[Federal Register Volume 64, Number 141 (Friday, July 23, 1999)]
[Rules and Regulations]
[Pages 39927-39934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18606]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-6377-3]


Ocean Dumping; Amendment of Site Designation

AGENCY: Environmental Protection Agency (EPA)

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending 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 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. All aspects of the 
August 11, 1994 SF-DODS designation Final Rule not explicitly amended 
here remain in full effect.

EFFECTIVE DATE: July 23, 1999.

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, SW, 
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
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 is 
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:

------------------------------------------------------------------------
   Examples of potentially
      regulated entities
------------------------------------------------------------------------
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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[[Page 39928]]

    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, amending 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 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 making 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 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

[[Page 39929]]

loads have been disposed at the site over the past three years, 
violations have been relatively rare. Furthermore, EPA has vigorously 
pursued enforcement of permit violations and will continue to do so.
    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 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.

    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 
changes to Mandatory Condition #12 (see below).

D. Other Technical Changes to the SF-DODS SMMP

SMMP Implementation Manual

    EPA is clarifying 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 modifying 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 is codifying 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 revising 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 changing 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 are 
clarifying our intent by providing more specific information in the 
condition.

Monitoring During Transit

    EPA is clarifying 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 modifying

[[Page 39930]]

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 modifying 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 final 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 specific site designation criteria of 40 CFR 228.5 
and 228.6. Furthermore, EPA Region IX has determined that it is 
appropriate to designate 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. Response to Comments

    The proposed Rule was published in the Federal Register on April 
29, 1999. The comment period ended June 1, 1999. A total of two comment 
letters were received.

Annual Volume Limitation

    Both letters received addressed EPA's proposed annual volume limit 
at SF-DODS. One commenter wanted EPA to reduce the annual limit, while 
the other wanted EPA to increase it. The first commenter expressed 
concern that the proposed volume of 4.8 million cubic yards per year 
was too high and requested that EPA set the limit at 3.8 million cubic 
yards. The commenter cited the LTMS agencies' earlier decision to 
consider a maximum of 80 percent of total volume disposed in any one 
placement environment. EPA's decision to reduce the SF-DODS annual 
volume limit from six million cubic yards to 4.8 million cubic yards in 
fact, reflects our commitment to the 80 percent maximum concept. EPA 
revised the annual volume limit in 1996 to reflect new estimates of 
dredging in the Bay area (average annual volume of six million cubic 
yards). Today's 4.8 million cubic yard figure is 80 percent of that 
total. EPA believes that the 4.8 million cubic yard limit, along with 
other controls and requirements included in the Site Management and 
Monitoring Plan, is adequately protective of the marine environment, 
while providing the ``safety valve'' needed to ensure that in-Bay 
disposal is minimized.
    The second commenter believed that EPA's choice of 4.8 million 
cubic yards per year could hamper the LTMS process, particularly in 
years when dredging needs exceed the average. This commenter used 
dredging data from 1991 to 1997 (presumably the same or similar to data 
reported in the LTMS EIS/R) to calculate a maximum likely annual 
dredging volume of nearly eight million cubic yards. Based on this, the 
commenter requested that EPA reestablish the original annual limit of 
six million cubic yards. EPA rejects this argument for several reasons. 
Early years of the data set incorporate dredging volumes associated 
with projects that no longer occur (primarily operations at military 
facilities that are now closed). Therefore, the standard deviation 
calculated by the commenter may no longer provide an appropriate 
estimate of expected dredged material volumes. Moreover, the year 1997 
includes two port deepening projects, each with larger volumes than 
generally associated with maintenance work, which also tend to skew the 
data. EPA believes that the 4.8 million cubic yard limit is 
appropriate, given recent changes in Bay area dredging requirements and 
the high-end estimate

[[Page 39931]]

of future deepening projects used to calculate the average volume of 
material dredged.

Vessel Traffic Impacts

    One commenter, while commending EPA for reducing the surface target 
area and clarifying other conditions, reiterated concerns regarding 
potential impacts associated with transport of dredged material to the 
site. As stated above, as a result of comments on the LTMS EIS/R, EPA 
re-evaluated dredged material transit prior to publishing the final SF-
DODS Rule. Based on this review, we believe that the potential for 
adverse impacts from dredged material vessels using the Western Traffic 
lane are minimal, particularly compared with those associated with 
other users. Risks associated with marine transit occur primarily 
during periods of bad weather and high seas. Vessels such as oil 
tankers and cargo ships are not subject to weather-related regulatory 
constraints, whereas dredged material vessels going to SF-DODS are. 
Moreover, EPA has further restricted the acceptable sea state for 
transport of dredged material to SF-DODS. In addition, EPA has 
strengthened and clarified the monitoring requirements during transport 
to SF-DODS. This monitoring is our best scientific basis for 
determining whether use of SF-DODS results in impacts to marine 
wildlife.

Monitoring Requirements

    Both commenters referred to the Rule's monitoring requirements. One 
commenter objected to EPA's clarification to Mandatory permit condition 
(12) regarding monitoring during transit, suggesting that it was an 
increase in monitoring. This clarification is based on review of prior 
monitoring reports and would not result in any actual increase in the 
average number of monitoring trips that the Corps required during 
either of its recent projects using SF-DODS. In fact, we commend the 
Corps for conducting for adequate and representative monitoring on 
those projects. We amended condition (12) to ensure that all permitees 
provide similar representative monitoring.
    The other commenter requested that EPA provide data on impacts to 
wildlife behavior at reference sites or at SF-DODS prior to 
designation, as a ``frame of reference'' comparison. EPA believes that 
the regional environmental monitoring currently undertaken provides 
such a reference.
    The commenter also indicated that monitoring data from year(s) of 
high site usage are necessary to confirm the conclusions of 1995-1996 
monitoring (during which relatively little disposal at SF-DODS 
occurred). EPA concurs and now has the full report of monitoring from 
1997-1998, during which the highest site use has occurred. This report 
provides supporting evidence of the lack of impacts to wildlife from 
dredged material transit, as originally noted by the monitoring group 
by letter dated February 4, 1999. This commenter also suggested that 
the monitoring data may indicate that marine mammals are avoiding ship 
traffic. We do not expect that this avoidance, if it occurs, is likely 
to significantly disrupt migration, feeding, or other behaviors, as a 
result of the small area of the Western Traffic Lane relative to the 
overall habitat of marine mammals, as well as other wildlife.

Reporting Requirements

    Finally, one commenter expressed concerns regarding language in 
Mandatory permit condition (13) requiring that the EPA or Corps could 
request reports ``at any other time or interval required''. The 
commenter suggested that EPA include in the Rule the conditions under 
which this requirement might be invoked. EPA recognizes the commenter's 
concern that this language might be considered ``arbitrary and 
capricious''. However, we have decided to defer further constraints on 
reporting requirements to the SF-DODS Implementation Plan. EPA has 
decided to retain this broad language in the Rule for subsequent 
clarification as necessary.

G. 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 amendment exceed these parameters, the 
effects of today's rule 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 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 rule are well within the scope of the original consultation and 
do not require further Endangered Species Act consultation.

H. 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;

[[Page 39932]]

    (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 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 
final Rule is not a ``significant regulatory action'' under the terms 
of Executive Order 12866.

2. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Tribal governments are not 
affected in any fashion. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

3. Regulatory Flexibility

    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 final 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 only has 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 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 final Rule 
will not have a significant economic impact on a substantial number of 
small entities.

4. 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 Rule does 
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.

5. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 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 final 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 Rule only has 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.

6. Executive Order 12875

    Today's Rule does not create a mandate on State, local or tribal 
governments. The Rule does not impose any enforceable duties on these 
entities. As described elsewhere in this preamble, today's Rule only 
has 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. Accordingly, the requirements 
of section 1(a) of Executive Order 12875 do not apply to this Rule.

7. Executive Order 13045

    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This Rule is not subject to E.O. 13045 
because it does not establish an environmental standard intended to 
mitigate health or safety risks.

8. Executive Order 12898

    To the greatest extent practicable and permitted by law, and 
consistent with the principles set forth in the report on the National 
Performance Review, each Federal agency shall make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minority populations and low-income populations in the 
United States and its territories and possessions, the District of 
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the 
Mariana Islands.
    This Final Rule only clarifies an existing Rule and sets a 
permanent annual disposal volume at the SF-DODS. Consequently, today's 
action is not subject to further review under E.O. 12898.

9. Compliance With Administrative Procedure Act

    The Administrative Procedure Act (APA), 5. U.S.C. 551 et seq., 
generally requires that substantive rules be

[[Page 39933]]

published 30 days prior to their effective date except:
    ``(1) A substantive rule which grants or recognizes an exemption or 
relieves a restriction; * * * or (3) as otherwise provided by the 
agency for good cause found and published with the rule.'' 5 U.S.C. 
553(d).
    EPA is issuing today's final rule as effective July 23, 1999, under 
the provisions of 5 U.S.C. 553(d). As is explained elsewhere in this 
preamble, today's final Rule is needed to clarify mandatory conditions 
for site use and to set a permanent site volume limit. Continued 
availability of SF-DODS for disposal of suitable dredged material is 
essential to the success of the Long Term Management Strategy for the 
San Francisco Bay area. The site, however, has not been available for 
disposal since December 31, 1998, restricting project proponents' 
disposal options and potentially hindering efficient and 
environmentally-protective planning. In the absence of today's Rule, 
SF-DODS would remain closed to dredged material unless the USACE 
undertakes site selection under MPRSA section 103 or invokes an 
economic waiver (40 CFR 225.3). A number of dredging projects proposing 
to use SF-DODS this calendar year could experience substantial delays 
and/or increase pressures on in-Bay disposal sites. By re-opening SF-
DODS for disposal of suitable dredged material, today's final Rule has 
the effect of removing a restriction and thus meets the exception 
specified in 5 U.S.C. 553(d). In addition, EPA believes today's rule 
meets the ``good cause'' exception of 5 U.S.C. 553(d)(3). As previously 
noted, failure to re-open the site could adversely affect a number of 
proposed projects, including federal civil works maintenance 
activities. Issuing today's final Rule as immediately effective would 
avoid potential disruption of projects, and is in the public interest. 
EPA has determined that there is good cause within the meaning of 5 
U.S.C. 553(d)(3) to issue this Rule as effective July 23, 1999.

10. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure on the rule is 
impracticable, unnecessary or contrary to the public interest. As 
stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of July 23, 
1999. As stated above, failure to re-open SF-DODS to disposal of 
suitable dredged material as expeditiously as possible could adversely 
affect a number of proposed projects, including federal civil works 
maintenance activities. Issuing today's final Rule as immediately 
effective would avoid potential disruption of projects, and is in the 
public interest. EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: June 29, 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 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.

    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

[[Page 39934]]

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.
    (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. 99-18606 Filed 7-22-99; 8:45 am]
BILLING CODE 6560-50-P