[Federal Register Volume 70, Number 175 (Monday, September 12, 2005)]
[Rules and Regulations]
[Pages 53729-53736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18024]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7967-7]


Ocean Dumping; LA-3 Ocean Dredged Material Disposal Site 
Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) today designates LA-
3 as a permanent ocean dredged material disposal site (ODMDS) located 
offshore of Newport Beach, California, managed at a maximum annual 
dredged material disposal quantity of 2,500,000 cubic yards (yd\3\) 
(1,911,000 cubic meters [m\3\]), and adjusts the management of the 
permanently-designated LA-2 ODMDS at an increased maximum annual 
dredged material disposal quantity of 1,000,000 yd\3\ (765,000 m\3\) 
for the ocean disposal of clean dredged material from the Los Angeles 
County and Orange County regions. The availability of suitable ocean 
disposal sites to support ongoing maintenance and capital improvement 
projects is essential for the continued use and economic growth of the 
vital commercial and recreational areas in the region. Dredged material 
will not be allowed to be disposed of in the ocean unless the material 
meets strict environmental criteria established by the EPA and U.S. 
Army Corps of Engineers (USACE).
    The action would shift the center of the permanently-designated LA-
3 site approximately 1.3 nautical miles (nmi) (2.4 kilometers [km]) to 
the southeast of the interim LA-3 site, and encompass a region that is 
already disturbed by dredged material. The permanent site also would be 
located on a flat, depositional plain, and away from the submarine 
canyons, that will be more amenable to surveillance and monitoring 
activities. The LA-2 site is a permanently designated ODMDS that has 
been historically managed at an average annual disposal quantity of 
200,000 yd\3\ (153,000 m\3\) for the disposal of material dredged 
primarily from the Los Angeles/Long Beach Harbor complex. The action 
will allow an increased volume of dredged material to be disposed 
annually at this site. The annual disposal quantity has occasionally 
exceeded the historical annual average due to capital projects from 
both the ports of Los Angeles and Long Beach. Thus, the new maximum 
volume designation would accommodate the projected average annual 
volume requirements as well as provide for substantial annual volume 
fluctuations.

DATES: This final regulation is effective on October 12, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Allan Ota, Dredging and Sediment 
Management Team, U.S. Environmental Protection Agency, Region IX (WTR-
8), 75 Hawthorne Street, San Francisco, CA 94105, telephone (415) 972-
3476 or FAX: (415) 947-3537 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The supporting document for this site 
designation is the Final Environmental Impact Statement for the Site 
Designation of the LA-3 Ocean Dredged Material Disposal Site off 
Newport Bay, Orange County, California. This document is 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. U.S. EPA, Southern California Field Office, 600 Wilshire 
Boulevard, Suite 1460, Los Angeles, CA 90017.
    4. Lloyd Taber-Marina del Rey Library, 4533 Admiralty Way, Marina 
del Rey, CA 90292.
    5. Long Beach Public Library, 101 Pacific Avenue, Long Beach, CA 
90822.
    6. Los Angeles Public Library, Central Library, 630 West 5th 
Street, Los Angeles, CA 90071.
    7. Los Angeles Public Library, San Pedro Regional Branch Library, 
931 South Gaffey Street, San Pedro, CA 90731.
    8. Newport Beach Public Library, Balboa Branch, 100 East Balboa 
Boulevard, Balboa, CA 92661.
    9. Newport Beach Public Library, Central Library, 1000 Avocado 
Avenue, Newport Beach, CA 92660.
    10. Newport Beach Public Library, Corona del Mar Branch, 420 
Marigold Avenue, Corona del Mar, CA 92625.
    11. Newport Beach Public Library, Mariners Branch, 2005 Dover 
Drive, Newport Beach, CA 92660.
    12. U.S. EPA Web site: http://www.epa.gov/region9.
    13. U.S. Army Corps of Engineers' Web site: http://www.spl.usace.army.mil.

A. Potentially Affected Entities

    Entities potentially affected by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material in ocean waters at the LA-3 and LA-2 ODMDS, 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 Los Angeles and 
Orange County areas seeking permits from the USACE to transport dredged 
material for the purpose of disposal into ocean waters at the LA-3 and 
LA-2 ODMDS, as well as the USACE itself (when proposing to dispose of 
dredged material at the LA-3 and LA-2 ODMDS). Potentially affected 
categories and entities seeking to use the LA-3 and LA-2 ODMDS and thus 
subject to this Rule include:

------------------------------------------------------------------------
           Category            Examples of potentially affected entities
------------------------------------------------------------------------
Industry and General Public..   Ports.
                                Marinas and Harbors.
                                Shipyards and Marine Repair Facilities.
                               Berth owners.
State, local and tribal         Governments owning and/or responsible
 governments.                   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
                                and O & M projects.

[[Page 53730]]

 
                                Other Federal agencies, including the
                                Department of Defense.
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    This table lists the types of entities that EPA is now aware 
potentially could be affected. EPA notes, however, that nothing in this 
Rule 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 may be potentially 
affected 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 LA-3 and/or LA-2 ODMDS. If you have questions regarding the 
applicability of this action to a particular entity, consult the 
persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. Background

    Ocean disposal of dredged materials is regulated under Title I of 
the Marine Protection, Research and Sanctuaries Act (MPRSA; 33 U.S.C. 
1401 et seq.). The EPA and the USACE share responsibility for the 
management of ocean disposal of dredged material. Under section 102 of 
MPRSA, EPA has the responsibility for designating an acceptable 
location for the ODMDS. With concurrence from EPA, the USACE issues 
permits under MPRSA Section 103 for ocean disposal of dredged material 
deemed suitable according to EPA criteria in MPRSA Section 102 and EPA 
regulations in Title 40 of the Code of Federal Regulations part 227 (40 
CFR part 227).
    It is EPA's policy to publish an EIS for all ODMDS designations (63 
FR 58045, October 1998). A site designation EIS is a formal evaluation 
of alternative sites which examines the potential environmental impacts 
associated with disposal of dredged material at various locations. The 
EIS must first demonstrate the need for the ODMDS designation action 
(40 CFR 6.203(a) and 40 CFR 1502.13) by describing available or 
potential aquatic and non-aquatic (i.e., land-based) alternatives and 
the consequences of not designating a site--the No Action Alternative. 
Once the need for an ocean disposal site is established, potential 
sites are screened for feasibility through the Zone of Siting 
Feasibility (ZSF) process. Remaining alternative sites are evaluated 
using EPA's ocean disposal criteria at 40 CFR part 228 and compared in 
the EIS. Of the sites which satisfy these criteria, the site which best 
complies with them is selected as the preferred alternative for formal 
designation through rulemaking published in the Federal Register (FR).
    Formal designation of an ODMDS in the Federal Register does not 
constitute approval of dredged material for ocean disposal. Designation 
of an ODMDS provides an ocean disposal alternative for consideration in 
the review of each proposed dredging project. Ocean disposal is only 
allowed when EPA and USACE determine that the proposed activity is 
environmentally acceptable according to the criteria at 40 CFR part 
227. Decisions to allow ocean disposal are made on a case-by-case basis 
through the MPRSA Section 103 permitting process or its equivalent 
process for USACE's Civil Works projects. Material proposed for 
disposal at a designated ODMDS must conform to EPA's permitting 
criteria for acceptable quality (40 CFR parts 225 and 227), as 
determined from physical, chemical, and bioassay/bioaccumulation 
testing (EPA and USACE 1991). Only clean non-toxic dredged material is 
acceptable for ocean disposal.
    The interim LA-3 disposal site is located on the continental slope 
of Newport Submarine Canyon at a depth of about 1,475 feet (ft) (450 
meters [m]), approximately 4.3 nmi (8 km) southwest of the entrance of 
Newport Harbor. This region is characterized by a relatively smooth 
continental slope (approximately two-degree slope) incised by a 
complicated pattern of meandering broad submarine canyons that can be 
up to 98 ft (30 m) deep and 656-2,625 ft (200-800 m) wide. The circular 
interim site boundary is centered at 33[deg]31'42'' N and 
117[deg]54'48'' W, with a 3,000 ft (915 m) radius.
    The interim LA-3 site has been used for disposing sediment dredged 
from harbors and flood channels within the County of Orange since 1976. 
Prior to 1992, LA-3 was permitted by the USACE as a designated ocean 
disposal site for specific projects only. In 1992, the EPA approved LA-
3 as an interim disposal site; this interim status expired January 1, 
1997 (Water Resources Development Act [WRDA] 1992). The expiration date 
was extended to January 1, 2000, through the 1996 WRDA (1996). In 1999, 
this interim status was extended for another three years and expired 
December 31, 2002. The action designates LA-3 as a permanent ODMDS for 
disposal of dredged materials generated from ongoing dredging 
activities, such as dredging to preserve the wetland habitat within the 
Upper Newport Bay or to maintain navigation channels at Newport and 
Dana Point Harbors.
    The action also shifts the center of the LA-3 site approximately 
1.3 nmi (2.4 km) to the southeast of the interim LA-3 site. The 
circular boundary of the permanently designated LA-3 site would be 
centered at 33[deg]31'00'' N and 117[deg]53'30'' W and would have a 
3,000 ft (915 m) radius. The depth of the center of the site would be 
approximately 1,600 ft (490 m). At this location the site boundary 
would be farther away from the submarine canyons that run through the 
interim site, thus simplifying surveillance and monitoring activities.
    The LA-2 ODMDS was designated as a permanent disposal site on 
February 15, 1991. The LA-2 site is located on the outer continental 
shelf, margin, and upper southern wall of the San Pedro Sea Valley at 
depths from approximately 360-1,115 ft (110 to 340 m), about 5.9 nmi 
(11 km) south-southwest of the entrance to Los Angeles Harbor. The 
relatively flat continental shelf occurs in water depths to about 410 
ft (125 m) with a regional slope of 0.8 degree. Then the slope becomes 
steep at about 7 degrees seaward to the shelf break. The southern wall 
of the San Pedro Sea Valley drops away with slopes steeper than 9 
degrees. The site boundary is centered at 33[deg]37'6'' N and 
118[deg]17'24'' W with a radius of 3,000 ft (915 m).
    The LA-2 ODMDS does not have an annual disposal volume limit. 
However, the site designation EIS evaluated potential impacts based on 
a historical annual average of 200,000 yd3 (153,000 
m3). Since 1991, the annual disposal quantity occasionally 
has exceeded the pre-designation historical annual average because of 
capital projects from both the ports of Los Angeles and Long Beach.
    The need for ongoing ocean disposal capacity is based on historical 
dredging volumes from the local port districts, marinas and harbors, 
and federal navigational channels, as well as on estimates of future 
average annual dredging. An overall average of approximately 390,000 
yd3 (298,000 m3) per year of dredged material 
requiring ocean disposal is expected to be

[[Page 53731]]

generated in the area. The purpose of the action is to ensure that 
adequate, environmentally-acceptable ocean disposal site capacity, in 
conjunction with other management options including upland disposal and 
beneficial reuse, is available for suitable dredged material generated 
in the greater Los Angeles County-Orange County area.
    EPA and USACE encourage the use of dredged material for beach 
replenishment in areas degraded by erosion. The grain size distribution 
of dredged material must be compatible with the receiving beach, and 
biological and water quality impacts must be considered prior to 
permitting of beach disposal. EPA and USACE evaluate the selection of 
appropriate disposal methods on a case-by-case basis for each permit. 
Additionally, opportunities arise periodically to use dredged material 
for marine landfilling projects, also referred to as the creation of 
``fastlands.'' When the need arises, the use of dredged material for 
the creation of fastlands is considered a viable alternative to ocean 
disposal. Other potential beneficial uses for dredged material include 
construction fill, use as cap material in aquatic remediation projects, 
wetland creation, wetland restoration, landfill daily cover, and 
recycling into commercial products such as construction aggregate, 
ceramic tiles, or other building materials. Each of these disposal 
management options is evaluated when permits are issued for individual 
dredging projects.
    A Zone of Siting Feasibility (ZSF) analysis estimates that after 
consideration of upland disposal and other beneficial uses, an average 
of approximately 390,000 yd3 (298,000 m3) per 
year of dredged material will require ocean disposal. This material 
would be proposed for ocean disposal by project proponents because it 
is not of an appropriate physical quality (e.g., it is predominantly 
fine-grained material) for reuse or because a reuse opportunity cannot 
be found that coincides with the timing of the dredging projects.
    The LA-2 ODMDS is approximately 5.9 nmi (11 km) offshore from the 
entrance to the Port of Los Angeles and approximately 8.4 nmi (15.5 km) 
from the entrance to the Port of Long Beach. The majority of suitable 
dredged material from USACE and port dredging projects in the Los 
Angeles County area that could not be beneficially reused has 
traditionally been disposed of at this site. When EPA originally 
designated LA-2 as a permanent disposal site in 1991, it evaluated the 
past history of disposal at the site up to that time and determined 
that significant adverse environmental impacts were unlikely to occur 
if similar levels of disposal continued there in the future.
    Most dredging projects from the Orange County area have not used 
the LA-2 site because of the extra costs and increased environmental 
impacts (such as increased air emissions) associated with transporting 
dredged material the longer distance to this site. Instead, projects 
traditionally have used the LA-3 interim site, located approximately 
4.3 nmi (8 km) offshore from Newport Bay. The LA-3 interim disposal 
site was originally scheduled to close down on January 1, 1997, but the 
interim designation was extended by Congress until January 1, 2000 to 
allow a major Newport Bay dredging project to be completed (the 
approximately 1,000,000 yd3 [765,000 m3] project 
to restore depth to sediment basins located in Upper Newport Bay). LA-3 
was the only interim site in the nation specifically extended in this 
manner. Most recently, via the WRDA of 1999, Congress extended the 
status of LA-3 as an interim ODMDS for another three years (until 
December 31, 2002) to allow time for site designation studies and 
completion of the site designation EIS.
    The action provides for adequate, environmentally-acceptable ocean 
disposal site capacity for suitable dredged material generated in the 
greater Los Angeles County-Orange County area by permanently 
designating the LA-3 ODMDS.

C. Disposal Volume Limit

    The action is final designation of the LA-3 ODMDS managed at a 
maximum annual dredged material disposal quantity of 2,500,000 
yd3 (1,911,000 m3) and the management of LA-2 at 
an increased maximum annual dredged material disposal quantity of 
1,000,000 yd3 (765,000 m3) for the ocean disposal 
of dredged material from the Los Angeles and Orange County region. The 
need for ongoing ocean disposal capacity is based on historical 
dredging volumes from the local port districts, marinas and harbors, 
and federal navigational channels, as well as estimates of future 
average annual dredging.

D. Site Management and Monitoring Plan

    Verification that significant impacts do not occur outside of the 
disposal site boundaries will be demonstrated through implementation of 
the Site Management and Monitoring Plan (SMMP) developed as part of the 
action. The main purpose of the SMMP is to provide a structured 
framework for resource agencies to ensure that dredged material 
disposal activities will not unreasonably degrade or endanger human 
health, welfare, the marine environment, or economic potentialities 
(section 103(a) of the MPRSA). Three main objectives for management of 
both the LA-2 and LA-3 ODMDSs are: (1) Protection of the marine 
environment; (2) beneficial use of dredged material whenever practical; 
and (3) documentation of disposal activities at the ODMDS.
    The EPA and USACE Los Angeles District personnel will achieve these 
objectives by jointly administering the following activities: (1) 
Regulation and administration of ocean disposal permits; (2) 
development and maintenance of a site monitoring program; (3) 
evaluation of permit compliance and monitoring results; and (4) 
maintenance of dredged material testing and site monitoring records to 
insure compliance with annual disposal volume targets and to facilitate 
future revisions to the SMMP.
    The SMMP includes periodic physical monitoring to confirm that the 
material that is deposited is landing where it is supposed to land, as 
well as chemical monitoring to confirm that the sediment chemistry 
conforms to the pre-disposal testing requirements. Other activities 
implemented through the SMMP to achieve these objectives include: (1) 
Regulating quantities and types of material to be disposed of, and the 
time, rates, and methods of disposal; and (2) recommending changes for 
site use, disposal amounts, or designation for a limited time based on 
periodic evaluation of site monitoring results.

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)).

General Selection Criteria

    1. The dumping of materials into the ocean will be permitted only 
at sites or in areas selected to minimize the interference of disposal 
activities with other activities in the marine environment, 
particularly avoiding areas of existing fisheries or shellfisheries, 
and regions of heavy commercial or recreational navigation.
    Dredged material disposal activities have occurred at the LA-2 and 
LA-3 sites since the late 1970s. Historical disposal at the interim LA-
3 site has not interfered with commercial or recreational navigation, 
commercial fishing, or sportfishing activities. Disposal at the LA-2 
site, while located

[[Page 53732]]

within the U.S. Coast Guard Traffic Separation Scheme, has not 
interfered with these activities. The continued use of these sites 
would not change these conditions.
    2. Locations and boundaries of disposal sites will be so chosen 
that temporary perturbations in water quality or other environmental 
conditions during initial mixing caused by disposal operations anywhere 
within the site can be expected to be reduced to normal ambient 
seawater levels or to undetectable contaminant concentrations or 
effects before reaching any beach, shoreline, marine sanctuary, or 
known geographically limited fishery or shellfishery.
    The LA-2 and LA-3 sites are sufficiently removed from shore and 
limited fishery resources to allow water quality perturbations caused 
by dispersion of disposal material to be reduced to ambient conditions 
before reaching environmentally sensitive areas.
    3. If at any time during or after disposal site evaluation studies, 
it is determined that existing disposal sites presently approved on an 
interim basis for ocean dumping do not meet the criteria for site 
selection set forth in Sections 228.5 through 228.6, the use of such 
sites will be terminated as soon as suitable alternate disposal sites 
can be designated.
    Evaluation of the LA-2 and LA-3 sites indicates that they presently 
do and would continue to comply with these criteria. Additionally, 
compliance will continue to be evaluated through implementation of the 
Site Monitoring and Management Plan (SMMP).
    4. The sizes of the ocean disposal sites will be limited in order 
to localize for identification and control any immediate adverse 
impacts and permit the implementation of effective monitoring and 
surveillance programs to prevent adverse long-range impacts. The size, 
configuration, and location of any disposal site will be determined as 
a part of the disposal site evaluation or designation study.
    The LA-2 and LA-3 disposal sites are circular areas with a 3,000 ft 
(915 m) radius. The size of the sites has been determined by computer 
modeling to limit environmental impacts to the surrounding area and 
facilitate surveillance and monitoring operations. The designation of 
the size, configuration, and location of sites was determined as part 
of the evaluation study.
    5. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.
    The LA-3 site is located beyond the continental shelf, near a 
canyon on the continental slope, in an area that has been used 
historically for the disposal of dredged material. LA-3 is the only 
site in the vicinity that fully meets the above criteria. The LA-2 
site, which has been permanently designated and has been used for the 
ocean disposal of dredged material since 1977, is located near the edge 
of the continental shelf at the 600 ft (183 m) contour.

Specific Selection Criteria

    1. Geographical position, depth of water, bottom topography, and 
distance from the coast.
    Centered at 33[deg]31'00'' N, 117[deg]53'30'' W, the LA-3 site 
bottom topography is gently sloping from approximately 1,500 to 1,675 
ft (460 to 510 m). Situated near the slope of a submarine canyon, the 
site center is approximately 4.5 nmi (8.5 km) from the mouth of Newport 
Harbor. The LA-2 site is at the top edge of the continental slope in 
approximately 360 ft to 1,115 ft (110 to 340 m) of water. Centered at 
33[deg]37'06'' N and 118[deg]17'24'' W, the LA-2 site is located just 
south of the San Pedro Valley submarine canyon, approximately 5.9 nmi 
(11 km) from the entrance to Los Angeles Harbor.
    2. Location in relation to breeding, spawning, nursery, feeding, or 
passage areas of living resources in adult or juvenile phases.
    The LA-2 and LA-3 sites are located in areas that are utilized for 
feeding and breeding of resident species. The LA-3 site is located in 
the gray whale migration route area, while the LA-2 site is located 
near the migration route. The California gray whale population was 
severely reduced in the 1800s and 1900s due to international whaling. 
However, protection from commercial whaling initiated in the 1940s has 
allowed the population to recover. There is no indication that disposal 
activities at LA-2 or LA-3 have adversely affected the gray whale. 
There are no known special breeding or nursery areas in the vicinity of 
the two disposal sites.
    3. Location in relation to beaches and other amenity areas.
    The LA-3 site boundary is located over 3.5 nmi (6.5 km) offshore of 
the nearest coast in the Newport Beach and Harbor area. The LA-2 site 
boundary is located over 4.6 nmi (8.5 km) offshore from the nearest 
coast in the Palos Verdes area. Other beach areas are more distant. No 
adverse impacts from dredged material disposal operations are expected 
on these amenity areas.
    4. Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packaging the waste, 
if any.
    Dredged material to be disposed of will be predominantly clays and 
silts primarily originating from the Los Angeles/Long Beach Harbor area 
and from Newport Bay and Harbor. Average annual disposal volumes at LA-
3 range from 0 to approximately 337,000 yd3 (0 to 258,000 
m3). Average annual disposal volumes at LA-2 range from 
68,000 yd3 to approximately 405,000 yd3 (52,000 
to 310,000 m3).
    Dredged material is expected to be released from split hull barges. 
No dumping of toxic materials or industrial or municipal waste would be 
allowed. Dredged material proposed for ocean disposal is subject to 
strict testing requirements established by the EPA and USACE, and only 
clean (non-toxic) dredged materials are allowed to be disposed at the 
LA-3 and LA-2 sites.
    5. Feasibility of surveillance and monitoring.
    The EPA (and USACE for federal projects in consultation with EPA) 
is responsible for site and compliance monitoring. USCG is responsible 
for vessel traffic-related monitoring. Monitoring the disposal sites is 
feasible but somewhat complicated by topography. At LA-3, this 
complication is reduced by relocation of the permanent LA-3 site away 
from submarine canyons.
    6. Dispersal, horizontal transport, and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any.
    Currents and vertical mixing will disperse unconsolidated fine 
grained dredged sediments in the upper water column in the vicinity of 
ODMDS boundaries. Prevailing currents are primarily parallel to shore 
and flow along constant depth contours. Situated near the slope of a 
submarine canyon, the LA-3 area would be expected to receive 
sedimentation from erosion and nearshore transport into the canyon. At 
LA-2, some sediment transport offshore occurs due to slumping. Overall, 
the seabed at both sites are considered to be non-dispersive, and 
sediments at both sites are expected to settle and remain offshore, 
with no impact expected on shore areas.
    7. Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects).
    Localized physical impacts have occurred to sediments and benthic 
biota within the disposal sites due to past disposal operations. 
However, these activities have not resulted in long-term significant 
adverse impacts on the local

[[Page 53733]]

environment. No interactions with other discharges are anticipated due 
to the distances from the discharge points.
    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.
    Continued use of the LA-2 and LA-3 sites would result in minor 
interferences with commercial shipping and fishing vessels due to 
disposal barge traffic. Sites are not located within active oil or 
natural gas tracts. Continued disposal operations are not anticipated 
to adversely impact existing nearby oil and gas development facilities 
or tracts, or other socioeconomic resources. Overall, no significant 
interferences associated with this criterion are expected to result 
from continued use of the LA-2 and LA-3 sites.
    9. Existing water quality and ecology of the site as determined by 
available data or by trend assessment or baseline surveys.
    Water quality at the two disposal areas is good, but temporary, 
localized physical impacts have occurred to sediments and benthic 
ecology due to past disposal operations. Additionally, dredged material 
deposited in the past at the two disposal areas was chemically screened 
prior to disposal, and no known dredged material was disposed of for 
which chemical concentrations exceeded the range of chemical 
concentrations approved for ocean disposal.
    10. Potentiality for the development or recruitment of nuisance 
species in the disposal site.
    The potential is low due to depth differences between the disposal 
sites and the likely sources of dredged material.
    11. Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    No known shipwrecks or other cultural resources occur within 2.7 
nmi (5 km) of either the LA-2 or LA-3 disposal sites.

F. Responses to Comments

Comments to the Draft EIS

    The draft EIS was published in the Federal Register on January 21, 
2005. A 45-day public review and comment period extended from the 
publication date through March 7, 2005. Six comment letters from 
various individuals, organizations, and agencies were received during 
the public review and comment period. In addition to the six comment 
letters, two public meetings were held on Wednesday, February 9, 2005, 
to solicit comments from interested parties. The comments, and 
associated responses, are summarized topically below.

Preferred Alternative

    Two commenters concurred with the preferred alternative selected in 
the EIS.

Site Boundaries for the LA-3 ODMDS

    One commenter questioned the boundary of the LA-3 site relative to 
the expected deposition pattern for dredged materials on the seafloor. 
The boundaries of the disposal site were chosen based on historical 
usage and to ensure that the majority of dredged material falls within 
the site boundaries given the 1,000 ft (305 m) radius disposal target 
for the disposal barges. Instantaneous sediment accumulation rates in 
excess of 1 ft (30 cm) per disposal event were assumed to result in the 
loss of the existing infaunal community. However, for assessing 
impacts, the EIS conservatively assumed that the infaunal community 
would be lost if the deposition rate exceeded 1 ft (30 cm) over a one-
year period (this is conservative because the infaunal community is 
expected to rapidly recover for instantaneous deposition rates of less 
than 30 cm [1 ft] per disposal event). For all modeled scenarios, the 
worst-case 1 ft (30 cm) annual deposition contour lies well within the 
3,000 ft (915 m) radius site boundary. While a certain quantity of 
material is expected to settle outside of the site boundary, it is 
impractical and undesirable to extend the site boundary beyond this 
distance in an attempt to encompass all of the dredge material that 
will settle on the ocean bottom. Extending the site boundaries to 
encompass all of the material expected to settle on the ocean bottom 
would not alter the conclusion of significance (or lack thereof) 
concerning adverse impacts on the benthic community determined in the 
EIS. The 3,000 ft (915 m) radius is considered appropriate for site 
management purposes.

Estimates of Future Disposal Volumes Relative to Site Capacity

    Two commenters asked for clarification of projected disposal 
volumes at the LA-2 and LA-3 sites. For both management and 
environmental impact considerations, the dredged material volume 
capacities specified for LA-2 and LA-3 were based on conservative 
estimates of the worst-case maximum amount of dredged material 
requiring ocean disposal in any given year. These estimates account for 
all known and reasonably anticipated capital and maintenance dredging 
projects in the Los Angeles and Orange County regions. It is unlikely 
that all potential projects would occur simultaneously in any given 
year. Therefore, the environmental impact analysis considered both the 
potential worst-case conditions and a more reasonable annual average 
condition.
    For each potential dredging project, the Zone of Siting Feasibility 
(ZSF) Study evaluated whether disposal at the LA-2 or LA-3 ODMDSs would 
be economically feasible. For the purposes of establishing the maximum 
analyzed annual dredged material quantities that could be placed at LA-
2 or LA-3, it was assumed that the Los Angeles County projects 
identified in the ZSF Study (USACE 2003a) would utilize LA-2, and that 
the Orange County projects would utilize LA-3.
    Accordingly, based on the projected dredging volumes from the ZSF 
study, as well as site management considerations, the LA-2 site would 
be designated for an annual maximum of 1,000,000 yd\3\ (765,000 m\3\) 
and the LA-3 site would be designated for an annual maximum of 
2,500,000 yd\3\ (1,911,000 m\3\). These maximum volume designations 
would accommodate the projected average annual volume requirements as 
well as provide for substantial annual volume fluctuations. Thus, the 
Final Rule will amend use of the existing LA-2 site for a higher 
maximum annual quantity to manage disposal of dredged material 
generated primarily from the Los Angeles County region, and it would 
permanently designate the LA-3 ODMDS with an annual quantity adequate 
to manage disposal of dredged material generated locally from projects 
to preserve the wetland habitat within the Upper Newport Bay and/or to 
maintain navigation channels at Newport and Dana Point Harbors.
    However, designation of the sites does not preclude material 
generated in Orange County from being disposed of at LA-2 or material 
generated in Los Angeles County from being disposed of at LA-3. The 
choice of which site to use for the disposal of dredged material for 
individual dredging projects will be based on both economic and 
environmental factors. Decisions to allow ocean disposal for individual 
dredging projects are made on a case-by-case basis through the Marine 
Protection, Research and Sanctuaries Act (MPRSA) Section 103 permitting 
process or its equivalent process for USACE's Civil Works projects and 
are subject to subsequent environmental review and documentation.

[[Page 53734]]

Site Monitoring and Management Plan

    One commenter expressed support for the SMMP, but requested 
clarification on opportunities for public input to the SMMP. A SMMP has 
been developed that contains approaches for monitoring impacts to 
marine organisms, as well as verification of model predictions. 
Development of this SMMP was based on a review of other SMMPs prepared 
for similar ocean disposal sites.
    The site monitoring reports described in the SMMP will be public 
documents that will be made available either through posting on the EPA 
Web site or direct mailing upon request. EPA will accept public 
comments regarding those reports, although there will not be a formal 
comment period. Additionally, the public will get an opportunity to 
comment on any SMMP implementation manual that is prepared by EPA 
subsequent to this action. No revisions to the SMMP as written are 
necessary to allow for this level of public input.

Relocation of the LA-3 ODMDS

    One commenter indicated that relocating LA-3 was inconsistent with 
EPA site selection criteria. Although the permanent LA-3 site lies 
outside of the boundaries of the interim LA-3 site, the permanent site 
has been disturbed by historical dredged material disposal events. 
During reviews performed by the U.S. Geological Survey in 1998, a 
substantial amount of dredged material was noted outside of the interim 
site boundaries, particularly to the north, northeast, and southeast of 
the site. This was primarily attributed to disposal short of the 
targeted disposal area and errors in disposal generally resulting from 
inaccurate navigation.
    Locating the permanent site boundary at the new location (away from 
the interim site) would redirect future dredged material disposal to an 
area historically used for disposal (and thus already undisturbed). 
Additionally, due to the nature of the local topography, the permanent 
site would be more amenable to monitoring via precision bathymetry. 
Further, as described in the SMMP, enhanced vessel tracking and 
monitoring will ensure that future disposal activities occur accurately 
within the designated target area of the permanent site.

Extension of the Interim Designation of LA-3

    One commenter recommended extending the interim designation of LA-
3. Congressional authorization for the interim site designation expired 
December 31, 2002. Requests for another extension would have to be made 
to Congress. In any event, the action obviates the need for an 
extension. Thus, an extension of LA-3's interim site designation is not 
necessary.

Impacts to Areas of Special Biological Significance

    One commenter noted potentials for impacts to Crystal Cove State 
Park and Area of Special Biological Significance (ASBS) if dredged 
materials placed at LA-3 were transported shoreward by currents. 
Dispersion and transport of dredged material disposed at LA-3 was 
modeled using measured current data collected in the disposal site and 
nearshore area. Results from the sediment fate model indicated that the 
dredged material disposed at LA-3 would settle within and immediately 
adjacent to the disposal site and no appreciable sediment transport 
toward the nearshore areas is anticipated, particularly given the depth 
of the LA-3 site. Water quality impacts during dredged material 
disposal operations at the LA-3 site will be temporary and localized 
and are not expected to extend to the shallower, nearshore area. 
Further, the location of the permanent LA-3 site relocates the site 
away from the Newport submarine canyon. Thus, any potential influences 
of currents within the canyon would be reduced at the permanent site.

Comments to the Final EIS and Proposed Rule

    The Final EIS and Proposed Rule were published in the Federal 
Register on July 18, 2005. A 30-day public review and comment period 
extended from the publication date through August 18, 2005. No formal 
comments were received from the public or agencies.

G. Regulatory Requirements

1. Consistency With the Coastal Zone Management Act

    Consistent with the Coastal Zone Management Act, EPA prepared a 
Coastal Zone Consistency Determination (CCD) document based on 
information presented in the site designation EIS. The CCD evaluated 
whether the action--permanent designation of LA-3 and management of LA-
2 at a higher annual disposal volume--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 June 9, 2005. The Commission staff report recommended 
that the Commission concur with EPA's CCD, which the Commission did by 
a unanimous vote. The Final Rule is consistent with the Coastal Zone 
Management Act.

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 
the ocean disposal sites to jeopardize the continued existence of any 
federally listed species. This consultation process is fully documented 
in the site designation EIS. NMFS and FWS concluded that use of the 
disposal sites for disposal of dredged material meeting the criteria 
for ocean disposal would not jeopardize the continued existence of any 
federally listed species.

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;
    (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 President's priorities, or the principles set forth in 
the Executive Order.
    This Final Rule should have minimal impact on State, local or 
tribal governments or communities. Consequently, EPA has determined 
that this Final Rule is not a ``significant regulatory action'' under 
the terms of Executive Order 12866.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and recordkeeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act

[[Page 53735]]

requires that information requests and recordkeeping requirements 
affecting ten or more non-Federal respondents be approved by OMB. Since 
the Final Rule would not establish or modify any information or 
recordkeeping requirements, but only clarifies existing requirements, 
it is not subject to the provisions of the Paperwork Reduction Act.

3. 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 final rule will not have a significant 
economic impact on a substantial number of small entities (5 U.S.C. 604 
and 605). The site designation and management actions would only have 
the effect of setting maximum annual disposal volume and 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. 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. The Final Rule would only provide 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 Final 
Rule.

5. Executive Order 13132: Federalism

    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. The Final Rule would only have 
the effect of setting maximum annual disposal volumes and providing a 
continuing disposal option for dredged material. Thus, Executive Order 
13132 does not apply to this Final Rule.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    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. The Final 
Rule would only have the effect of setting maximum annual disposal 
volumes and providing a continuing disposal option for dredged 
material. Thus, Executive Order 13175 does not apply to this Final 
Rule.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This Executive Order (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 reason 
to believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use Compliance With Administrative Procedure 
Act

    This Final Rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866. The Final 
Rule would only have the effect of setting maximum annual disposal 
volumes and providing a continuing disposal option for dredged 
material. Thus, EPA concluded that this Final Rule is not likely to 
have any adverse energy effects.

9. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This Final Rule 
does not involve technical standards. Therefore, EPA is not considering 
the use of any voluntary consensus standards.

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

[[Page 53736]]

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 Final Rule will be effective October 12, 2005.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: August 31, 2005.
Alexis Strauss,
Acting Regional Administrator, Region IX.

0
In consideration of the foregoing, EPA is amending part 228, chapter I 
of title 40 of the Code of Federal Regulations as follows:

PART 228--[AMENDED]

0
1. The authority citation for part 228 continues to read as follows:

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

0
2. Section 228.15 is amended by adding paragraph (l)(11) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (l) * * *
    (11) Newport Beach, CA, (LA-3) Ocean Dredged Material Disposal 
Site--Region IX.
    (i) Location: Center coordinates of the circle-shaped site are: 
33[deg]31'00'' North Latitude by 117[deg]53'30'' West Longitude (North 
American Datum from 1983), with a radius of 3,000 feet (915 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 1,500 to 1,675 feet (460 to 510 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged materials 
that comply with EPA's Ocean Dumping Regulations.
* * * * *
[FR Doc. 05-18024 Filed 9-9-05; 8:45 am]
BILLING CODE 6560-50-P