[Federal Register Volume 67, Number 88 (Tuesday, May 7, 2002)]
[Rules and Regulations]
[Pages 30597-30599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11299]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7207-5]


Ocean Dumping; Site Modification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA today modifies the designation of an Ocean Dredged 
Material Disposal Site (ODMDS)in the Atlantic Ocean offshore 
Charleston, South Carolina. The modification is to amend the 
restriction on use and shorten the site's name. This action is 
necessary to allow for disposal activities to continue as previously 
planned by the site's Task Force for management and monitoring.

EFFECTIVE DATE: This final rule is effective on June 6, 2002.

ADDRESSES: Send comments to: Wesley B. Crum, Chief, Coastal Section, 
Water Management Division, U.S. Environmental Protection Agency Region 
4, 61 Forsyth Street, Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT: Gary W. Collins, 404/562-9395.

SUPPLEMENTARY INFORMATION:

A. 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 the authority to designate sites where ocean 
disposal may be permitted. On December 23, 1986, the Administrator 
delegated the authority to the Regional Administrator of the Region in 
which sites are located. The EPA Ocean Dumping Regulations promulgated 
under MPRSA (40 CFR chapter I, subchapter H, Sec. 228.11) state that 
use of disposal sites may be modified.
    Two ODMDS's were ultimately designated for Charleston in 1987. One 
was a 12-square mile site for deepening material. The second site was 
3-square miles and was placed within the 12-square mile site. During 
the 1980's, additional benthic and sedimentological studies were 
conducted by the South Carolina Department of Natural Resources 
(SCDNR). In 1987, live bottoms were identified in the western portion 
of the 12-square mile site. Concerns regarding impacts to the living 
resources at the ODMDS encouraged EPA to place a restriction on the use 
of the 12-square mile site. The Final Rule regarding this restriction 
was published in the Federal Register March 5, 1991 stating, ``Disposal 
shall be limited to dredged material from the Charleston Harbor area. 
All dredged material, except entrance channel material, shall be 
limited to that part of the site east of the line between coordinates 
32 deg.39'04" N, 79 deg.44'25" W and 32 deg.37'24" N, 79 deg.45'30" W 
unless the materials can be shown by sufficient testing to contain 10% 
or less of fine material (grain size of less than 0.074mm) by weight 
and shown to be suitable for ocean disposal.'' This bisecting line was 
an immediate effort by EPA to protect live bottom resources initially 
reported by fishermen. The line was set with limited knowledge of the 
exact location and extent of those resources, and was set in a location 
that was believed to be as protective as possible at that time.

[[Page 30598]]

    During this same time frame, an interagency group (EPA, SCDNR, COE 
and State Ports Authority) began working together to develop a 
monitoring and management plan (MMP) for the ODMDS. As part of this MMP 
process, construction of an L-shaped berm was developed approximately 
midway within the ODMDS. The COE began construction of the L-shaped 
berm using consolidated material from the last (42-foot) deepening 
project. The berm was evident on 1993 bathymetry. Also, as part of the 
MMP, the interagency group began looking for an area within the ODMDS 
for disposal of dredged material which would have the least impacts on 
the live bottom resources located in the western region of the site. A 
4-square mile area (disposal box) was identified within the eastern 
half of the 12-square mile designated ODMDS and placed in position with 
the L-shaped berm as part of the western boundary. This location was 
approved by all the agencies involved, and placed where it would impact 
minimal reef habitat. At that time, the bisecting line should have been 
moved, but due to an oversight, it was not.
    In 1995, EPA de-designated the smaller 3-square mile site and 
modified the larger site to allow for continued disposal of all 
material, not just deepening material. However, the COE agreed not to 
place any material outside of the 4-square mile disposal box. During 
the 1999-2000 (deepening project) dredging, a number of unauthorized 
dumps occurred to the west of the 4-square mile site. To date, studies 
indicate that some fine-grained material is present to the west of the 
4-square mile site. It is unknown at this time whether the disposal 
material is moving from the ODMDS over the berms, from the berms, is 
part of the unauthorized dumps that occurred in 1999 and 2000, whether 
it is from the dispersion of the material during disposal activities at 
the site, or whether it is some combination of these four 
possibilities. Subsequent investigation and studies conducted by SCDNR 
to date have not identified adverse impacts at index reef sites being 
monitored. Other samples of the sand bottom benthic communities in 
areas that now have muddy sediments are still being processed.
    The proposed rule for this action was published in the Federal 
Register on October 10, 2001 (66 FR 51628). Only one letter was 
received during the 45 day comment period and was supportive of this 
action.

B. EIS Determination

    EPA has voluntarily committed to prepare Environmental Impact 
Statements (EIS) in connection with the designation of ocean disposal 
sites (39 FR 16186 (May 7, 1974)). The need for an EIS in the case of 
modifications is addressed in 39 FR 37420 (October 21, 1974), section 
1(a)(4). If the change is judged sufficiently substantial by the 
responsible official, an EIS is needed.
    The continued use of the Charleston ODMDS is vital to the 
management goals of the Plan. EPA believes these changes do not warrant 
the preparation of an Environmental Impact Statement (EIS).
    EPA's primary concern is to provide an environmentally acceptable 
ocean disposal site for Charleston Harbor area dredging projects on a 
continued basis.

C. Site Modification

    The site modification for the Charleston Harbor Deepening Project 
ODMDS is the removal of the line that restricts disposal of fine-
grained material and the addition of four corner coordinates (4 square-
mile disposal box) that will define where all dredged material must be 
placed within the ODMDS. In addition, the site's official name is being 
shortened to the Charleston ODMDS.

D. Regulatory Assessments

1. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, EPA is required to perform a 
Regulatory Flexibility Analysis for all rules that may have a 
significant impact on a substantial number of small entities. EPA has 
determined that this action will not have a significant impact on small 
entities since the modification will only have the effect of providing 
an environmentally acceptable disposal option for dredged material on a 
continued basis. Consequently, this Rule does not necessitate 
preparation of a Regulatory Flexibility Analysis.

2. Executive Order 12866

    Under Executive Order 12866, EPA must determine whether the 
regulatory action is ``significant'' and therefore subject to OMB 
review and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

3. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. As 
described elsewhere in this preamble, today's final rule would only 
have the effect of providing a continual use of an ocean disposal site 
pursuant to section 102(c) of MPRSA. Thus, Executive Order 13175 does 
not apply to this rule.

4. Executive Order 13045

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not have any reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. As described elsewhere in this 
preamble, today's final rule would only have the effect of providing a 
continual use of an ocean disposal site pursuant to section 102(c) of 
MPRSA.

[[Page 30599]]

5. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. As described elsewhere in this 
preamble, today's final rule would only have the effect of providing a 
continual use of an ocean disposal site pursuant to section 102(c) of 
MPRSA. Thus, Executive Order 13132 does not apply to this rule. 
Although section 6 of Executive Order 13132 does not apply, EPA did 
consult with State officials in developing this rule and no concerns 
were raised.

6. 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. 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. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 6, 2002.
    This Final Rule does not contain any information collection 
requirements subject to Office of Management and Budget review under 
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: April 12, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    In consideration of the foregoing, subchapter H of chapter I of 
title 40 is amended as follows.

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 by revising the paragraph heading of 
paragraph (h)(5) and revising paragraphs (h)(5)(v) and (vi) to read as 
follows:


Sec. 228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (5) Charleston, SC, Ocean Dredged Material Disposal Site.
* * * * *
    (v) Period of Use: Continued use.
    (vi) Restriction: Disposal shall be limited to dredged material 
from the Charleston Harbor area. All dredged materials must be placed 
within the box defined by the following four corner coordinates 
(NAD83): 32.65663 deg. N, 79.75716 deg. W; 32.64257 deg. N, 
79.72733 deg. W; 32.61733 deg. N, 79.74381 deg. W; and 32.63142 deg. N, 
79.77367 deg. W. Additionally, all disposals shall be in accordance 
with all provisions of disposal placement as specified by the Site 
Management Plan, which is periodically updated.
* * * * *
[FR Doc. 02-11299 Filed 5-6-02; 8:45 am]
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