[Federal Register Volume 67, Number 129 (Friday, July 5, 2002)]
[Rules and Regulations]
[Pages 44770-44773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16855]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7241-2]


Ocean Dumping; Site Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA today designates a new Ocean Dredged Material Disposal 
Site (ODMDS) in the Atlantic Ocean offshore Wilmington, North Carolina, 
as an EPA-

[[Page 44771]]

approved ocean dumping site for the disposal of suitable dredged 
material. This action is necessary to provide an acceptable ocean 
disposal site for consideration as an option for dredged material 
disposal projects in the greater Cape Fear River, North Carolina 
vicinity. This site designation is for an indefinite period of time, 
but the site is subject to continuing monitoring to insure that 
unacceptable adverse environmental impacts do not occur.

DATES: This final rule is effective on August 5, 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 October 1, 1986, the Administrator 
delegated the authority to designate ocean disposal sites to the 
Regional Administrator of the Region in which the sites are located. 
This designation of a new site offshore Wilmington, North Carolina, 
which is within Region 4, is being made pursuant to that authority.
    The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR 
chapter I, subchapter H, Sec. 228.4) state that ocean dumping sites 
will be designated by promulgation in this part 228. The existing ODMDS 
was designated and has been used since 1987. However, site capacity 
limitations and a proposed realignment of the ocean bar channel negate 
the utility of the existing site. The details of these issues can be 
found in the ``Final Environmental Impact Statement for the New 
Wilmington Ocean Dredged Material Disposal Site Designation.''

B. EIS Development

    Section 102(2)(C) of the National Environmental Policy Act (NEPA) 
of 1969, as amended, 42 U.S.C. 4321 et seq., requires that federal 
agencies prepare an Environmental Impact Statement (EIS) on proposals 
for legislation and other major federal actions significantly affecting 
the quality of the human environment. The object of NEPA is to build 
into the Agency decision making process careful consideration of all 
environmental aspects of proposed actions. While NEPA does not apply to 
EPA activities of this type, EPA has voluntarily committed to prepare 
EISs in connection with ocean disposal site designations such as this 
(see 39 FR 16186 (May 7, 1974)).
    EPA, in cooperation with the Wilmington District of the U.S. Army 
Corps of Engineers (COE), has prepared a Final EIS (FEIS) entitled 
``Final Environmental Impact Statement for the New Wilmington Ocean 
Dredged Material Disposal Site Designation.'' On November 30, 2001, the 
Notice of Availability (NOA) of the FEIS for public review and comment 
was published in the Federal Register (66 FR 59787 (November 30, 
2001)). Anyone desiring a copy of the EIS may obtain one from the 
address given above. The public comment period on the final EIS closed 
on December 31, 2001.
    The proposed rule was published for public review and comment in 
the Federal Register (67 FR 15348 (April 1, 2002)). No comments were 
received.
    This rule permanently designates the continuing use of the new 
ODMDS near Wilmington, North Carolina. The purpose of the action is to 
provide an environmentally acceptable option for the continued ocean 
disposal of dredged material. The need for the permanent designation of 
a new Wilmington ODMDS is based on a demonstrated COE need for ocean 
disposal of maintenance dredged material from the Federal navigation 
projects in the greater Cape Fear River area and the issues raised by 
site capacity and channel realignment. However, every disposal activity 
by the COE is evaluated on a case-by-case basis to determine the need 
for ocean disposal for that particular case. The need for ocean 
disposal for other projects, and the suitability of the material for 
ocean disposal, will be determined on a case-by-case basis as part of 
the COE's process of issuing permits for ocean disposal for private/
federal actions and a public review process for their own actions.
    For the new Wilmington ODMDS, the COE and EPA would evaluate all 
federal dredged material disposal projects pursuant to the EPA criteria 
given in the Ocean Dumping Regulations (40 CFR parts 220 through 229) 
and the COE regulations (33 CFR 209.120 and 335-338). The COE then 
issues Marine Protection, Research, and Sanctuaries Act (MPRSA) permits 
after compliance with regulations is determined to private applicants 
for the transport of dredged material intended for ocean disposal. EPA 
has the right to disapprove any ocean disposal project if, in its 
judgment, the MPRSA environmental criteria (section 102(a)) or 
conditions of designation (section 102(c)) are not met.
    The FEIS discusses the need for this site designation and examines 
ocean disposal site alternatives to the proposed action. Non-ocean 
disposal options have been examined and are discussed in the FEIS.

C. Site Designation

    The site is located approximately 5 nautical miles offshore Bald 
Head Island. The ODMDS occupies an area of about 9.4 square nautical 
miles (nmi2). Water depths within the area range from 35-52 
feet (ft.). The coordinates of the New Wilmington site are as follows:


33 deg.46' N.............................  78 deg.02.5' W
33 deg.46' N.............................  78 deg.01' W
33 deg.41' N.............................  78 deg.01' W
33 deg.41' N.............................  78 deg.04' W.
 


D. Regulatory Requirements

    Pursuant to the Ocean Dumping Regulations, 40 CFR 228.5, five 
general criteria are used in the selection and approval for continuing 
use of ocean disposal sites. Sites are selected so as to minimize 
interference with other marine activities, to prevent any temporary 
perturbations associated with the disposal from causing impacts outside 
the disposal site, and to permit effective monitoring to detect any 
adverse impacts at an early stage. Where feasible, locations off the 
Continental Shelf and other sites that have been historically used are 
to be chosen. If, at any time, disposal operations at a site cause 
unacceptable adverse impacts, further use of the site can be restricted 
or terminated by EPA. The site conforms to the five general criteria.
    In addition to these general criteria in Sec. 228.5, Sec. 228.6 
lists the 11 specific criteria used in evaluating a proposed disposal 
site to assure that the general criteria are met. Application of these 
11 criteria constitutes an environmental assessment of the impact of 
disposal at the site. The characteristics of the site are reviewed 
below in terms of these 11 criteria (the EIS may be consulted for 
additional information).
    1. Geographical position, depth of water, bottom topography, and 
distance from coast (40 CFR 228.6(a)(1)).
    The boundary of the site is given above. The northern boundary of 
the site is located about 5 nmi offshore of Bald Head Island, North 
Carolina. The site is approximatelty 9.4 nmi\2\ in area. Water depth in 
the area ranges from 35-52 ft.
    2. Location in relation to breeding, spawning, nursery, feeding, or 
passage

[[Page 44772]]

areas of living resources in adult or juvenile phases (40 CFR 
228.6(a)(2)).
    Many of the area's species spend their adult lives in the offshore 
region, but are estuary-dependent because their juvenile stages use a 
low salinity estuarine nursery region. Specific migration routes are 
not known to occur within the site. The site is not known to include 
any major breeding or spawning area. Due to the motility of finfish, it 
is unlikely that disposal activities will have any significant impact 
on any of the species found in the area.
    3. Location in relation to beaches and other amenity areas (40 CFR 
228.6(a)(3)).
    The site is located approximately 5 nautical miles from the coast. 
Considering the previous disposal activities of the existing ODMDS and 
further distance that the new disposal site is offshore of beach areas, 
dredged material disposal at the site is not expected to have an effect 
on the recreational uses of these beaches.
    4. Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packing the waste, if 
any (40 CFR 228.6(a)(4)).
    The type of materials to be disposed of within this site is dredged 
material as described in type and quantity by section 2 of the FEIS. 
Disposal would be by hopper dredge or dump scow. All disposals shall be 
in accordance with the approved Site Management and Monitoring Plan 
developed for this site (FEIS, appendix A).
    5. Feasibility of surveillance and monitoring (40 CFR 228.6(a)(5)).
    Due to the relative proximity of the site to shore and its depth, 
surveillance will not be difficult. The Site Management and Monitoring 
Plan (SMMP) for the New Wilmington ODMDS has been developed and was 
included as an appendix in the FEIS. This SMMP establishes a sequence 
of monitoring surveys to be undertaken to determine any impacts 
resulting from disposal activities. The SMMP may be modified for cause 
by the responsible agency. A copy of the SMMP may be obtained at the 
any of the addresses given above.
    6. Dispersal, horizontal transport and vertical mixing 
characteristics of the area including prevailing current direction and 
velocity, if any (40 CFR 228.6(a)(6)).
    A detailed current study, along with fate modelling of dredged 
material, was conducted within the site and can be found described in 
the FEIS. The findings of these studies indicate that transport of 
disposed material should not present any adverse impacts.
    7. Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects) (40 CFR 
228.6(a)(7)).
    The existing ODMDS has been used to dispose of the material from 
the Cape Fear River project for fifteen years. Subsequent monitoring of 
these disposals and the long-term effects show that no adverse impacts 
have, or are likely to occur to the area.
    8. Interference with shipping, fishing, recreation, mineral 
extraction, desalination, fish and shellfish culture, areas of special 
scientific importance and other legitimate uses of the ocean (40 CFR 
228.6(a)(8)).
    The shape of the ODMDS was designed to avoid interference with 
commericial shipping. The location was also selected to move away from 
commercial fishing, particularly trawling bottoms. It is not 
anticipated that the site would interfere with any recreational 
activity. In addition, mineral extraction, fish and shellfish culture, 
and desalination activities do not occur in the area.
    9. The existing water quality and ecology of the site as determined 
by available data or by trend assessment or baseline surveys (40 CFR 
228.6(a)(9)).
    Appropriate water quality and ecological assessments have been 
performed at the site. Site-specific information concerning the water 
quality and ecology at the ODMDS is presented in the FEIS. A copy of 
the FEIS may be obtained at any of the addresses given above.
    10. Potentiality for the development or recruitment of nuisance 
species in the disposal site (40 CFR 228.6(a)(10)).
    The disposal of dredged materials should not attract or promote the 
development of nuisance species. No nuisance species have been reported 
to occur at previously utilized disposal sites in the vicinity.
    11. Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance (40 
CFR 228.6(a)(11)).
    The only resource known to exist in close proximity to the site is 
the wreck of the Virginius. This wreck lies outside the eastern 
boundary of the site. Since no disposal will occur within 600 ft. of 
the boundary, and the wreck lies in shallower water, placement of 
material within the site is not expected to adversely affect it.

E. Site Management

    Site management of the New Wilmington ODMDS is the responsibility 
of EPA as well as the COE. The COE issues permits to private applicants 
for ocean disposal; however, EPA/Region 4 assumes overall 
responsibility for site management.
    The Site Management and Monitoring Plan (SMMP) for the New 
Wilmington ODMDS was developed as a part of the process of completing 
the EIS. This plan provides procedures for both site management and for 
the monitoring of effects of disposal activities. This SMMP is intended 
to be flexible and may be modified by the responsible agency for cause.

F. Action

    The EIS concludes that the site may appropriately be designated for 
use. The site is compatible with the 11 specific and 5 general criteria 
used for site evaluation.
    The designation of the New Wilmington site as an EPA-approved ODMDS 
is being published as Final Rulemaking. Overall management of this site 
is the responsibility of the Regional Administrator of EPA/Region 4.
    It should be emphasized that, if an ODMDS is designated, such a 
site designation does not constitute EPA's approval of actual disposal 
of material at sea. Before ocean disposal of dredged material at the 
site may commence, the COE must evaluate a permit application according 
to EPA's Ocean Dumping Criteria. EPA has the right to disapprove the 
actual disposal if it determines that environmental concerns under 
MPRSA have not been met.
    The New Wilmington ODMDS is not restricted to disposal use by 
federal projects; private applicants may also dispose suitable dredged 
material at the ODMDS once relevant regulations have been satisfied. 
This site is restricted, however, to suitable dredged material from the 
greater Wilmington, North Carolina vicinity.

G. 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

[[Page 44773]]

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.

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 August 5, 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: June 7, 2002.
J.I. Palmer, Jr.,
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 adding paragraph (h)(20) to read as 
follows:


 Sec. 228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (20) New Wilmington, NC; Ocean Dredged Material Disposal Site.
    (i) Location:


33 deg.46' N.............................  78 deg.02.5' W.
33 deg.46' N.............................  78 deg.01' W.
33 deg.41' N.............................  78 deg.01' W.
33 deg.41' N.............................  78 deg.04' W.
 


    (ii) Size: Approximately 9.4 square nautical miles.
    (iii) Depth: Ranges from 35-52 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Wilmington, North Carolina vicinity. Disposal 
shall comply with conditions set forth in the most recent approved Site 
Management and Monitoring Plan.
* * * * *
[FR Doc. 02-16855 Filed 7-3-02; 8:45 am]
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