[Federal Register Volume 64, Number 82 (Thursday, April 29, 1999)]
[Proposed Rules]
[Pages 23030-23036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10729]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-6320-3]


Ocean Dumping; Amendment of Site Designation

AGENCY: Environmental Protection Agency EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend 
the site designation for the San Francisco Deep Ocean Disposal Site 
(SF-DODS), an existing deep ocean dredged material disposal site 
located off San Francisco, California, by setting a permanent annual 
disposal volume limit and clarifying conditions and requirements for 
use of the site.
    Use of the SF-DODS, at the proposed annual volume limit of 4.8 
million cubic yards, is consistent with, and is an important component 
of the regional Long Term Management Strategy for the Placement of 
Dredged Material in the San Francisco Bay Region (LTMS). Clarifications 
to the original site designation Rule, developed from experience with 
and monitoring of site use since designation, include addition of 
management measures and other site use requirements to further minimize 
the potential for any adverse environmental impacts.

DATES: Comments must be received on or before Jnue 1, 1999.

ADDRESSES: Send questions or comments to: Ms. Kathleen Dadey, Dredging 
and Sediment Management Team, U.S. Environmental Protection Agency, 
Region IX (WTR-8), 75 Hawthorne Street, San Francisco, CA 94105, 
telephone (415) 744-1995.

FOR FURTHER INFORMATION CONTACT: Ms. Kathleen Dadey, Dredging and 
Sediment Management Team, U.S. Environmental Protection Agency, Region 
IX (WTR-8), 75 Hawthorne Street, San Francisco, CA 94105, telephone 
(415) 744-1995 or Mr. Allan Ota, telephone (415) 744-1980.

SUPPLEMENTARY INFORMATION: The primary supporting documents for this 
designation amendment are the Final EIS for the Designation of a Deep 
Water Ocean Dredged Material Disposal Site off San Francisco, 
California (August 1993), the Long Term Management Strategy for the 
Placement of Dredged Material in the San Francisco Bay Region Final 
Policy EIS/Programmatic EIR (October, 1998), and the SF-DODS 
designation Final Rule (40 CFR 228.15(l)(3)). All are available for 
public inspection at the following locations:
    1. EPA Region IX, Library, 75 Hawthorne Street, 13th Floor, San 
Francisco, California 94105.
    2. EPA Public Information Reference Unit, Room 2904, 401 M Street, 
S.W., Washington, DC 20460.
    3. ABAG/MTC Library, 101 8th Street, Oakland, California 94607.
    4. Alameda County Library, 835 C Street, Hayward, California 94541.
    5. Bancroft Library, University of California, Berkeley, California 
94720.
    6. Berkeley Public Library, 2090 Kittredge Street, Berkeley, 
California 94704.
    7. Daly City Public Library, 40 Wembley Drive, Daly City, 
California 94015.
    8. Environmental Information Center, San Jose State University, 125 
South 7th Street, San Jose, California 95192.
    9. Half Moon Bay Library, 620 Correas Street, Half Moon Bay, 
California 94019.

[[Page 23031]]

    10. Hayward Public Library, 835 C Street, Hayward, California 
94541.
    11. Hoover Institute, Stanford University, Stanford, California 
94305.
    12. Marin County Library, Civic Center, 3501 Civic Center Drive, 
San Rafael, California 94903.
    13. North Bay Cooperative Library, 725 Third Street, Santa Rosa, 
California 95404.
    14. Oakland Public Library, 125 14th Street, Oakland, California 
94612.
    15. Richmond Public Library, 325 Civic Center Plaza, Richmond, 
California 94804.
    16. San Francisco Public Library, Civic Center, Larkin & 
McAllister, San Francisco, California 94102.
    17. San Francisco State University Library, 1630 Holloway Avenue, 
San Francisco, California 94132.
    18. San Mateo County Library, 25 Tower Road, San Mateo, California 
94402.
    19. Santa Clara County Free Library, 1095 North Seventh Street, San 
Jose, California 95112.
    20. Santa Cruz Public Library, 224 Church Street, Santa Cruz, 
California 95060.
    21. Sausalito Public Library, 420 Litho Street, Sausalito, 
California 94965.
    22. Stanford University Library, Stanford, California 94305.
    Additional supporting documentation is contained in the draft SF-
DODS Site Management and Monitoring Plan Implementation Manual, the 
LTMS EIS/R administrative record, and related documents, available from 
the EPA Region IX Library (number 1 in the list above).

A. Regulated Entities

    Entities potentially regulated by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material in ocean waters at the SF-DODS, under the Marine Protection 
Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Rule would be 
primarily of relevance to parties in the San Francisco area seeking 
permits from the U.S. Army Corps of Engineers to transport dredged 
material for the purpose of disposal into ocean waters at the SF-DODS, 
as well as the U.S. Army Corps of Engineers itself (when proposing to 
dispose of dredged material at the SF-DODS). Potentially regulated 
categories and entities seeking to use the SF-DODS and thus subject to 
this Rule include:

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                                   Examples of potentially regulated
           Category                             entities
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Industry and General Public..   Ports.
                                Marinas and Harbors.
                                Shipyards and Marine Repair
                                Facilities.
                                Berth owners.
State, local and tribal         Governments owning and/or
 governments.                   responsible for ports, harbors, and/or
                                berths.
                                Government agencies requiring
                                disposal of dredged material associated
                                with public works projects.
Federal government...........   U.S. Army Corps of Engineers
                                Civil Works projects.
                                Other Federal agencies,
                                including the Department of Defense.
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    This table lists the types of entities that EPA is now aware could 
potentially be regulated. EPA notes, however, that nothing in this 
amendment alters in any way, the jurisdiction of EPA, or the types of 
entities regulated under the Marine Protection Research and Sanctuaries 
Act. To determine if you or your organization is potentially regulated 
by this action, you should carefully consider whether you expect to 
propose ocean disposal of dredged material, in accordance with the 
Purpose and Scope provisions of 40 CFR 220.1, and if you wish to use 
the SF-DODS. If you have questions regarding the applicability of this 
action to a particular entity, consult the persons listed in the 
proceeding FOR FURTHER INFORMATION section.

B. Background

    Section 102(c) of the Marine Protection Research and Sanctuaries 
Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the 
Administrator of EPA authority to designate sites where ocean disposal 
may be permitted. On October 1, 1986, the Administrator delegated 
authority to designate ocean dredged material disposal sites to the 
Regional Administrator of the EPA Region in which the site(s) is 
located. Today's action, proposing to amend the 40 CFR 228.15(l)(3) SF-
DODS designation Rule, is being made pursuant to that authority.
    By publication of a Final Rule in the Federal Register on August 
11, 1994 (59 FR 41243), EPA Region IX designated the SF-DODS as an 
ocean dredged material disposal site. The center of the SF-DODS is 
located approximately 49 nautical miles (91 kilometers) west of the 
Golden Gate and occupies an area of approximately 6.5 square nautical 
miles (22 square kilometers). Water depths within the SF-DODS range 
from 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, dated 
1983). The north-south axis is approximately four nautical miles (7.5 
kilometers); the east-west axis is 2.5 nautical miles (4.5 kilometers).
    The SF-DODS is an important component of the LTMS. The LTMS is a 
cooperative interagency planning process for dredged material 
management that incorporates concerns and issues of a wide range of 
stakeholders, including navigation and fishing interests, environmental 
organizations and the general public. The LTMS seeks to develop a 
comprehensive, technically feasible, environmentally suitable, and 
economically prudent long-range approach to meeting the region's 
dredged material disposal needs.
    In its August 11, 1994 Final Rule, EPA designated the SF-DODS for 
use for a period of 50 years, with an interim capacity of six million 
cubic yards per calendar year until December 31, 1996. Because the LTMS 
regional planning effort was not completed by that date, the SF-DODS 
designation was subsequently extended (by Final Rule dated December 30, 
1996, 61 FR 68964) at an interim annual volume limit of 4.8 million 
cubic yards until December 31, 1998. The reason for revising the volume 
limit from six to 4.8 million cubic yards was the revised and 
substantially decreased estimate of the long term need for ocean 
disposal of dredged material, resulting primarily from military base 
closures in the region.
    Since the August 11, 1994 and December 30, 1996 Final Rules, 
substantial effort has been made toward development of a comprehensive 
dredged material management approach for the region. The federal and 
state LTMS agencies have prepared the Final LTMS EIS/R which was 
published in October 1998. The LTMS EIS/R

[[Page 23032]]

evaluates dredged material management options for the San Francisco Bay 
Region over the next 50 years, and contains a comprehensive evaluation 
of alternatives for dredged material disposal in the San Francisco Bay 
area, including ocean disposal, in-Bay disposal (placement at 
designated sites within the San Francisco Bay Estuary that are managed 
under section 404 of the Clean Water Act), and upland disposal or 
beneficial reuse. The alternatives evaluated in the LTMS EIS/R include 
varying levels of dredged material disposal or reuse in each of these 
three placement environments. The potential environmental and 
socioeconomic effects of each alternative were evaluated in the EIS/R. 
Based on these analyses, the environmentally preferred alternative (and 
the selected action) calls for significantly reducing in-Bay disposal 
and significantly increasing beneficial reuse and/or upland disposal. 
Specifically, the LTMS selected alternative includes a long-term goal 
of 20% in-Bay disposal, 40% beneficial reuse (and/or upland disposal), 
and 40% ocean disposal, primarily at the SF-DODS.
    The LTMS EIS/R recognized, however, that beneficial reuse of 
dredged material, especially in the earlier years of LTMS 
implementation, will not always be a practicable alternative. 
Currently, only limited opportunities for beneficial use of dredged 
material exist in the Bay area. Although several reuse projects are in 
the planning stages, their specific capacities and the time frames of 
their availability are uncertain. In addition, the costs associated 
with reuse options may render them not practicable for certain projects 
or entities. For these reasons, a relatively higher proportion of 
aquatic (ocean plus in-Bay) disposal than called for as the long term 
goal under the LTMS selected alternative is expected to be necessary 
until substantial new upland disposal or reuse capacity becomes 
available.
    EPA has determined that disposal of suitable dredged material at 
the SF-DODS presents less risk of adverse environment impact than does 
in-Bay disposal (see for example, Section 6.1 of the LTMS Final EIS/R). 
Therefore, to the extent that disposal at the SF-DODS is practicable, 
it may be the least environmentally damaging alternative, and in-Bay 
disposal of dredged material may not be permitted under the Clean Water 
Act section 404(b)(1) Guidelines (40 CFR part 230). Consequently, EPA 
has determined that there is a need for continued availability of the 
SF-DODS for dredged material disposal at the annual volume limit of 4.8 
million cubic yards, and that this disposal volume limit is an 
important aspect of the regional LTMS planning effort and necessary for 
its success. Today's action is primarily intended to set a permanent 
annual volume limit that will allow the SF-DODS to accommodate dredging 
projects for which beneficial reuse (and/or upland disposal) is not 
practicable, while minimizing the amount of dredged material disposed 
in-Bay. In addition, EPA is also proposing several changes that clarify 
the Site Management and Monitoring Plan (SMMP) for the SF-DODS, and 
that provide enhanced environmental protection.

C. Disposal Volume Limit

    The proposed annual disposal limit for the SF-DODS (as a 
permanently designated site) is 4.8 million cubic yards. This volume is 
considerably less than the 6 million cubic yards per year originally 
determined to be environmentally acceptable for the SF-DODS. To date, 
project-specific, annual, and confirmatory monitoring efforts have 
indicated that disposal at the SF-DODS has not resulted in significant 
adverse environmental impacts, consistent with the conclusions of the 
original (1993) site designation EIS.
    A number of disposal violations have occurred since the SF-DODS was 
designated in 1994. However, considering that nearly 2,500 barge loads 
have been disposed at the site over the past three years 1, 
violations have been relatively rare. Furthermore, EPA has vigorously 
pursued enforcement of permit violations and will continue to do so.
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    \1\ For example, during the Oakland Harbor 42 foot deepening 
project, EPA noted approximately 10 disposal incidents outside the 
original target area, but within the SF-DODS site, two incidents 
outside the disposal site, but also outside of the Marine 
Sanctuaries, and two disposal incidents within the Gulf of the 
Farallones National Marine Sanctuary. Two incidents resulted, at 
least in part, from weather- or equipment-related emergencies. 
Similarly, EPA is aware of only two disposal incidents arising from 
the recent Richmond Harbor deepening project which were both the 
result of mechanical failures.
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    Public comments on the LTMS EIS/R and on the draft SF-DODS Site 
Management and Monitoring Plan Implementation Manual expressed the 
concern that the original SF-DODS site designation EIS (EPA, 1993) 
contained an inaccurate evaluation of potential impacts due to 
increased disposal-related vessel traffic to and from the SF-DODS. 
Specifically, the original site designation EIS concluded that vessel 
traffic in the area would increase by only approximately two percent as 
a result of trips to the SF-DODS. (The 1998 LTMS EIS/R assumed a worst-
case situation of approximately three times the average disposal 
frequency evaluated in the SF-DODS EIS.) One commenter, using vessel 
traffic information summarized in the SF-DODS EIS, calculated that 
worst-case overall vessel traffic increases in the Western Traffic Lane 
due to dredged material transport could be as great as 77 percent of 
the existing traffic. The commenter was concerned that this vessel 
traffic increase could result in significant disturbance-related 
impacts, especially to seabirds and marine mammals.
    EPA has re-evaluated the potential vessel traffic increase, and the 
potential for this increase to result in adverse environmental impacts. 
This evaluation, which is presented in detail in the response to 
comments on the LTMS EIS/R, corroborates the EIS/R commenter's 
calculations and suggests that overall traffic increases may be between 
110 and 162 percent. Nevertheless, EPA has determined that significant 
adverse impacts are unlikely to result from even the worst-case vessel 
traffic increases potentially associated with the proposed 4.8 million 
cubic yard annual disposal volume limit, for the following reasons:

     The worst-case increase in vessel traffic is 
significant in terms of absolute numbers. However, the majority of 
other vessels using the Western Traffic Lane (i.e., the one used by 
dredged material disposal-related vessels) are considerably larger 
in size, travel faster, carry cargo that is likely to be more 
dangerous to the aquatic environment if spilled or otherwise 
discharged, and generally are expected to result in a greater 
potential for disturbance to birds and mammals along the route to 
the SF-DODS than do the relatively small and slow-moving tugs and 
barges transporting dredged material. For example, as documented in 
the LTMS Final EIS/R, large commercial ships (56%) and tankers 
(13.3%) comprised the majority of the vessels using the Western 
Transit Lane during the period of 1980 through 1991.2
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    \2\ Data are from the Final Environmental Impact Statement for 
Designation of a Deep Water Ocean Dredged material Disposal Site off 
San Francisco, California (August 1993).
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     Monitoring to date, including regional environmental 
monitoring and observers on dredged material disposal vessels, 
particularly during years of high disposal activity, has confirmed 
that no adverse effects to seabirds and marine mammals have occurred 
in terms of distraction, stress or alteration of behavior. 
Furthermore, seabird and marine mammal monitoring during transits to 
the SF-DODS will continue, and in some cases may increase, as a 
result of proposed changes to Mandatory Condition #12 (see below).

[[Page 23033]]

D. Other Technical Changes to the SF-DODS SMMP

    SMMP Implementation Manual: EPA proposes to clarify the SF-DODS 
Rule to ensure that permittees use the most current information 
available regarding site management and monitoring by explicitly 
directing them to adhere to requirements contained in the current 
version of the SMMP Implementation Manual. EPA intends to use the 
Implementation Manual as the primary vehicle for addressing new 
technology, making changes resulting from site monitoring, and 
incorporating other improvements. In this way, EPA can effect necessary 
modifications in the most expedient and efficient manner.
    Surface Target Area: EPA is proposing modifications to Mandatory 
Condition #5 to reduce the surface target area of the SF-DODS from the 
existing radius of 1,000 meters to a circle with a radius of 600 
meters. EPA's intent is to ensure that dredged material deposition 
outside of the SF-DODS boundary is minimized.
    Acceptable Sea State: A number of commenters to the SF-DODS SMMP 
Implementation Manual and the LTMS EIS/R expressed concern regarding 
the maximum acceptable sea state for transit to the SF-DODS. They felt 
that the existing limits of ``gale warning'' and seas ``over 18 feet'' 
were not restrictive enough to minimize spillage and accidents. The 
Corps has incorporated revised acceptable sea states in its contracts 
for recent dredging projects and EPA has clarified sea states in the 
SMMP Implementation Manual to address these concerns. EPA proposes to 
codify a more restrictive sea state limit by modifying Mandatory 
Condition #1 to specifically limit the acceptable wave height to a 
maximum of 16 feet. Improvements in technology may result in changes to 
particular characteristics of the acceptable sea state (e.g., wave 
period). EPA will update the SMMP Implementation Manual to incorporate 
these changes, as appropriate.
    Scow Loading and Certification: EPA and the Corps have implemented 
several other modifications to dredging and disposal operations as a 
result of experience gained from monitoring and managing the SF-DODS to 
date. We are proposing revisions to Mandatory Condition #2 to clarify 
dredged material disposal vessel loading limitations and to include 
more specific provisions for inspections and written certification of 
each disposal vessel.
    Distance from Farallon Islands: The U.S. Coast Guard has noted that 
EPA does not have authority to restrict vessel traffic within already 
existing designated marine traffic lanes. A portion of the existing 
traffic lane used to transport material to the SF-DODS overlaps the 
three mile limit around the Farallon Islands. Therefore, EPA is 
proposing a change to Mandatory Condition #4 to reflect that the 
permittee must be at all times within the traffic lane, but is 
encouraged to remain at least three miles from the Farallon Islands 
whenever possible, consistent with safe navigation practices.
    Navigation Systems: Previous experience with disposal at SF-DODS 
has indicated to EPA that some permittees and/or their contractors may 
not be interpreting the details of this condition as EPA intended. 
Therefore, we propose to clarify our intent by providing more specific 
information in the condition.
    Monitoring During Transit: EPA proposes to clarify Mandatory 
Condition #12 to ensure continued and representative monitoring of 
birds and marine mammals during transit of dredged material vessels to 
the SF-DODS and to focus monitoring effort during times when transport 
of material is high. We intend to ensure that observers are present on 
a sufficient number of disposal vessel trips to characterize fully the 
potential impact of disposal site use and transit on seabirds and 
marine mammals, taking into account, to the extent feasible, seasonal 
variations in such potential impacts.
    Violation Notification: In response to a request from the National 
Oceanic and Atmospheric Administration, EPA is proposing to modify 
Mandatory Condition #11 to specifically require permittees to notify 
the Sanctuary Manager within 24 hours of any permit violation which 
occurs within the boundaries of either the Gulf of the Farallones 
National Marine Sanctuary or the Monterey Bay National Marine 
Sanctuary. Furthermore, EPA will continue to inform the Sanctuary 
Managers of all violations, both within and outside of the Sanctuaries.
    Reporting Requirements: EPA is proposing to modify Mandatory 
Condition #13 to specifically require permittees to provide all 
pertinent information related to the dredging and dredged material 
disposal to the agencies. This will ensure that EPA and the Corps of 
Engineers have adequate data to determine if permit violations have 
occurred and to correct such violations at the earliest possible time.

E. Ocean Dumping Site Designation Criteria

    Five general criteria and 11 specific site selection criteria are 
used in the selection and approval of ocean disposal sites for 
continued use (40 CFR 228.5 and 40 CFR 228.6(a)). As described in the 
site designation EIS, the SF-DODS was specifically selected as the 
alternative which best complies with these criteria.
    Monitoring activities conducted pursuant to the requirements of the 
SF-DODS SMMP have shown that the SF-DODS is in compliance with the site 
designation criteria and is performing as predicted in the site 
designation EIS. For example, seafloor mapping indicates that bulk of 
the dredged material has landed within the site boundary and has not 
been transported offsite thereafter. Deposits exceeding 17 centimeters 
in thickness have been identified only at the center of the SF-DODS and 
no deposits thicker than the five centimeter threshold established in 
the site designation Final Rule have been detected at or outside of the 
site boundary. No apparent changes in the basic successional stage of 
the native benthic communities attributable to dredged material 
disposal have been observed outside the site boundary. Therefore, any 
significant disturbances associated with dredged material disposal are 
limited to within the site boundary. In addition, water column studies 
have confirmed that plumes resulting from disposal operations dissipate 
rapidly and that the suspended sediment concentration of plumes 
decreases to ambient levels shortly after disposal.
    Vessel traffic associated with disposal operations has not 
interfered with overall navigation in the region and has had no 
significant impact on marine mammals, birds, fish or other flora or 
fauna in the general region of the SF-DODS. Moreover, management 
actions taken by EPA and codified in today's proposed Rule further 
reduce the potential for adverse impacts.
    EPA has determined that, in general, disposal of suitable dredged 
material at the SF-DODS is less environmentally damaging than in-Bay 
disposal (see for example, Section 6.1 in the LTMS Final EIS/R). 
Therefore, use of the SF-DODS for disposal of suitable dredged material 
has reduced potential cumulative adverse impacts to the aquatic 
environment. Use of the SF-DODS during 1996, 1997 and 1998 resulted in 
a total of approximately 5.7 million cubic yards of dredged material 
not being disposed at in-Bay sites.
    Taken together, the evaluations presented in the site designation 
EIS and Final Rule, and the site monitoring results to date, confirm 
that the SF-DODS is performing as predicted and that it continues to 
meet the general and

[[Page 23034]]

specific site designation criteria of 40 CFR 228.5 and 228.6. 
Furthermore, EPA Region IX has determined that it is appropriate to 
designated a permanent annual disposal volume limit of 4.8 million 
cubic yards for the SF-DODS.
    Management of the site continues to 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 the requirements defined in the Final Rule. The 
requirement for compliance with the Ocean Dumping Criteria of the MPRSA 
may not be superseded by the provisions of the LTMS or any future 
comprehensive regional management plan for dredged material. EPA also 
emphasizes that ocean disposal site designation does not constitute or 
imply EPA Region IX's or the Corps San Francisco District's approval of 
ocean disposal of dredged material from any project. Before disposal of 
any dredged material at the SF-DODS may occur, EPA Region IX and the 
Corps San Francisco District must evaluate the proposed project 
according to the Ocean Dumping Criteria (40 CFR part 227) adopted 
pursuant to the MPRSA. EPA Region IX or the Corps San Francisco 
District will not allow ocean disposal of material if either agency 
determines that the Ocean Dumping Criteria are not met.

F. Regulatory Requirements

1. Consistency with the Coastal Zone Management Act

    EPA prepared a Coastal Zone Consistency Determination (CCD) 
document based on information presented in the site designation EIS 
(August 1993). The CCD evaluated whether the proposed action--
designation of ``Alternative Site 5'' (now SF-DODS) as described in the 
site designation EIS as an ocean disposal site for up to 50 years, with 
an annual capacity of six million cubic yards of dredged material 
meeting ocean disposal criteria--would be consistent with the 
provisions of the Coastal Zone Management Act. The CCD was formally 
presented to the California Coastal Commission (Commission) at their 
public hearing April 12, 1994. The Commission staff report recommended 
that the Commission concur with EPA's CCD, which the Commission did by 
a unanimous vote. Because the approved CCD was based on 50 years of 
site use at up to six million cubic yards of material annually, and 
none of the provisions in this proposed amendment exceed these 
parameters, the effects of today's proposal are well within the scope 
of the prior review and do not require further Commission review.

2. Endangered Species Act Consultation

    During development of the site designation EIS, EPA consulted with 
the National Marine Fisheries Service (NMFS) and the U.S. Fish and 
Wildlife Service (FWS) pursuant to the provisions of the Endangered 
Species Act (ESA), 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 species. This 
consultation process is fully documented in the August 1993 site 
designation EIS. NMFS and FWS concluded that none of the three 
alternative disposal sites, including the SF-DODS, if designated and 
used for disposal of dredged material meeting the criteria for ocean 
disposal, would likely jeopardize the continued existence of any 
federally listed species.
    The results of over four years of monitoring data indicate that 
disposal of dredged material at the SF-DODS has not had an adverse 
impact on federally listed or candidate species, nor their designated 
critical habitat.
    The ESA consultation was based on site use of up to six million 
cubic yards of dredged material per year, for 50 years. Since the 
action now proposed does not exceed these parameters and because 
conditions have not changed for any of the listed or candidate 
threatened or endangered species potentially affected by disposal site 
use, the effects of today's proposal are well within the scope of the 
original consultation and do not require further Endangered Species Act 
consultation.

G. Administrative Review

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'', and 
therefore subject to OMB review and other requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to lead to a rule that may:

    (a) 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;
    (b) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs, or the rights and obligations 
of recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the Presidents priorities, or the principles set forth in 
the Executive Order.

    This proposed amendment should have minimal impact on permittees. 
Clarifications contained herein do not substantively alter the intent 
of the Rule nor its interpretation, and in general, codify actions that 
are already being taken. The annual volume limitation merely makes 
permanent the temporary volume set in the December 30, 1996 Rule 
amendment (61 FR 68964). Consequently, EPA has determined that this 
proposed Rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866.

2. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) provides that whenever an 
agency promulgates a final rule under 5 U.S.C. 553, the agency must 
prepare a regulatory flexibility analysis (RFA) unless the head of the 
agency certifies that the proposed Rule will not have a significant 
economic impact on a substantial number of small entities (5 U.S.C. 604 
and 605). The amended site designation would only have the effect of 
clarifying an existing Rule and setting a permanent annual disposal 
volume, providing a continuing disposal option for dredged material. 
Consequently, EPA's proposed action will not impose any additional 
economic burden on small entities. For this reason, the Regional 
Administrator certifies, pursuant to section 605(b) of the RFA, that 
the proposed Rule will not have a significant economic impact on a 
substantial number of small entities.

3. 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 OMB. Since the proposed 
Rule would not establish or modify any information or record-keeping 
requirements, but only clarifies existing requirements, it is not 
subject to the provisions of the Paperwork Reduction Act.

4. The Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L.

[[Page 23035]]

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 
year.
    This proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
tribal governments or the private sector. As described elsewhere in 
this preamble, today's proposed Rule would only have the effect of 
clarifying an existing Rule and setting a permanent annual disposal 
volume, providing a continuing disposal option for dredged material. 
Consequently, it imposes no new enforceable duty on any State, local or 
tribal governments or the private sector. Similarly, EPA has also 
determined that this Rule contains no regulatory requirements that 
might significantly or uniquely affect small government entities. Thus, 
the requirements of section 203 of the UMRA do not apply to this Rule.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: March 24, 1999.
Alexis Strauss,
Acting Regional Administrator, Region IX.
    In consideration of the foregoing, chapter I of title 40 of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 228--[AMENDED]

    1. The authority citation for part 228 continues to read as 
follows:

    Authority: 33 U.S.C. 1412 and 1418.


Sec. 228.15  [Amended]

    2. Section 228.15 is amended in paragraph (l)(3)(vi) by adding a 
sentence before the last sentence; by revising paragraph (l)(3)(vii); 
and revising paragraphs (l)(3)(viii)(A)(1), (2), (4), (5), (7), (11), 
(12), and (13) to read as follows:


Sec. 228.15  Dumping sites designated on a final basis.

* * * * *
    (1) * * *
    (3) * * *
    (vi) * * * Adherence to the provisions of the most current SMMP 
Implementation Manual, including mandatory permit conditions, site 
monitoring activities, and any other condition(s) EPA or the Corps have 
required as part of the project authorization or permit, is a 
requirement for use of the SF-DODS. * * *
    (vii) Type and capacity of disposed materials. Site disposal 
capacity is 4.8 million cubic yards of suitable dredged material per 
year for the remaining period of site designation. This limit is based 
on considerations in the regional Long Term Management Strategy for the 
placement of dredged material within the San Francisco Bay region, and 
on monitoring of site use since the SF-DODS was designated in 1994.
    (viii) * * *
    (A) * * *
    (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 trips 
shall be initiated when the National Weather Service has issued a gale 
warning for local waters during the time period necessary to complete 
dumping operations, or when wave heights are 16 feet or greater. The 
permittee must consult the most current version of the SMMP 
Implementation Manual for additional restrictions and/or clarifications 
regarding other sea state parameters, including, but not limited to 
wave period.
    (2) All vessels used for dredged material transportation and 
disposal must be loaded to no more than 80 percent by volume of the 
vessel. Before any disposal vessel departs for the SF-DODS, an 
independent quality control inspector must certify in writing that the 
vessel meets the conditions and requirements of a certification 
checklist that contains all of the substantive elements found in the 
example contained in the most current SMMP Implementation Manual. For 
the purposes of paragraph (l)(3)(viii) of this section, ``independent'' 
means not an employee of the permittee or dredging contractor; however, 
the Corps of Engineers may provide inspectors for Corps of Engineers 
dredged material disposal projects.
* * * * *
    (4) Disposal vessels in transit to and from the SF-DODS should 
remain at least three nautical miles from the Farallon Islands whenever 
possible. Closer approaches should occur only in situations where the 
designated vessel traffic lane enters the area encompassed by the 3-
mile limit, and where safety may be compromised by staying outside of 
the 3-mile limit. In no case may disposal vessels leave the designated 
vessel traffic lane.
    (5) When dredged material is discharged within the SF-DODS, no 
portion of the vessel from which the materials are to be released 
(e.g., hopper dredge or towed barge) can be further than 1,900 feet 
(600 meters) from the center of the target area at 37 deg.39' N, 
123 deg.29' W.
* * * * *
    (7) Disposal vessels shall use an appropriate navigation system 
capable of indicating the position of the vessel carrying dredged 
material (for example, a hopper dredged vessel or towed barge) with a 
minimum accuracy and precision of 100 feet during all disposal 
operations. The system must also indicate the opening and closing of 
the doors of the vessel carrying the dredged material. If the 
positioning system fails, all disposal operations must cease until the 
navigational capabilities are restored. The back-up navigation system, 
with all the capabilities listed in this condition, must be in place on 
the vessel carrying the dredged material.
* * * * *
    (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 violation. If any anticipated or 
actual permit violations occur within the Gulf of the Farallones or the 
Monterey Bay National Marine Sanctuaries, the permittee must also 
report any such violation to the respective Sanctuary Manager within 24 
hours. 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 Mandatory Conditions in paragraphs (l)(3)(viii)(A)(8) and (9) of 
this section.
    (12) Permittees, and the Corps in its Civil Works projects, must 
make arrangements for independent observers to be present on disposal 
vessels for the purpose of conducting shipboard surveys of seabirds and 
marine mammals. Observers shall employ standardized monitoring 
protocols, as referenced in the most current SMMP Implementation 
Manual. At a minimum, permittees shall ensure that independent 
observers are present on at least one disposal trip during each 
calendar month that disposal occurs, AND on average at least once every 
25 vessel trips to the SF-DODS.

[[Page 23036]]

    (13) At the completion of short-term dredging projects, at least 
annually for ongoing projects, and at any other time or interval 
requested by the District Engineer or Regional Administrator, 
permittees shall prepare and submit to the District Engineer and 
Regional Administrator a report that includes complete records of all 
dredging, transport and disposal activities, such as navigation logs, 
disposal coordinates, scow certification checklists, and other 
information required by permit conditions. Electronic data submittals 
may be required to conform to a format specified by the agencies. 
Permittees shall include a report indicating whether any dredged 
material was dredged outside the areas authorized for dredging or was 
dredged deeper than authorized for dredging by their permits.
* * * * *
[FR Doc. 99-10729 Filed 4-28-99; 8:45 am]
BILLING CODE 6560-50-P