dredging
and post-dredging bathymetric surveys showing the depth of all areas
dredged, including side slope areas, before and after dredging.
Permittees shall include a report indicating whether any dredged
material was dredged outside of areas authorized for dredging or was
dredged within project boundaries at depths deeper than authorized for
dredging by their permits.
(B) Project-specific conditions. Permits or federal project
authorizations authorizing use of the SF-DODS may include the following
conditions, if EPA determines these conditions are necessary to
facilitate safe use of the SF-DODS, the prevention of potential harm to
the environment or accurate monitoring of site use:
(1) Permittees may be required to limit the speed of disposal
vessels in transit to the SF-DODS to a rate that is safe under the
circumstances and will prevent the spillage of dredged materials.
(2) Permittees may be required to use automated data logging
systems for recording navigation and disposal coordinates and/or load
levels throughout disposal trips when such systems are feasible and
represent an improvement over manual recording methodologies.
(3) Any other conditions that EPA or the Corps of Engineers
determine to be necessary or appropriate to facilitate compliance with
the requirements of the MPRSA and this Rule may be included in site use
permits.
(C) Alternative permit/project conditions. Alternatives to the
permit conditions specified in paragraph (b)(70)(ii) of this section in
a permit or federal project authorization may be authorized if the
permittee demonstrates to the District Engineer and the Regional
Administrator that the alternative conditions are sufficient to
accomplish the specific intended purpose of the permit condition in
issue and further demonstrates that the waiver will not increase the
risk of harm to the environment, the health or safety of persons, nor
will impede monitoring of compliance with the MPRSA, regulations
promulgated under the MPRSA, or any permit issued under the MPRSA.
(iii) Site monitoring. Data shall be collected in accordance with a
three-tiered site monitoring program which consists of three
interdependent types of monitoring for each tier: physical, chemical
and biological. In addition, periodic confirmatory monitoring
concerning potential site contamination shall be performed.
Specific guidance for site monitoring tasks required by this
paragraph shall be described in a Site Management and Monitoring
Implementation Manual (SMMP Implementation Manual) developed by EPA.
The SMMP Implementation Manual shall be reviewed periodically and any
necessary revisions to the Manual will be issued for public review
under an EPA Public Notice.
(A) Tier 1 monitoring activities. Tier 1 monitoring activities
shall consist of the following:
(1) Physical monitoring. Tier 1 Physical Monitoring shall consist
of a physical survey to map the area on the seafloor within and in the
vicinity of the disposal site where dredged material has been deposited
(the footprint). Such a survey shall use appropriate technology (for
example, sediment profile photography) to determine the areal extent
and thickness of the disposed dredged material, and to determine if any
dredged material has deposited outside of the disposal site boundary.
(2) Chemical monitoring. Tier 1 Chemical Monitoring shall consist
of collecting, processing, and preserving boxscore samples of sediments
so that such sediments could be subjected to sediment chemistry
analysis in the appropriate tier. Samples shall be collected within the
dredged material footprint, outside of the dredged material footprint,
and outside of the disposal site boundaries. Samples within the
footprint shall be subjected to chemical analysis in annual Tier 1
activity. Samples from outside of the footprint and outside of the
disposal site boundaries shall be archived and analyzed only when the
criteria requiring Tier 2 as specified in paragraph (b)(70)(iv) are
met. A sufficient number of samples shall be collected so that the
potential for adverse impacts due to elevated chemistry can be assessed
with an appropriate time-series or ordinal technique.
(3) Biological monitoring. Tier 1 Biological Monitoring shall have
two components: monitoring of pelagic communities and monitoring of
benthic communities.
(i) Pelagic communities. Tier 1 Biological Monitoring shall include
regional surveys of seabirds, marine mammals and mid water column fish
populations appropriate for evaluating how these populations might be
affected by disposal site use. A combination of annual regional and
periodic (random) shipboard surveys of seabirds and marine mammals will
be used. The regional survey designs for each category of biota shall
be similar to that used for the regional characterization studies
referenced in the Final Environmental Impact Statement for Designation
of a Deep Water Ocean Dredged Material Disposal Site off San Francisco,
California (August 1993) with appropriate realignments to accommodate
transects within and in the vicinity of the SF-DODS. The periodic
shipboard surveys shall be performed from vessels involved in dredged
material disposal operations at the SF-DODS as specified in permit
conditions imposed pursuant to paragraph (b)(70)(ii)(A)(12). The
minimum number of surveys must be sufficient to characterize the
disposal operations for each project, and, as practicable, provide
seasonal data for an assessment of the potential for adverse impacts
for the one-year period. An appropriate time-series (ordinal) and
community analysis shall be performed using data collected during the
current year and previous years.
(ii) Benthic communities. Tier 1 Biological Monitoring shall
include collection and preservation of boxscore samples of benthic
communities so that such samples could be analyzed as a Tier 2
activity.
(4) Annual reporting. The results of the annual Tier 1 studies
shall be compiled in an annual report which will be available for
public review.
(B) Tier 2 monitoring activities. Tier 2 monitoring activities
shall consist of the following:
(1) Physical monitoring. Tier 2 Physical Monitoring shall consist
of oceanographic studies conducted to validate and/or improve the
models used to predict the dispersion in the water column and
deposition of dredged material on the seafloor at the SF-DODS. The
appropriate physical oceanographic studies may include: the collection
of additional current meter data, deployment of sediment traps, and
deployment of surface and subsurface drifters.
(2) Chemical monitoring. Tier 2 Chemical Monitoring shall consist
of performing sediment chemistry analysis on samples collected and
preserved in Tier 1 from outside of the footprint and outside of the
disposal site boundaries.
(3) Biological monitoring. Tier 2 Biological Monitoring shall
involve monitoring of pelagic communities and monitoring of benthic
communities.
(i) Pelagic communities. Tier 2 Biological Monitoring for pelagic
communities shall include supplemental surveys of similar type to those
in Tier 1, or other surveys as appropriate.
(ii) Benthic communities. Tier 2 Biological Monitoring for benthic
communities shall include a comparison of the benthic community within
the dredged material footprint to benthic communities in adjacent areas
outside of the dredged material footprint. An appropriate time-series
(ordinal) and community analysis shall be performed using data
collected during the current year and previous years to determine
whether there are adverse changes in the benthic populations outside of
the disposal site which may endanger the marine environment.
(4) Annual reporting. The results of any required Tier 2 studies
shall be compiled in an annual report which will be available for
public review.
(C) Tier 3 monitoring activities. Tier 3 monitoring activities
shall consist of the following:
(1) Physical monitoring. Tier 3 physical monitoring shall consist
of advanced oceanographic studies to study the dispersion of dredged
material in the water column and the deposition of dredged material on
the seafloor in the vicinity of the SF-DODS. Such physical monitoring
may include additional, intensified studies involving the collection of
additional current meter data, deployment of sediment traps, and
deployment of surface and subsurface drifters. Such studies may include
additional sampling stations, greater frequency of sampling, more
advanced sampling methodologies or equipment, or other additional
increased study measures compared to similar studies conducted in Tiers
1 or 2.
(2) Chemical monitoring. Tier 3 Chemical Monitoring shall consist
of analysis of tissues of appropriate field-collected benthic and/or
epifaunal organisms to determine bioaccumulation of contaminants that
may be associated with dredged materials deposited at the SF-DODS.
Sampling and analysis shall be designed and implemented to determine
whether the SF-DODS is a source of adverse bioaccumulation in the
tissues of benthic species collected at or outside the SF-DODS,
compared to adjacent unimpacted areas, which may endanger the marine
environment. Appropriate sampling methodologies for these tests will be
determined and the appropriate analyses will involve the assessment of
benthic body burdens of contaminants and correlation with comparison of
the benthic communities inside and outside of the sediment footprint.
(3) Biological monitoring. Tier 3 biological monitoring shall have
two components: Monitoring of pelagic communities and monitoring of
benthic communities.
(i) Pelagic communities. Tier 3 Biological Monitoring shall include
advanced studies of seabirds, marine mammals and mid water column fish
to evaluate how these populations might be affected by disposal site
use. Such studies may include additional sampling stations, greater
frequency of sampling, more advanced sampling methodologies or
equipment, or other additional increased study measures compared to
similar studies conducted in Tiers 1 or 2. Studies may include
evaluation of sub-lethal changes in the health of pelagic organisms,
such as the development of lesions, tumors, developmental abnormality,
decreased fecundity or other adverse sub-lethal effect.
(ii) Benthic communities. Tier 3 Biological Monitoring shall
include advanced studies of benthic communities to evaluate how these
populations might be affected by disposal site use. Such studies may
include additional sampling stations, greater frequency of sampling,
more advanced sampling methodologies or equipment, or other additional
increased study measures compared to similar studies conducted in Tier
2. Studies may include evaluation of sub-lethal changes in the health
of benthic organisms, such as the development of lesions, tumors,
developmental abnormality, decreased fecundity or other adverse sub-
lethal effect.
(4) Reporting. The results of any required Tier 3 studies shall be
compiled in a report which will be available for public review.
(D) Periodic confirmatory monitoring. At least once every three
years, the following confirmatory monitoring activities will be
conducted and results compiled in a report which will be available for
public review: Samples of sediments taken from the dredged material
footprint shall be subjected to bioassay testing using one or more
appropriate sensitive marine species consistent with applicable ocean
disposal testing guidance (``Green Book'' or related Regional
Implementation Agreements), as determined by the Regional
Administrator, to confirm whether contaminated sediments are being
deposited at the SF-DODS despite extensive pre-disposal testing. In
addition, near-surface arrays of appropriate filter-feeding organisms
(such as mussels) shall be deployed in at least three locations in and
around the disposal site for at least one month during active site use,
to confirm whether substantial bioaccumulation of contaminants may be
associated with exposure to suspended sediment plumes from multiple
disposal events. One array must be deployed outside the influence of
any expected plumes to serve as a baseline reference.
(iv) Site management actions. Once disposal operations at the site
begin, the three-tier monitoring program described in paragraphs
(b)(70)(iii) (A) through (C) of this section shall be implemented on an
annual basis, through December 31, 1996, independent of the actual
volumes disposed at the site. Thereafter, the Regional Administrator
may establish a minimum annual disposal volume (not to exceed 10
percent of the designated site capacity at any time) below which this
monitoring program need not be fully implemented. The Regional
Administrator shall promptly review monitoring reports for the SF-DODS
along with any other information available to the Regional
Administrator concerning site monitoring activities. If the information
gathered from monitoring at a given monitoring tier is not sufficient
for the Regional Administrator to base reasonable conclusions as to
whether disposal at the SF-DODS might be endangering the marine
ecosystem, then the Regional Administrator shall require intensified
monitoring at a higher tier. If monitoring at a given tier establishes
that disposal at the SF-DODS is endangering the marine ecosystem, then
the Regional Administrator shall require modification, suspension or
termination of site use.
(A) Selection of site monitoring tiers.
(1) Physical monitoring. Physical monitoring shall remain limited
to Tier 1 monitoring when Tier 1 monitoring establishes that no
significant amount of dredged material has been deposited or
transported outside of the site boundaries. Tier 2 monitoring shall be
employed when Tier 1 monitoring is insufficient to conclude that a
significant amount of dredged material as defined in paragraph
(b)(70)(iv)(A)(4) of this section has not been deposited or transported
outside of the site boundaries.
(2) Chemical monitoring. (i) Chemical monitoring shall remain
limited to Tier 1 Chemical Monitoring when the results of Physical
Monitoring indicate that a significant amount of dredged material as
defined in paragraph (b)(70)(iv)(A)(4) of this section has not been
deposited or transported off-site, and Tier 1 Chemical Monitoring
establishes that dredged sediments deposited at the disposal site do
not contain levels of chemical contaminants that are significantly
elevated above the range of chemical contaminant levels in dredged
sediments that the Regional Administrator and the District Engineer
found to be suitable for disposal at the SF-DODS pursuant to 40 CFR
part 227.
(ii) Tier 2 monitoring shall be employed when the results of
Physical Monitoring indicate that a significant amount of dredged
material as defined in paragraph (b)(70)(iv)(A)(4) of this section has
been deposited off-site, and Tier 1 Chemical Monitoring is insufficient
to establish that dredged sediments deposited at the disposal site do
not contain levels of chemical contaminants that are significantly
elevated above the range of chemical contaminant levels in dredged
sediments that the Regional Administrator and the District Engineer
found to be suitable for disposal at the SF-DODS pursuant to 40 CFR
part 227. The Regional Administrator may employ Tier 2 monitoring when
available evidence indicates that a significant amount of dredged
material as defined in paragraph (b)(70)(iv)(A)(4) of this section has
been deposited near the SF-DODS site boundary.
(iii) Tier 3 monitoring shall be employed within and outside the
dredged material footprint when Tier 2 Chemical Monitoring is
insufficient to establish that dredged sediments deposited at the
disposal site do not contain levels of chemical contaminants that are
significantly elevated above the range of chemical contaminant levels
in dredged sediments that the Regional Administrator and the District
Engineer found to be suitable for disposal at the SF-DODS pursuant to
40 CFR part 227.
(3) Biological monitoring.
(i) Pelagic communities. Biological monitoring for pelagic
communities shall remain limited to Tier 1 monitoring when Tier 1
monitoring establishes that disposal at the SF-DODS has not endangered
the monitored pelagic communities. When Tier 1 monitoring is
insufficient to make reasonable conclusions whether disposal at the
site has endangered the monitored pelagic communities, then Tier 2
monitoring of pelagic communities shall be employed. When Tier 2
monitoring is insufficient to make reasonable conclusions whether
disposal at the site has endangered the monitored pelagic communities,
then Tier 3 monitoring of pelagic communities shall be employed.
(ii) Benthic communities. Biological monitoring for benthic
communities shall remain limited to Tier 1 monitoring when physical
monitoring establishes that a significant amount of dredged material
has not been deposited outside of the site boundaries. If physical
monitoring indicates that a significant amount of dredged material has
been deposited or transported outside of the site boundaries, then Tier
2 analysis of benthic communities shall be performed. If Chemical
Monitoring establishes that there is significant bioaccumulation of
contaminants in organisms sampled from the within or outside the
dredged material footprint, then Tier 3 Biological Monitoring of the
disposal site shall be employed. Tier 3 Biological Monitoring may
replace Tier 3 Chemical Monitoring if observed biological effects are
established as surrogate indicators for bioaccumulation of chemical
contaminants in sampled organisms.
(4) Definition of significant dredged material accumulation. For
purposes of this paragraph (b)(70)(iv)(A) of this section, dredged
material accumulation on the ocean bottom to a thickness of five
centimeters shall be considered to be a significant amount of dredged
material. The Regional Administrator may determine that a lesser amount
of accumulation is significant if available evidence indicates that a
lesser amount of off-site accumulation could endanger marine resources.
(B) Modification, suspension or termination of site use.
(1) If the results of site monitoring or other information indicate
that any of the following are occurring as a result of disposal at the
SF-DODS, then the Regional Administrator shall modify, suspend, or
terminate site use overall, or for individual projects as appropriate:
(i) Exceedance of Federal marine water quality criteria within the
SF-DODS following initial mixing as defined in 40 CFR 227.29(a) or
beyond the site boundary at any time;
(ii) Placement or movement of significant quantities of disposed
material outside of site boundaries near or toward significant
biological resource areas or marine sanctuaries;
(iii) Endangerment of the marine environment related to potentially
significant adverse changes in the structure of the benthic community
outside the disposal site boundary;
(iv) Endangerment to the health, welfare, or livelihood of persons
or to the environment related to potentially significant adverse
bioaccumulation in organisms collected from the disposal site or areas
adjacent to the site boundary compared to the reference site;
(v) Endangerment to the health, welfare, or livelihood of persons
related to potentially significant adverse impacts upon commercial or
recreational fisheries resources near the site; or
(vi) Endangerment to the health, welfare, or livelihood of persons
or to the environment related to any other potentially significant
adverse environmental impacts.
(2) The Regional Administrator shall modify site use, rather than
suspend or terminate site use, when site use modification will be
sufficient to eliminate the adverse environmental impacts referred to
in paragraphs (b)(70)(iv)(B)(1)(i) or (ii) of this section or the
endangerment to human health, welfare or livelihood to the environment
referred to in paragraphs (b)(70)(iv)(B)(1)(iii) through (vi) of this
section. Notwithstanding the provisions of any permit or federal
project authorization authorizing site use, the Regional Administrator
shall order, following opportunity for public comment, any of the
following modifications to site use that he or she deems necessary to
eliminate the adverse environmental effect or endangerment to human
health, welfare, or livelihood or to the environment:
(i) Change or additional restrictions upon the permissible times,
rates and total volume of disposal of dredged material at the SF-DODS;
(ii) Change or additional restrictions upon the method of disposal
or transportation of dredged materials for disposal; or
(iii) Change or additional limitations upon the type or quality of
dredged materials according to chemical, physical, bioassay toxicity,
or bioaccumulation characteristics.
(3) The Regional Administrator shall suspend site use when site use
suspension is both necessary and sufficient to eliminate any adverse
environmental effect or endangerment to human health, welfare, or
livelihood or to the environment referred to in paragraph
(b)(70)(iv)(B)(1) of this section. Notwithstanding the provisions of
any permit or federal project authorization authorizing site use, the
Regional Administrator shall order, following opportunity for public
comment, site use suspension until an appropriate management action is
identified or for a time period that will eliminate the adverse
environmental effect or endangerment to human health, welfare, or
livelihood or to the environment.
(4) Notwithstanding the provisions of any permit or federal project
authorization authorizing site use, the Regional Administrator shall
order, following opportunity for public comment, site use permanently
terminated if this is the only means for eliminating the adverse
environmental impacts referred to in paragraphs (b)(70)(iv)(B)(1)(i) or
(ii) of this section or the endangerment to human health, welfare or
livelihood to the environment referred to in paragraphs
(b)(70)(iv)(B)(1)(iii) through (vi).
* * * * *
[FR Doc. 94-19289 Filed 8-10-94; 8:45 am]
BILLING CODE 6560-50-M
