[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 46142-46150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23028]
[[Page 46141]]
_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 228
Simultaneous De-designation and Termination of the Mud Dump Site and
Designation of the Historic Area Remediation Site; Final Rule
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules
and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-5885-1]
Simultaneous De-designation and Termination of the Mud Dump Site
and Designation of the Historic Area Remediation Site
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is de-
designating and terminating the New York Bight Dredged Material
Disposal Site (also known as the Mud Dump Site) and simultaneously
designating the Historic Area Remediation Site. The Mud Dump Site was
designated in 1984 for the disposal of 100 million cubic yards of
dredged material from navigational dredging and other dredging projects
associated with the Port of New York and New Jersey and nearby harbors.
The site and surrounding areas that have been used historically as
disposal sites for dredged materials are simultaneously being
redesignated under 40 CFR part 228 as the Historic Area Remediation
Site. The Historic Area Remediation Site will be managed to reduce
impacts of historical disposal activities at the site to acceptable
levels (in accordance with 40 CFR 228.11(c)). This action identifies
for remediation an area in and around the Mud Dump Site which has
exhibited the potential for adverse ecological impacts. As discussed
further below, the Historic Area Remediation Site will be remediated
with uncontaminated dredged material (i.e., dredged material that meets
current Category I standards and will not cause significant undesirable
effects including through bioaccumulation) (hereinafter referred to as
``the Material for Remediation'' or ``Remediation Material'').
EFFECTIVE DATE: This final regulation becomes effective on September
29, 1997.
ADDRESSES: The official record of this rulemaking is available for
inspection at the EPA Region 2 Library, 16th Floor, 290 Broadway, New
York, NY 10007-1866. For access to the docket materials, call Karen
Schneider at (212) 637-3189 between 9:00 am and 3:30 pm Monday through
Friday, excluding legal holidays, for an appointment. The EPA public
information regulations (40 CFR part 2) provide that a reasonable fee
may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. Douglas Pabst, Team Leader,
Dredged Material Management Team, US EPA Region 2, 290 Broadway, New
York, NY 10007-1866; (212) 637-3797 (pabst.douglas@epamail.epa.gov).
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
Entities potentially affected by this action include those who
might have sought permits to dump dredged material into ocean waters at
the Mud Dump Site and those who might seek to place Remediation
Material at the Historic Area Remediation Site, under the Marine
Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401 et seq.
(hereinafter referred to as the MPRSA). The rule would primarily be of
relevance to entities in the New York-New Jersey Harbor and surrounding
area seeking permits from the U.S. Army Corps of Engineers (USACE) for
the ocean dumping of dredged material at the Mud Dump Site or those
seeking to place Remediation Material at the Historic Area Remediation
Site, as well as the USACE itself. Potentially affected categories and
entities include:
------------------------------------------------------------------------
Category Examples of potentially affected entities
------------------------------------------------------------------------
Industry..................... Ports in NY/NJ Harbor and surrounding
areas seeking MPRSA permits for dredged
material.
Marinas in the NY/NJ Harbor and
surrounding areas seeking MPRSA permits
for dredged material.
Shipyards in the NY/NJ Harbor and
surrounding areas seeking MPRSA permits
for dredged material.
Berth owners in the NY/NJ Harbor and
surrounding area seeking MPRSA permits
for dredged material.
State/local/tribal Local governments owning ports or berths
governments. in the NY/NJ Harbor and surrounding area
seeking MPRSA permits for dredged
material.
Federal...................... US Army Corps of Engineers for its
proposed dredging projects in NY/NJ
Harbor and surrounding areas.
Federal agencies seeking MPRSA permits
for dredged material from NY/NJ Harbor
and surrounding areas.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
you or your organization may be affected by this action, you should
carefully consider whether you or your organization may be subject to
the requirement to obtain a MPRSA permit in accordance with the Purpose
and Scope provisions of section 220.1 of Title 40 of the Code of
Federal Regulations, and you wish to use the sites affected by today's
final rule. If you have any questions regarding applicability of this
action to a particular entity, please consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Other entities potentially affected by today's final rule would
include commercial and recreational fishing interests using New York
Bight Apex fishing and shellfish grounds. By providing for remediation
of areas adversely impacted by historic disposal activities, today's
rule would be expected to have positive effects on fishery and
shellfish resources.
II. Background
The U.S. Environmental Protection Agency (EPA) proposed a single
rulemaking action on May 13, 1997, to de-designate and terminate the
New York Bight Dredged Material Disposal Site (also known as the Mud
Dump Site (MDS)), and simultaneously designate the site and surrounding
areas that have been used historically as disposal sites for dredged
materials as the Historic Area Remediation Site (HARS) under 40 CFR
part 228. (62 FR 26267). The proposed rule was accompanied by a
Supplemental Environmental Impact Statement (SEIS) prepared pursuant to
EPA's voluntary EIS policy (39 FR 16186 (May 7, 1974)), a Biological
Assessment as submitted to the National Marine Fisheries Service (NMFS)
pursuant to section 7 of the Endangered Species Act (16 U.S.C. 1536),
and a draft Site Management and Monitoring Plan,
[[Page 46143]]
prepared pursuant to section 102(c)(3) of the MPRSA (33 U.S.C.
1412(c)(3)).
The SEIS provided an analysis of four alternatives: (1) No Action,
(2) Closure of the MDS with No Designation of the HARS, (3)
Remediation, and (4) Restoration. The proposed rule endorsed
implementation of Alternative 3 of the SEIS (the preferred
alternative), providing for the simultaneous closure/de-designation of
the MDS and designation of the HARS. The HARS would be managed to
reduce impacts of historical disposal activities at the site to
acceptable levels (in accordance with 40 CFR 228.11(c)). The proposal
further provided that the HARS would be remediated with uncontaminated
dredged material (i.e., dredged material that meets current Category I
standards and will not cause significant undesirable effects including
through bioaccumulation), hereinafter referred to as ``the Material for
Remediation'' or ``Remediation Material.''
The SEIS and the proposed rule's preamble (62 FR 26272-26276)
provided an analysis of the proposed action's compliance with the site
designation criteria of 40 CFR 228.5 and 228.6(a). The final rule
promulgates, without change, the proposal to amend 40 CFR 228.15(d)(6)
to de-designate the MDS and simultaneously designate the HARS. This
final action provides a site for long-term use of Category I dredged
material resulting from dredging projects in the NY/NJ Harbor area and
provides for the remediation of the HARS, an area in the NY Bight that
has been found to exhibit the potential for adverse ecological impacts
due to existing degraded sediment conditions. A map showing the
location of the HARS is provided in Figure 1. For further information,
readers should refer to the preamble to the proposed rule and the SEIS.
Because today's action promulgates the proposed rule language without
change, EPA continues to find that the action being taken satisfies the
site designation criteria of 40 CFR part 228.
BILLING CODE 6560-50-P
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BILLING CODE 6560-50-C
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III. Public Comments
In the preamble to the proposed rule, EPA requested public comment
by June 30, 1997, and held three public hearings (attended by an
estimated total of 120 people) as follows:
June 16, 1997, at 7:00 PM: Monmouth Beach Municipal Auditorium, 22
Beach Road, Monmouth Beach, New Jersey, 07750. (16 individuals
presented testimony)
June 17, 1997, at 7:00 PM: Social Services Building Auditorium, County
Seat Drive, Mineola, Long Island, NY 11501 (One individual presented
testimony)
June 18, 1997, at 2:00 PM: Oval Room, Port Authority of New York and
New Jersey, Floor 43, 1 World Trade Center, New York, New York 10048.
(6 individuals presented testimony).
In addition to the testimony and comments provided at the hearings,
EPA also received 45 sets of written comments on the proposed action.
Dredging and ocean disposal of NY/NJ Harbor sediments has proven to
be a controversial and complex issue in recent years, and as would be
expected in light of such controversy, the comments received expressed
a wide range of divergent opinions. In developing the final rule, EPA
reviewed and considered all the written comments as well as those
received verbally at the three hearings. Most of the comments received
expressed, to varying degrees, support for closure of the MDS and
remediation of the HARS, and many requested that the proposed rule be
adopted without change from the proposal. Other comments questioned
closure of the MDS or the timing for such closure, whereas others
supported MDS closure but opposed placement of Remediation Material at
the HARS, or offered alternative ideas for remediation. For the
convenience of the reader, below is a summary of some of the major
issues raised and EPA's responses to those comments. EPA carefully
considered and responded to each comment received, and EPA emphasizes
that the discussion below is but a brief summary of some of the key
points raised and EPA's responses. A complete Response to Comments
Document has been prepared which contains all the comments received and
EPA's responses to each of these comments. That document is available
for viewing at the location under ADDRESSES above.
Closure of MDS
A few commenters questioned a September closure date for the MDS.
These commenters asserted that the proposed closure date for the MDS
was arbitrary, primarily based on their belief that bathymetry data
from the USACE supported their conclusion that a September termination
date will deprive the Port of as much as 8.9 million cubic yards of
Category II disposal capacity. The factual basis for this comment is
incorrect. A technical report prepared by USACE Waterways Experiment
Station (Summer 1997 Capped Category II Mound in the Mud Dump Site-
Preliminary Design. 14 January 1997), which was based on the most
recent available US Army Corps of Engineers New York District (USACE-
NYD) bathymetry survey data for the MDS, concluded that prior to the
commencement of the Category II disposal operations in 1997, there was
approximately 800,000 cubic yards of Category II capacity. Permits to
fully utilize that remaining capacity prior to MDS closure were issued
by the USACE-NYD, and dumping operations utilizing Category II capacity
were actually completed on August 10, 1997. Because there is no
remaining Category II capacity at the MDS, today's rule cannot have the
effect these commenters raised. EPA also notes that, simultaneous with
closure of the MDS, the HARS also is designated, thereby providing a
long term site for the placement of Remediation Material resulting from
Category I dredging projects from NY/NJ Harbor and surrounding areas.
These commenters also questioned the September closure date for the
MDS on the basis that during winter, there is reduced biological
activity by marine organisms at the site, apparently making winter a
more favorable disposal season in the views of the commenters. EPA
notes that in designating the MDS, seasonal restrictions on its use
were not found to be necessary, nor does the MDS Site Management and
Monitoring Plan (SMMP) call for such restrictions. Delaying the
dredging and disposal operations that utilized the remaining MDS
Category II capacity to sometime in the winter thus was not
environmentally necessary, and would simply have delayed important
dredging projects. With the full utilization of MDS Category II
capacity, EPA also believes it is appropriate at the same time to close
the MDS so that Category I dredged material which might otherwise
simply be dumped at the MDS can be beneficially utilized to remediate
areas within the HARS that exhibit the potential for adverse ecological
impacts.
These commenters also expressed the view that the September closure
date was without a rational basis and that the proposal was an after-
the-fact attempt to justify a political decision expressed in the July
24, 1996, 3-Party Letter (see 62 FR 26269 for description of that
letter). EPA does not agree. The fact that the Administration felt the
need to develop a coordinated, comprehensive approach to protecting and
improving the environmental and economic health of the Port merely
reflects the difficulty of this issue and the significance of the Port.
Today's final rule was undertaken following notice and comment
rulemaking under the Administrative Procedure Act, and is amply
supported by the SEIS and its associated environmental studies. Those
documents demonstrate the degraded sediment conditions within the HARS
and the need for the action being taken, which is intended to remediate
those degraded conditions and provide a site for future placement of
Remediation Material generated by Harbor dredging projects. Further, as
indicated above, MDS Category II capacity has already been utilized,
and thus the MDS closure date has no effect on Category II dredged
material disposal options.
Other commenters expressed their support for closure of the MDS,
pointing out that such action was well justified by the studies and
information presented in the SEIS. Some of these commenters further
expressed their view that the degraded sediment conditions at the HARS
could be primarily attributed to dredged material disposal. Although
EPA agrees that the conditions identified in the HARS warrant action to
designate the HARS for remediation, EPA cautions that the ability to
unequivocally link any particular pollution source directly to specific
impacts within a receiving body is generally difficult and complex.
This is especially difficult in the marine environment, and
particularly complex in the New York Bight Apex, which has received a
plethora of pollutants from a wide variety of sources over a long
period of time. In addition, historically dumped dredged material was
likely to be significantly more contaminated than the material placed
at the MDS in more recent years, which has been subject to careful
testing and evaluation under the MPRSA. EPA does agree, however, that
degraded conditions identified within the HARS plainly warrant
remediation of that area. Given that MDS Category II capacity has now
been utilized, and degraded conditions have been identified in the
broader area of the HARS, today's action to close the MDS and
simultaneously designate the HARS will allow for remediation of those
degraded conditions.
[[Page 46146]]
Designation of the HARS
Two commenters expressed the need to assure that designation of the
HARS and de-designation of the MDS take place at the same time so that
there would be no gap in the availability of an ocean site. EPA notes
that the proposed rule (and likewise the final rule) provides that
closure of the MDS and designation of the HARS is one single, non-
severable action. This was expressly noted in the preamble to the
proposed rule, which stated the action consists of a single rulemaking
action that amends 40 CFR 228.15(d)(6) by deleting existing language
designating the MDS and simultaneously replacing it with language
designating the HARS (See, 62 FR 26268 at column 2). The amendatory
language thus has been deliberately structured so that it cannot result
in the MDS being closed without the HARS simultaneously coming into
existence.
Some commenters questioned the need for remediating such a broad
area as the HARS or questioned the need for remediation of the HARS at
all. Some of these comments also suggested that EPA adopt a ``go slow''
approach whereby smaller areas would be remediated, with subsequent
investigation and analysis to assess the results. As discussed in the
SEIS, material placed in the HARS will remediate degraded sediment
conditions identified in the HARS. In addition, as provided in section
10.2.2 of the HARS SMMP, to the maximum extent practicable and based on
availability, each remediation area will be remediated with material of
similar grain size/composition as the sediments currently located
within that Remediation Area. Although placement of Remediation
Material will cause short-term burial and mortality of some organisms,
monitoring data from disposal projects completed in the MDS and other
areas of the country have shown that marine life will recolonize the
sediments and return to conditions similar to those of comparable
sediment type (see page 4-31 through 4-34 of the SEIS and publications
cited therein). Moreover, placement of Remediation Material will occur
sequentially by remediation area cell (1 square nautical mile (nmi\2\)
each), and would not simultaneously impact the entire 9 nmi\2\ PRA of
the HARS, meaning that the temporary impacts that do occur will be
localized. In exchange for such localized temporary impacts, broader
long-term benefits will result in that the currently degraded sediment
conditions within the HARS will be improved. EPA has also developed a
HARS SMMP in order to provide for ongoing monitoring and assessment of
placement operations and identify potential adverse effects. Placement
of Remediation Material is subject to the MPRSA and USACE permitting
procedures, including the opportunity for public comment.
A number of commenters expressed suggestions on the type of
material that should be allowed for use as Remediation Material. These
comments included suggestions for a so-called ``rapid remediation
alternative'' involving use of material exhibiting Category II
characteristics in addition to using Category I material. Other
commenters took the opposite view, urging that Remediation Material
should instead be of even higher quality than Category I material and
should be free of all contaminants or be limited to so-called
``exclusionary material''. (Such materials are ``excluded'' from
testing because they are clean. They consist of such things as clean
sand from high energy areas (e.g., Ambrose channel) and sediments from
below levels where man-made contaminants exist (e.g., excavations from
deep layers of sediment which may be produced from deepening projects
or construction of deep borrow pits)). Within this range of divergent
views, some commenters suggested that coverage of the HARS could occur
more quickly if an initial thinner layer of Remediation Material was
placed, then followed by placement of another layer to complete the cap
to an at-least 1 meter thickness.
EPA does not believe that placement of Category II material at the
HARS would be consistent with the goals of remediation at the HARS.
Category II material demonstrates a bioaccumulation potential that is
inconsistent with the remediation objectives for this site. The
commenters' suggestion, in essence, would allow dumping of Category II
material without the expeditious capping practices utilized at the MDS.
As documented in the SEIS and the proposed rule's preamble, the HARS
exhibits signs of degraded sediments which would be unsuitable for
ocean disposal by current standards, and EPA does not believe it is
appropriate to attempt to ``remediate'' such a demonstrably stressed
environment by using uncapped Category II material that would have been
capped if dumped at the existing MDS.
These commenters were also of the view that by using Category II
material as Remediation Material, the time for remediating the HARS
could be cut in half. EPA cautions that, in general, projection of
dates as to when completion of HARS remediation will take place is
uncertain and will be affected by the overall volume of Remediation
Material that becomes available. EPA considered the commenters'
assertion that use of Category II material would cut the remediation
period in half, but based on volume projections contained in the 1996
USACE-NYD Interim Report for the Dredged Material Management Plan
(Interim DMMP) for NY/NJ Harbor, concludes that such substantial time
savings would not result. EPA also notes that because Remediation
Material is not limited to NY/NJ Harbor dredging projects, additional
volumes of Remediation Material could come from surrounding areas. EPA
also notes that even in the context of NY/NJ Harbor dredging projects,
improved pollutant source controls and the potential 50-foot deepening
project currently under study by the USACE-NYD could further result in
additional Remediation Material. The recently-approved Comprehensive
Conservation and Management Plan for New York-New Jersey Harbor
provides for a variety of actions to be taken by many parties that
would reduce contaminant levels from point and nonpoint sources. These
additional sources of Remediation Material could further help reduce
the time frame for remediation. As previously explained, EPA does not
believe that use of Category II material would be consistent with the
remediation objectives of the HARS, and this is especially true given
that resulting time savings in capping the HARS would not be
substantial.
Other commenters expressed the view that Remediation Material
should be free of all contaminants. EPA notes that such an approach is
virtually unachievable, and would so reduce the volume of Remediation
Material available that it would drastically increase the time period
for remediation, as well as interfering with the goal of using
Remediation Material that is similar in grain size to the existing
sediment. Furthermore, even if additional cap material were to be
generated by dredging areas that otherwise would not be dredged, this
could have other adverse effects by disruption to the area being
dredged and also would have substantial economic costs. SEIS
Alternative 4 considered using exclusionary sandy material as the sole
source of the cap, and rejected this option based, in part, on the fact
that it would have resulted in substantially increased remediation time
as well as widely altering existing sediment grain sizes (and hence
habitat) in the HARS. A ``zero'' contaminant approach would impair the
ability to remediate the HARS and result in degraded sediments
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within the HARS continuing to be exposed to marine organisms for many
more years to come. EPA does not believe such a result is
environmentally sound.
Moreover, a ``zero'' contamination level is not necessary to
remediate the HARS. The primary purpose of placing Remediation Material
at the HARS is to improve conditions over those currently at the site,
where sediments in the PRA exhibit Category II and III characteristics.
This requires a balance between ensuring that the material placed for
remediation will not contribute to further degradation of the area, and
ensuring that there is an adequate supply of Remediation Material with
appropriate grain size such that remediation can take place in the near
future. The definition of Remediation Material used in the SEIS and the
preamble to the proposed rule, ``uncontaminated dredged material (i.e.,
dredged material that meets current Category I standards and will not
cause significant undesirable effects including through
bioaccumulation),'' was intended to strike this balance.
EPA also notes that one commenter looked at the issue of what might
constitute Remediation Material on a compound-by-compound basis (e.g.,
PCBs). This commenter expressed the view that use of Category I
Material for Remediation would do little to improve the conditions of
the Bight. EPA does not agree, because Category I material meets the
regulations' criteria for ocean disposal (i.e., placement of such
sediments will not cause significant undesirable effects, including the
possibility of danger associated with bioaccumulation) and is suitable
for unrestricted ocean disposal as it is below Regional matrix values
and Regional Category I dioxin values. Covering sediments that have
been shown to have high levels of toxicity or bioaccumulative
contaminants with this material will result in improved conditions in
the HARS. Using a simple compound-by-compound comparison of Category I
material to values within or around the HARS and requiring that all
such compounds be lower in the Remediation Material than sediments in
or around the HARS would virtually assure that no Category I material
could be used to remediate the HARS.
Other commenters expressed the view that the definition of
Remediation Material should be left unchanged. EPA notes that today's
final rule was adopted without change from the proposal, and that 40
CFR 228.15(d)(6)(v)(A) continues to provide that `` Use of the site
will be restricted to dredged material suitable for use as the Material
for Remediation. This material shall be selected so as to ensure it
will not cause significant undesirable effects including through
bioaccumulation or unacceptable toxicity, in accordance with 40 CFR
227.6.'' EPA Region 2 and the USACE-NYD will be utilizing the current
dredged material evaluation process for identifying Category I dredged
material in determining the suitability of dredged material to be
utilized as Remediation Material at the HARS. It also should be noted
that in accordance with the NY/NJ Harbor Estuary Program Comprehensive
Conservation and Management Plan, EPA Region 2 plans to initiate a
public and scientific peer review process of the dredged material
testing evaluation framework.
With regard to comments that an initial layer of Remediation
Material be placed so as to more quickly cover a broader area with
Remediation Material, and then followed-up with placement of additional
material to bring the cap up to an at-least 1 meter thickness, EPA
agrees that consistent with the availability of appropriate material,
this could be a useful approach to placing material at the HARS. The
SMMP for the HARS thus has been modified to allow for a procedure for
covering each individual remediation area within the HARS with at least
a 0.5 meter layer of Remediation Material first, and then placing at
least 0.5 meters of additional Remediation Material, to achieve the at-
least 1 meter thickness to assure the HARS is adequately capped/
remediated.
As can be seen from the above discussions, there were many comments
regarding Remediation Material, reflecting very divergent views. In
summary, EPA notes that there are a wide variety of factors that need
to be considered in determining the appropriate approach to remediation
of the HARS. These considerations include not only the quality of
material required to eliminate the potential for adverse environmental
impacts, but issues such as the rate of remediation, and the likely
availability of adequate volumes of environmentally appropriate
Remediation Material. In particular, the following factors need to be
weighed in selecting the best option:
(1) The potential for adverse environmental impacts due to degraded
sediments currently at the HARS, particularly in light of the facts
that:
--Existing sediments located in the HARS are acutely toxic to standard
test organisms (amphipods) (SEIS pg 3-74); and
--Benthic worms collected from within the HARS are accumulating
undesirable levels of dioxin (HARS SMMP section 8.2.5).
(2) The environmental appropriateness of particular types of
material.
--All Category I material meets the regulations and is suitable for
unrestricted ocean disposal (see 40 CFR part 227).
--Category II material demonstrates bioaccumulation such that regional
guidance provides for capping to isolate it from the marine environment
(see MDS SMMP).
--To the maximum extent practicable, the grain size/composition of
Remediation Material needs to match that of the area being remediated,
in order to ensure that the biological communities will be able to re-
colonize on the same or similar type sediments (HARS SMMP section
10.2.2).
(3) The availability of adequate quantities of appropriate
Remediation Material.
--There is limited availability of exclusionary material, which would
result in significant delays in remediating the HARS if that were the
sole source of Remediation Material (see SEIS pg. 4-45).
--There is a need to provide a site for long-term placement of Category
I dredged material from NY/NJ Harbor dredging projects (see Interim
Report of DMMP pgs. 2-2, 13-8 through 13-9).
Given all of the above considerations, EPA believes that allowing
for the use of Category I material strikes the proper balance of
improving degraded conditions in the HARS within a reasonable time
frame.
IV. Compliance With Other Acts and Orders
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees,
[[Page 46148]]
or loan programs or the rights and obligations of recipients thereof;
or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
Today's action, which simultaneously de-designates the MDS and
designates the HARS, is not a significant regulatory action under E.O.
12866. The de-designation of the MDS will not affect the disposal of
Category II material, because the MDS capacity for Category II
materials was utilized by completion of Category II disposal operations
on August 10, 1997. Because the use of Category II capacity was
completed regardless of today's final action, today's final rule could
not have economic effects with regard to Category II material.
Moreover, as explained in the response to comment 1-16 included in the
record for this rule, even if one assumes arguendo, that the final rule
somehow would limit Category II capacity, any resultant impacts are far
below the effects specified in E.O. 12866, even with the use of highly
conservative assumptions. With regard to Category I material, the HARS
will continue to provide an EPA-designated site for the placement of
``uncontaminated dredged material (i.e., dredged material that meets
current Category I standards and will not cause significant undesirable
effects including through bioaccumulation)''. It thus has been
determined that this rule is not a ``significant regulatory action''
under the terms of the Executive Order 12866 and is therefore not
subject to OMB review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
federal agencies generally are required to prepare a final regulatory
flexibility analysis whenever the agency promulgates a final rule
subject to notice and comment requirements under 5 U.S.C. 553 after
being required by that section (or any other law) to publish a general
notice of proposed rulemaking. Section 605(b) sets forth an exception
to this requirement. It provides that no final regulatory flexibility
analysis is required if the head of the agency certifies that the final
rule will not have a significant economic impact on a substantial
number of small entities. Therefore, the Agency did not prepare a final
regulatory flexibility analysis.
As previously explained, the Agency is de-designating the MDS and
simultaneously designating the HARS, where only Remediation Material
(i.e., dredged material that meets current Category I standards and
will not cause significant undesirable effects including through
bioaccumulation) may be placed. De-designation of the MDS and
designation of the HARS will not have a significant economic impact on
a substantial number of small entities because the number of
potentially affected small entities is very small. EPA has reviewed 11
years of permit reports prepared by the USACE-NYD for use in
submissions by the United States to the International Maritime
Organization on ocean dumping activities. On average the USACE-NYD has
only issued 5 ocean dumping permits per year to small entities for use
of the MDS. Moreover, any arguable costs to small entities associated
with today's action would not be significant because EPA assessment
indicates that the cost would not be significantly different from
current costs.
Therefore, for the reasons explained above, the Regional
Administrator certifies, pursuant to section 605(b) of the RFA, that
the rule will not have a significant economic impact on a substantial
number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by the Office of Management
and Budget. Since this rule does not establish or modify any
information or record-keeping requirements, it is not subject to the
requirements of the Paperwork Reduction Act.
D. The Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed a
small government agency plan under section 203 of the UMRA. The plan
must provide for notifying potentially affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
This rule contains no Federal mandates (under the regulatory
provisions of the UMRA) for State, local, or tribal governments or the
private sector. As is explained elsewhere in this preamble, today's
rule de-designates the MDS, and designates instead an area in the ocean
suitable for the placement of Remediation Material. Accordingly, it
imposes no new enforceable duty on any State, local or tribal
governments or the private sector. Even if this rule did contain a
Federal mandate, it would not result in annual expenditures of $100
million or more for State, local or tribal governments in the
aggregate, or the private sector. Thus, this rule is not subject to the
requirements of sections 202 and 205 of UMRA.
For the foregoing reasons, EPA also has determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus, the requirements of section
203 of UMRA also do not apply to this rule.
E. The Endangered Species Act
Under section 7(a)(2) of the Endangered Species Act, 16 U.S.C.
1536(a)(2), federal agencies are required to ``insure that any action
authorized, funded, or carried on by such agency . . . is not likely to
jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of habitat
of such species. . . .'' Under regulations implementing the Endangered
Species Act (ESA), a federal agency is required to consult with either
[[Page 46149]]
the U. S. Fish and Wildlife Service (FWS) or the National Marine
Fisheries Service (NMFS) (depending on the species involved) if the
agency's action ``may effect'' endangered or threatened species or
their critical habitat. See, 50 CFR 402.14(a).
ESA Consultation with FWS: Pursuant to the ESA, EPA consulted with
the FWS during the preparation of its SEIS for the expansion of the
MDS. Initially, FWS recommended that a Biological Assessment be
prepared to address potential impacts to the piping plover (Charadrius
melodus) and northeastern beach tiger beetle (Cicindela dorsalis
dorsalis), from the movement of materials disposed of at the proposed
Expanded MDS onto oceanfront beaches, shorelines, and intertidal areas.
In response, the EPA submitted for the FWS's consideration information
from hydrodynamic surveys conducted in the New York Bight showing that
dredged material plumes dissipate rapidly (i.e., on the order of two
hours), and that the mean current flows are away from oceanfront
beaches, shorelines, and intertidal areas. Additionally, as part of the
submittal, the EPA expressed the belief that the proposed expansion of
the MDS would not adversely affect the aforementioned species. On July
28, 1995, the FWS concurred with EPA's determination that the proposed
expansion of the MDS is not likely to adversely affect federally listed
species under its jurisdiction.
Although the EPA revised the scope of its SEIS after July 24, 1996
(i.e., de-designate the MDS/designate the HARS), it decided that
further consultation with the FWS would not be needed because the
revised action would not alter the conclusion of the original
consultation. The FWS received the SEIS for the simultaneous de-
designation of the MDS/designation of the HARS in May 1997, and has not
raised any new ESA-related concerns about EPA's proposed action.
ESA Consultation with NMFS: EPA initiated threatened and endangered
species consultation with the NMFS on April 4, 1996. Based on this
coordination, EPA concluded that the preparation of a biological
assessment was warranted for the Kemp's ridley and loggerhead sea
turtles, and the humpback and fin whales within the MDS and surrounding
areas. The NMFS concurred with this approach on May 8, 1996, and EPA
sent them a Biological Assessment in May 1997, which concluded that
there are unlikely to be any effects on threatened or endangered
species or their critical habitat. The NMFS, in a letter of July 30,
1997, concurred with this assessment.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: August 25, 1997.
William J. Muszynski,
Acting Regional Administrator, EPA Region 2.
In consideration of the foregoing, EPA is amending Part 228 of
Title 40 as set forth below.
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
1. The authority citation for 40 CFR Part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by revising paragraph (d)(6) to read
as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(d) * * *
(6) Historical Area Remediation Site (HARS) Designation/Mud Dump
Site Termination.
(i) Status of Former Mud Dump Site: The Mud Dump Site, designated
as an Impact Category I site on May 4, 1984, is terminated.
(ii) Location: (A) The HARS (which includes the 2.2 square nautical
mile area of the former Mud Dump Site) is a 15.7 square nautical mile
area located approximately 3.5 nautical miles east of Highlands, New
Jersey and 7.7 nautical miles south of Rockaway, Long Island. The HARS
consists of a Primary Remediation Area (PRA), a Buffer Zone, and a No
Discharge Zone. The HARS is bounded by the following coordinates:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A............................... 40 deg. 25' 39'' N............ 73 deg. 53' 55'' W............ 40 deg. 25.65' N............. 73 deg. 53.92' W.
M............................... 40 deg. 25' 39'' N............ 73 deg. 48' 58'' W............ 40 deg. 25.65' N............. 73 deg. 48.97' W.
P............................... 40 deg. 21' 19'' N............ 73 deg. 48' 57'' W............ 40 deg. 21.32' N............. 73 deg. 48.95' W.
R............................... 40 deg. 21' 19'' N............ 73 deg. 52' 30'' W............ 40 deg. 21.32' N............. 73 deg. 52.50' W.
S............................... 40 deg. 21' 52'' N............ 73 deg. 53' 55'' W............ 40 deg. 21.87' N............. 73 deg. 53.92' W.
V............................... 40 deg. 21' 52'' N............ 73 deg. 52' 30'' W............ 40 deg. 21.87' N............. 73 deg. 52.50' W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.
(B) The PRA, is a 9.0 square nautical mile area to be remediated
with at least a 1 meter cap of the Material for Remediation. The PRA is
bounded by the following coordinates:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
B............................... 40 deg. 25' 23'' N............ 73 deg. 53' 34'' W............ 40 deg. 25.38' N............. 73 deg. 53.57' W.
D............................... 40 deg. 25' 22'' N............ 73 deg. 52' 08'' W............ 40 deg. 25.37' N............. 73 deg. 52.13' W.
F............................... 40 deg. 23' 13'' N............ 73 deg. 52' 09'' W............ 40 deg. 23.22' N............. 73 deg. 52.15' W.
G............................... 40 deg. 23' 13'' N............ 73 deg. 51' 28'' W............ 40 deg. 23.22' N............. 73 deg. 51.47' W.
H............................... 40 deg. 22' 41'' N............ 73 deg. 51' 28'' W............ 40 deg. 22.68' N............. 73 deg. 51.47' W.
I............................... 40 deg. 22' 41'' N............ 73 deg. 50' 43#'' W........... 40 deg. 22.68' N............. 73 deg. 50.72' W.
L............................... 40 deg. 25' 22'' N............ 73 deg. 50' 44'' W............ 40 deg. 25.37' N............. 73 deg. 50.73' W.
N............................... 40 deg. 25' 22'' N............ 73 deg. 49' 19'' W............ 40 deg. 25.37' N............. 73 deg. 49.32' W.
O............................... 40 deg. 21' 35'' N............ 73 deg. 49' 19'' W............ 40 deg. 21.58' N............. 73 deg. 49.32' W.
[[Page 46150]]
Q............................... 40 deg. 21' 36'' N............ 73 deg. 52' 08'' W............ 40 deg. 21.60' N............. 73 deg. 52.13' W.
T............................... 40 deg. 22' 08'' N............ 73 deg. 52' 08'' W............ 40 deg. 22.13' N............. 73 deg. 52.13' W.
U............................... 40 deg. 22' 08'' N............ 73 deg. 53' 34'' W............ 40 deg. 22.13' N............. 73 deg. 53.57' W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.
(iii) Size: 15.7 square nautical miles.
(iv) Depth: Ranges from 12 to 42 meters.
(v) Restrictions on Use:
(A) The site will be managed so as to reduce impacts within the PRA
to acceptable levels in accordance with 40 CFR 228.11(c). Use of the
site will be restricted to dredged material suitable for use as the
Material for Remediation. This material shall be selected so as to
ensure it will not cause significant undesirable effects including
through bioaccumulation or unacceptable toxicity, in accordance with 40
CFR 227.6.
(B) Placement of Material for Remediation will be limited to the
PRA. Placement of Material for Remediation within the PRA is not
allowed in a 0.27 nautical mile radius around the following coordinates
due to the presence of shipwrecks: 40 deg.25.30' W, 73 deg.52.80' N;
40 deg.25.27' W, 73 deg.52.13' N; 40 deg.25.07' W, 73 deg.50.05' N;
40 deg.22.46' W, 73 deg.53.27' N.
(C) No placement of material may take place within the Buffer Zone,
although this zone may receive material that incidentally spreads out
of the PRA. The Buffer Zone is an approximately 5.7 square nautical
mile area (0.27 nautical mile wide band around the PRA), which is
bounded by the following coordinates:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A............................... 40 deg.25'39'' N.............. 73 deg.53'55'' W.............. 40 deg.25.65' N.............. 73 deg.53.92' W.
B............................... 40 deg.25'23'' N.............. 73 deg.53'34'' W.............. 40 deg.25.38' N.............. 73 deg.53.57' W.
C............................... 40 deg.25'39'' N.............. 73 deg.51'48'' W.............. 40 deg.25.65' N.............. 73 deg.51.80' W.
D............................... 40 deg.25'22'' N.............. 73 deg.52'08'' W.............. 40 deg.25.37' N.............. 73 deg.52.13' W.
E............................... 40 deg.23'48'' N.............. 73 deg.51'48'' W.............. 40 deg.23.80' N.............. 73 deg.51.80' W.
F............................... 40 deg.23'13'' N.............. 73 deg.52'09'' W.............. 40 deg.23.22' N.............. 73 deg.52.15' W.
G............................... 40 deg.23'13'' N.............. 73 deg.51'28'' W.............. 40 deg.23.22' N.............. 73 deg.51.47' W.
H............................... 40 deg.22'41'' N.............. 73 deg.51'28'' W.............. 40 deg.22.68' N.............. 73 deg.51.47' W.
I............................... 40 deg.22'41'' N.............. 73 deg.50'43'' W.............. 40 deg.22.68' N.............. 73 deg.50.72' W.
J............................... 40 deg.23'48'' N.............. 73 deg.51'06'' W.............. 40 deg.23.80' N.............. 73 deg.51.10' W.
K............................... 40 deg.25'39'' N.............. 73 deg.51'06'' W.............. 40 deg.25.65' N.............. 73 deg.51.10' W.
L............................... 40 deg.25'22'' N.............. 73 deg.50'44'' W.............. 40 deg.25.37' N.............. 73 deg.50.73' W.
M............................... 40 deg.25'39'' N.............. 73 deg.48'58'' W.............. 40 deg.25.65' N.............. 73 deg.48.97' W.
N............................... 40 deg.25'22'' N.............. 73 deg.49'19'' W.............. 40 deg.25.37' N.............. 73 deg.49.32' W.
O............................... 40 deg.21'35'' N.............. 73 deg.49'19'' W.............. 40 deg.21.58' N.............. 73 deg.49.32' W.
P............................... 40 deg.21'19'' N.............. 73 deg.48'57'' W.............. 40 deg.21.32' N.............. 73 deg.48.95' W.
Q............................... 40 deg.21'36'' N.............. 73 deg.52'08'' W.............. 40 deg.21.60' N.............. 73 deg.52.13' W.
R............................... 40 deg.21'19'' N.............. 73 deg.52'30'' W.............. 40 deg.21.32' N.............. 73 deg.52.50' W.
S............................... 40 deg.21'52'' N.............. 73 deg.53'55'' W.............. 40 deg.21.87' N.............. 73 deg.53.92' W.
T............................... 40 deg.22'08'' N.............. 73 deg.52'08'' W.............. 40 deg.22.13' N.............. 73 deg.52.13' W.
U............................... 40 deg.22'08'' N.............. 73 deg.53'34'' W.............. 40 deg.22.13' N.............. 73 deg.53.57' W.
V............................... 40 deg.21'52'' N.............. 73 deg.52'30'' W.............. 40 deg.21.87' N.............. 73 deg.52.50' W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.
(D) No placement or incidental spread of the material is allowed
within the No Discharge Zone, an approximately 1.0 square nautical mile
area, bounded by the following coordinates:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
C............................... 40 deg.25'39'' N.............. 73 deg.51'48'' W.............. 40 deg.25.65' N.............. 73 deg.51.80' W.
E............................... 40 deg.23'48'' N.............. 73 deg.51'48'' W.............. 40 deg.23.80' N.............. 73 deg.51.80' W.
J............................... 40 deg.23'48'' N.............. 73 deg.51'06'' W.............. 40 deg.23.80' N.............. 73 deg.51.10' W.
K............................... 40 deg.25'39'' N.............. 73 deg.51'06'' W.............. 40 deg.25.65' N.............. 73 deg.51.10' W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.
(vi) Period of Use: Continuing use until EPA determines that the
PRA has been sufficiently capped with at least 1 meter of the Material
for Remediation. At that time, EPA will undertake any necessary
rulemaking to de-designate the HARS.
* * * * *
[FR Doc. 97-23028 Filed 8-28-97; 8:45 am]
BILLING CODE 6560-50-P
