[Federal Register Volume 71, Number 91 (Thursday, May 11, 2006)]
[Rules and Regulations]
[Pages 27396-27405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4286]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-8167-7]


Ocean Dumping; De-Designation of Ocean Dredged Material Disposal 
Site and Designation of New Site Near Coos Bay, OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing its proposal to de-designate an existing 
ocean dredged material disposal site and designate a new ocean dredged 
material disposal site located offshore of Coos Bay, Oregon. EPA's 
proposed rule was published March 31, 2000. The new site is needed for 
long-term use by authorized Coos Bay navigation projects and may be 
available for use by persons meeting the criteria for ocean disposal of 
dredged material. The de-designation of the existing site allows for 
its incorporation into the newly designated site. This will allow EPA 
to manage the entire new site to avoid adverse mounding conditions and 
will ensure site capacity is sufficient for total volumes of dredged 
material. The newly designated site is necessary for current and future 
dredged material ocean disposal needs and will be subject to ongoing 
monitoring and management to ensure continued protection of the marine 
environment so as to mitigate adverse impacts on the environment to the 
greatest extent practicable.

DATES: This final rule will be effective on June 12, 2006.

ADDRESSES: EPA has established a docket for this final action under 
Docket ID No. EPA-R10-OW-2006-0409. All documents in the docket are 
listed on the www.regulations.gov Web site. The documents are also 
available for inspection at the Region 10 Library, 10th Floor, 1200 
Sixth Avenue, Seattle, Washington 98101. For access to the documents at 
the Region 10 Library, contact the Region 10 Library Reference Desk at 
(206) 553-1289, between 9 a.m. to 11:30 a.m. and 1 p.m. to 4 p.m., 
Monday through Friday, excluding legal holidays, for an appointment or 
contact John Malek, U.S. EPA, Region 10, 1200 Sixth Avenue, Mail Stop 
ETPA-083, e-mail: [email protected], phone number (206) 553-1286.

FOR FURTHER INFORMATION CONTACT: John Malek, Ocean Dumping Coordinator, 
U.S. Environmental Protection Agency, Region 10 (ETPA-083), 1200 Sixth 
Avenue, Seattle, WA 98101-1128, telephone (206) 553-1286, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

1. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval by EPA to dispose of dredged material 
into ocean waters pursuant to the Marine Protection, Research, and 
Sanctuaries Act, as amended, 33 U.S.C. 1401 to 1414, (``MPRSA''). EPA's 
action would be relevant to persons, including organizations and 
government bodies seeking to dispose of dredged material in ocean 
waters offshore of Coos Bay, Oregon. Currently, the U.S. Army Corps of 
Engineers (Corps) and other persons with permits to use designated 
sites at Coos Bay would be most impacted by this final action. 
Potentially affected categories and persons include:

------------------------------------------------------------------------
           Category            Examples of potentially regulated persons
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Federal Government...........  U.S. Army Corps of Engineers Civil Works
                                Projects, and other Federal Agencies.
Industry and General Public..  Port Authorities, Marinas and Harbors,
                                Shipyards and Marine Repair Facilities,
                                Berth Owners.
State, local and tribal        Governments owning and/or responsible for
 governments.                   ports, harbors, and/or berths,
                                Government agencies requiring disposal
                                of dredged material associated with
                                public works projects.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding persons likely to be affected by this 
action. For any questions regarding the applicability of this action to 
a particular person, please refer to the section of this action titled 
FOR FURTHER INFORMATION CONTACT.

2. Background

a. History of Disposal Site Designations Off of Coos Bay, OR

    Pursuant to the MPRSA, the Administrator of EPA, as delegated to 
the Regional Administrator, designated three disposal sites (Site E, 
original Site F and Site H) off of Coos Bay, Oregon in 1986. The 
original Site F began to experience mounding that rendered it unable to 
accept the total volume of dredged material generated on an annual 
basis. In 1989, with EPA approval, the size of the original Site F was 
roughly doubled by the Corps exercising its Section 103 authority to 
select disposal sites under the MPRSA. In 1995, EPA approved a second 
Corps expansion of the original Site F. On March 31, 2000, EPA 
published in the Federal Register its proposal to de-designate the 
original Site F and designate a new Site F that consisted of the 103 
configured Site F and the original Site F (65 FR 17240). A forty-five 
day public comment period, which closed on May 14, 2000, was provided. 
EPA did not receive comments from the public on the proposed rule. The 
coordinates of the proposed Site F (North American Datum 1983; NAD 83) 
were:

43[deg]22'58'' N, 124[deg]19'32'' W
43[deg]21'50'' N, 124[deg]20'29'' W
43[deg]22'52'' N, 124[deg]23'28'' W
43[deg]23'59'' N, 124[deg]22'31'' W

The proposed site was rectangular with an east-west side length 
dimension of 14,500 feet and a north-south side length dimension of 
8,000 feet. Figure 1 is a diagram of the site EPA proposed in 2000.
    Subsequent to EPA's proposed designation, the North Jetty at Coos 
Bay failed in December 2002, due in part to undermining. The Corps then 
examined the potential for augmenting transport of disposed material 
into the eddy created by the North Jetty itself. With EPA concurrence, 
the Corps began making selected disposals in the southeastern corner of 
the 103 Site F nearest the jetty. Monitoring indicated that some 
material was captured by the eddy and augmented the substrate that the 
jetty rests upon. This experience and the lessons learned during the 
designations of ocean dredged material disposal sites near the Mouth of 
the Columbia River in 2005, as well as increased public awareness of, 
and attention to, coastal erosion processes and opportunities to manage 
dredged material more beneficially led EPA to review its proposed site 
designation near Coos Bay. The result of this review is a minor change 
to the configuration of new Site F toward the North Jetty at the north 
side of the mouth of Coos Bay. This reconfiguration could potentially 
benefit the stabilization of the North Jetty and keep material in the 
littoral zone. This

[[Page 27397]]

reconfiguration is expected to allow dredged material disposed in 
shallower portions of the new Site F to naturally disperse into the 
littoral zone without creation of mounding conditions that would 
contribute to adverse impacts to navigation, including adverse wave 
conditions.

b. Location and Configuration of New Site F

    Figure 2 is a diagram of the new Site F as EPA is finalizing the 
site in today's rule. It also shows the other designated sites (E and 
H), the de-designated Site F, the 103 configured Site F and the 
proposed Site F. The shoremost side of the site has been extended 
approximately 600 feet as compared to the site when proposed and the 
southeastern corner has been located closer to the North Jetty at the 
mouth of Coos Bay. This has resulted in an overall increase to the site 
footprint of 399.8 acres bringing the total area of new Site F to 
3,075.2 acres. This configuration will allow EPA to ensure that 
disposal of dredged material into the site will be managed to retain 
more of the material in the active littoral drift area to augment 
shoreline building processes. The relocation of the corner of the site 
closer to the jetty will allow dredged material to be more effectively 
placed to continue augmentation toward the nearshore and toward the 
North Jetty at the mouth of Coos Bay. This change, while minor, expands 
sediment management opportunities that are beneficial to the coastal 
environment in Coos Bay. The coordinates for the new Site F near Coos 
Bay (NAD 83) as finalized today are:

43[deg]22'54.8887'' N, 124[deg]19'28.9905'' W
43[deg]21'32.8735'' N, 124[deg]20'37.7373'' W
43[deg]22'51.4004'' N, 124[deg]23'32.4318'' W
43[deg]23'58.4014'' N, 124[deg]22'35.4308'' W

    The new Site F is expected to accommodate the approximately 1.38 
million cubic yards (mcy) of material dredged annually from the Coos 
Bay estuary by the Corps to maintain the existing Federal navigation 
channel. The nearshore boundary of the new site is within two thousand 
feet of the shoreline. Sediments disposed near this boundary are 
considered to be in the active transport zone and are expected to 
disperse rapidly both onshore and alongshore. Limited onshore transport 
is expected because of the nature of prevailing currents and wave 
transport in the vicinity. Predicted material transport at the new site 
is southward in the summer months and northward during the remainder of 
the year.

BILLING CODE 6560-5-P

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[GRAPHIC] [TIFF OMITTED] TR11MY06.004


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[GRAPHIC] [TIFF OMITTED] TR11MY06.005

BILLING CODE 6560-50-C

c. Management and Monitoring of New Site F

    The newly designated Site F will receive sediments dredged by the 
Corps to maintain the federally authorized navigation project at Coos 
Bay, Oregon and will be available to current permittees and for use by 
others after obtaining the appropriate permits and approvals. Existing 
permits issued pursuant to subchapter H of Title 40 of the CFR will not 
need to be modified to use new Site F. The new Site F is designated 
with restrictions with which all persons must comply. All persons using 
the site are required to follow the final Site Management and 
Monitoring Plan (SMMP) which is effective as of the effective date of 
this action. The SMMP generally addresses managing new Site F to 
minimize and avoid mounding and to ensure that dredged materials

[[Page 27400]]

disposed at the site are suitable for ocean disposal. The SMMP includes 
management and monitoring requirements for all of the designated sites 
near Coos Bay and addresses the timing of disposal into new Site F to 
minimize interference with commercial crabbing in the nearshore zone. 
Among other things, the SMMP sets out monitoring and management 
requirements to ensure that dredged material disposed at the site is 
suitable for disposal and will not lead to unacceptable impacts to 
human health or the environment during the dredging process, during 
transportation to the designated sites, during disposal or once 
disposed or at the disposal sites.

d. MPRSA

    EPA finds that today's final action satisfies the site designation 
criteria of the MPRSA and the regulatory criteria of 40 CFR part 228. 
The assessment of the statutory criteria and general and specific 
regulatory criteria presented in the proposed rule has been examined in 
response to the slight reconfiguration of the new Site F. Moving the 
corner of the new Site F to the southeast and closer to the North Jetty 
based on EPA's increased understanding of coastal erosion issues will 
allow EPA to manage disposal at the new Site to retain material in the 
active littoral zone to augment shoreline building processes. This 
meets the statutory and regulatory criteria to use an appropriate 
location based on considerations affecting the public interest and to 
locate the site to minimize interference with other activities in the 
marine environment. New data collected since the proposed rule has been 
included in the discussion of the general and specific site designation 
criteria.
General Criteria (40 CFR 228.5)
    1. Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    EPA's assessment of information available at the time of the 
proposed rule demonstrated that new Site F as proposed would cause only 
minimal interference with fisheries and shellfisheries and with 
navigation notwithstanding the location of the site in the Coos Bay 
navigation channel. This assessment has not changed with the minor 
reconfiguration of the site toward the North Jetty. Most of new Site F 
has been used over the past decade for dredged material disposal 
pursuant to section 103 authority exercised by the Corps with EPA 
concurrence and mariners in this area are accustomed to the site use. 
In addition, based on a conservation recommendation from the National 
Marine Fisheries Service (NMFS) resulting from an EPA consultation on 
essential fish habitat, EPA will impose use restrictions at the site to 
minimize the use of the site before June 1 of any year to essential 
work and will encourage staggering of disposal events when juvenile 
coho and Chinook salmon are holding in nearshore habitats.
    2. Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    EPA's analysis at the time of the proposed rule concluded that the 
new Site F would satisfy this criterion. EPA's understanding of the 
nearshore processes near the North Jetty indicates that this criterion 
will continue to be met with the reconfiguration of new Site F as 
finalized today. Although EPA expects some material disposed at new 
Site F to reach the base of the North Jetty, normal ambient levels and 
undetectable contaminant concentrations or effects would be expected 
before any material reached any beach, shoreline, marine sanctuary or 
known geographically limited fishery or shellfishery because of the 
existing high currents and wave energy.
    3. If site designation studies show that any interim disposal sites 
do not meet the site selection criteria, use of such sites shall be 
terminated as soon as any alternate site can be designated (40 CFR 
228.5(c)).
    There are no interim disposal sites near Coos Bay as defined under 
the Ocean Dumping regulations. This criterion is not applicable to 
today's action de-designating existing Site F and designating new Site 
F.
    4. The sizes of disposal sites will be limited in order to localize 
for identification and control any immediate adverse impacts, and to 
permit the implementation of effective monitoring and surveillance to 
prevent adverse long-range impacts. Size, configuration, and location 
are to be determined as part of the disposal site evaluation (40 CFR 
228.5(d)).
    EPA sized the proposed site to meet this criterion. The site, as 
finalized in today's action, continues to meet this criterion. The 
total area of new Site F is approximately 3,075.2 acres or 3.63 nm\2\. 
The site tends to be moderately dispersive in the nearshore area and 
tends to be less dispersive in other parts of the site. The overall 
stability of the site is a significant part of the justification for 
the size of the site. The original Site F experienced significant 
mounding and lead to the selection of the larger site designated today. 
Data collected by the Corps through bathymetric monitoring shows the 
spread and movement of material placed at original Site F and suggests 
that material from the original Site F did eventually disperse over the 
footprint of the 103-selected site. This data also indicates that 
effective monitoring and surveillance of the site has been performed 
for many years. The SMMP describes the plan for management and 
monitoring of the site.
    5. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    EPA's evaluation at the time of the proposed rule concluded that 
long distances and travel times between the dredging locations near 
Coos Bay and the continental shelf posed significant environmental, 
operational, safety and environmental concerns, including risk of 
encounter with endangered species and increased air emissions. This 
conclusion is unchanged and new Site F, finalized by today's rule, is 
consistent with this criterion.
Specific Criteria (40 CFR 228.6)
1. Geographical Position, Depth of Water, Bottom Topography and 
Distance From Coast (40 CFR 228.6(a)(1))
    Based on the data available at the time EPA proposed the 
designation of Site F and data available from bathymetric surveys 
conducted by the Corps, EPA has concluded that the geographical 
position, depth of water, bottom topography and distance from the coast 
of new Site F will avoid adverse effects to the marine environment. 
Near the North Jetty, the new site will allow for the placement of 
material that is expected to contribute material to the littoral zone 
and may help decrease erosion of the jetty. Throughout most of the 
shallow portions of the new site the area is dispersive. Based on EPA's 
understanding of currents at the site and their influence on the 
movement of material in the area this means there is a high likelihood 
that material will be transported to the adjacent seafloor. The site is 
located and sized to allow for long-term disposal without creation of 
adverse mounding conditions.

[[Page 27401]]

2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2))
    New Site F is not located in breeding, spawning, nursery or feeding 
areas for adult or juvenile phases of living resources. The site is, or 
may be, a passage area for living resources during adult or juvenile 
phases. The National Marine Fisheries Service (NMFS), during 
consultations with EPA in 2005 and 2006 for endangered species and for 
essential fish habitat, requested that disposal at new Site F be 
restricted to stagger disposal events at the new site, particularly in 
the nearshore zone, to avoid continuous disposal while juveniles, 
including salmon and groundfish species, are outmigrating or holding in 
nearshore environments. EPA agreed to include staggered disposal in its 
final SMMP. This will benefit the juveniles of concern to NMFS and will 
also minimize any potential short-term localized effects to marine 
organisms in the immediate vicinity of disposal events by minimizing 
the creation of mounds at the site.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3))
    EPA's proposed rule concluded that the proposed site met this 
criterion and EPA's conclusion is not changed today notwithstanding the 
minor reconfiguration of the site toward the North Jetty. The site, 
although located in the navigation channel and close to the North Jetty 
is located to avoid adverse impacts to beaches and other amenity areas.
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 new Site F is being designated today for the disposal of 
dredged material. Disposal of other types of material will not be 
allowed at this site or at any of the ocean dredged material disposal 
sites at Coos Bay. Dredged material to be disposed at the new Site F 
will be predominantly sand and fine-grained material. Data collected 
subsequent to EPA's proposed rule included seventeen sediment samples 
collected from along the length of the federal navigation channel in 
Coos Bay, Isthmus Slough, and Charleston Channel in 2004 (Coos Bay 
Sediment Quality Evaluation Report, March 2005). These samples were 
subjected to physical and chemical analyses, which included analyses 
for metals, total organic carbon, pesticides, polychlorinated biphenyls 
(PCBs), phenols, phthalates, miscellaneous extractables, polynuclear 
aromatic hydrocarbons (PAHs) and total and pore water organotin (TBT).
    The physical analyses resulted in mean values of 1.6% gravel (0%-
10.0% range), 69.6% sand (4.0%-98.8% range), and 28.8% silt/clay (1.2%-
96.0% range) with 4.5% volatile solids (0.2%-16.7% range). The chemical 
analyses indicated low levels of chemicals in some of the samples. The 
results were compared with results from previous Corps sampling efforts 
in 1980, 1986, 1987, 1989, 1993, 1994, 1995, and 1998. All the data are 
consistent in showing that material below river mile (RM) 12 of the 
Coos Bay channel is typically sand, while material above RM 12 is 
typically silt. With only a few exceptions (where adjacent sources are 
obvious) the sand matrix is considered low risk for contamination. The 
silty areas of the estuary and river typically contain low levels of 
contaminants-of-concern that have remained unchanged for many years or 
appear to be improving slightly (i.e. concentrations are dropping). 
Materials to be disposed of at the site must be suitable for ocean 
disposal.
    With respect to proposed methods of releasing material at the new 
site, material will be released just below the surface from dredges 
while the dredges are under power and slowly transit the site. This 
method of release is expected to minimize mounding at the site and to 
minimize impacts to the benthic community.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
    Monitoring and surveillance at new Site F is expected to be 
feasible. The site is accessible for bathymetric and side-scan sonar 
surveys. Most of the site has been successfully monitored by the Corps 
during the Corps's use of the 103 site. It is also expected to be 
feasible to monitor and survey the minor addition made to the site 
through the reconfiguration toward the North Jetty. The Corps has 
monitored the base of the jetty on a routine basis and during emergency 
repairs made in 2002 after a failure of the jetty. The final SMMP 
requires monitoring and surveillance of the new site. At a minimum, 
annual bathymetric surveys will be conducted at new Site F and more 
frequent surveys will be required in areas of the site that receive 
dredged material. Off-site beach monitoring will also be required. 
Routine monitoring will concentrate on determining how to ensure the 
distribution of material in the nearshore portions of the site to 
augment littoral processes and in the deeper portions of the site to 
avoid or minimize mounding.
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))
    At the time EPA proposed the designation of the new site, EPA 
understood the dispersal patterns along the Oregon coast to generally 
flow parallel to the bathymetric contours of the bottom. Local wave and 
current strength and direction are impacted by the variability of the 
local winds, especially in shallower water. During summer months which 
make up the normal dredge and disposal season, material transport 
trends southward. The trend at other times of the year is north and 
northwest for currents and material transport. Re-suspension and 
transport of material disposed at the site would be expected to be at a 
maximum during winter months when winter storms occur and when no 
active disposal is taking place at the site. Throughout the year, 
material disposed in the nearshore and shallower portions of new Site F 
are expected to be redistributed by existing littoral processes.
    Mounding at originally designated Site F led the Corps to exercise 
its authorities pursuant to Section 103 of the MPRSA to select a 
significant expansion of the site and to use modeling techniques to 
model placement of material within the site to avoid excessive 
mounding. The originally designated Site F was generally not used for 
disposal after 1989. However, it was thought that material at that 
location was eroding toward the 103 selected Site F. For this reason, 
the original Site F, although proposed for de-designation as a stand-
alone site, was to be incorporated into the new Site F. The movement of 
material was considered to be most dispersive in the shallower zones of 
the 103 site but material disposed in the deeper and less dynamic 
portions of the site are redistributed across the site. Eventually, the 
redistribution is expected to move the material disposed at the site to 
the north and east.
    Subsequent to publication of the proposed Rule in 2000, the Corps 
continued to conduct annual bathymetric surveys at the 103 Site F and 
to share the data collected with EPA to assess capacity at the site for 
the coming year's anticipated dredging. This data tended to show that 
the mound at the 1986-designated Site F was slowly eroding to its 
present

[[Page 27402]]

average at below minus 60 feet mean lower low water (MLLW). This 
indicates a minimum of 10 feet of material having eroded out of 1986-
designated Site F. Dredged material was placed at various locations 
within the 103 Site F and monitored. Computer modeling of disposal 
operations was used to determine short-term and long-term sediment fate 
to design disposal units or cells. Bathymetric surveys during and 
following disposals were conducted. Initial work was focused on 
confirming accuracy of the models. Bathymetric changes measured by the 
monitoring compared well with the changes predicted by the model. For 
example, the model predicted a 2.9 foot change and monitoring measured 
the actual change at 3.0 feet. The model was used to predict disposal 
results in the nearshore area (i.e., along the innermost edge of the 
103 Site F) and field monitoring was conducted to verify the modeled 
predictions. Placement height was managed to a maximum of 3 feet during 
initial disposal into 180 separate cells each sized as a 200 foot by 
500 foot cell.
    These bathymetric surveys show that the shallow water portion of 
the site has accumulated about 1 foot of material on the bottom, with 
small areas of accumulation of up to 5 feet. In the deeper portion of 
the 103 site, disposals were conducted to dispose of up to 24 feet of 
material at specific locations. Bathymetric monitoring indicates these 
thicker disposals had eroded down to 19 feet of accumulated material on 
the bottom. The surveys further show that this accumulated material is 
dispersing in a northeasterly direction.
7. Existence and Effects of Current and Previous Discharges and Dumping 
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
    Annually, approximately 1.3 million cubic yards (mcy) of material 
has been disposed of at the Coos Bay designated sites, Sites E, F and 
H, from dredging undertaken by the Corps to maintain the navigation 
channel. The Coos Bay sites were used consistently prior to their 
designations in 1986. Sites E and F were not used after the late 
eighties because of mounding concerns. As discussed above, the mounds 
at those sites have been eroding over time. Originally designated Site 
F was recently used by the Corps for the disposal of dredged material 
to maintain safe navigation in the navigation channel. This site, which 
is de-designated by today's rule as a stand-alone site, is incorporated 
into the footprint of the new Site F. EPA's evaluation of data and 
modeling results indicates that past disposal operations at these sites 
and current operations have not resulted in unacceptable environmental 
degradation. Adverse effects are not expected to result from the minor 
reconfiguration of the site toward the North Jetty. EPA expects that 
portion of the site to benefit the nearshore environment.
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 site is not expected to interfere with shipping, fishing, 
recreation or other legitimate uses of the ocean. Commercial crabbing, 
which was referenced in EPA's proposed rule as an activity occurring in 
the nearshore, is not expected to be impacted by the minor 
reconfiguration of new Site F. Disposals at the new site will be 
managed through the SMMP to minimize interference with other legitimate 
uses of the ocean through careful timing and staggering of disposals in 
the nearshore portion of the new site.
9. The Existing Water Quality and Ecology of the Sites as Determined by 
Available Data or Trend Assessment of Baseline Surveys (40 CFR 
228.6(a)(9))
    At the time of EPA's proposed rule in 2000, EPA had not identified 
any adverse water quality impacts from ocean disposal of dredged 
material at originally designated Site F or at 103 selected Site F. In 
2004, the Corps released a report titled ``Comparison of SPI Data and 
STFATE Simulation Results at Coos Bay, OR ODMDS Site `F','' which 
provided some verification of numerical models used to predict the 
behavior of disposed material on water quality and ecology of the site. 
The samples, i.e. sediment profile images, indicated some important 
characteristics about the native sediments and dredged sediments 
disposed of at the site. Native sediment in the shallow and 
intermediate water portions of the site did not show a layer of fine 
grained material at the sediment-water interface. This absence 
indicates that burrowing infauna were absent or extremely limited in 
the area. This finding was not unexpected because the intermediate/
shallow water locations within the site are heavily dominated by wave-
current action which forces repeated and routine resuspension of 
sediment. The report found that ``the effects on initial disposal on 
benthic marine life in these areas are likely minimal.'' By contrast, 
the deeper portion of the site did indicate the presence of benthic 
infaunal activity. In addition to the sediment profile imaging (SPI), a 
plan-view video was also produced. Crabs, shrimp, and flatfish were all 
seen on the video; however, no inferences were made as to population. 
Biological activity and reworking of the surface sediments by natural 
forces was indicated in the imaging but it was not possible to 
penetrate the sandy substrate to measure the full thickness of the 
deposited material at the site.
10. Potentiality for the Development or Recruitment of Nuisance Species 
in the Disposal Site (40 CFR 228.6(a)(10))
    In its proposed rule, EPA stated that nuisance species had not been 
observed at the existing Coos Bay sites in over ten years of monitoring 
and that EPA did not expect there to be a significant potential for the 
development or recruitment of nuisance species in the proposed site. 
That statement was based in part on the lack of organic material 
disposed at the site. Subsequent to EPA's proposed rule, however, 
circumstances at designated Site H have caused that site to be closed 
at present and the potential for organic material to be disposed of at 
new Site F has increased. Organic material is generally found above RM 
12 in the Coos Bay Channel and is likelier than material below RM12 to 
be more attractive to nuisance species. While there is the potential 
for the development or recruitment of nuisance species where dredged 
material from above RM12 might be disposed of at the new Site F, this 
potential remains low. The SMMP will provide for monitoring of the new 
site to help ensure that nuisance species are not recruited to and do 
not develop at the new site.
11. Existence at or in Close Proximity to the Site of Any Significant 
Natural or Cultural Feature of Historical Importance (40 CFR 
228.6(a)(11))
    EPA stated in its proposed rule that no cultural features of 
historical importance had been identified at or near the proposed site. 
This continues to be the case. The new Site F is located over 7 statute 
miles southwest of the Oregon Dunes National Recreation Area, a 
significant natural feature, but is not considered to be in close 
proximity to that feature. The new site is located approximately 3 
statute miles northeast of three Oregon state parks: Shore Acres State 
Park, Cape Arago State Park and Sunset Bay State Park. The new site is 
not considered to be in proximity to these areas. The national historic 
landmark, located near Cape Arago State Park, over 4 statute miles 
south of the new site, is not within the proximity of

[[Page 27403]]

the site. Impacts to significant natural or cultural features have not 
been identified.

e. National Environmental Policy Act (NEPA); Magnuson-Stevens Act 
(MSA); Coastal Zone Management Act (CZMA); Endangered Species Act (ESA)

1. NEPA
    Section 102 of the National Environmental Policy Act of 1969, 42 
U.S.C. 4321, et seq., (NEPA) 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. NEPA does not apply to EPA designations of ocean 
disposal sites under the MPRSA as EPA has made clear in EPA's ``Notice 
of Policy and Procedures for Voluntary Preparation of NEPA Documents,'' 
63 FR 58045 (October 29, 1998). EPA did voluntarily cooperate with the 
U.S. Army Corps of Engineers (Corps) as a cooperating agency on the 
Feasibility Report on Navigation Improvements with Environmental Impact 
Statement (EIS) prepared in 1994. As discussed in the proposed rule, 63 
FR 17240 (March 31, 2000), the EIS provided documentation to support 
the final designation of the proposed Site F. EPA did not see a need to 
supplement the EIS to address the minor reconfiguration of the new Site 
F which is finalized in today's designation.
2. MSA
    In the fall of 2005, EPA consulted with the National Marine 
Fisheries Service (NMFS) concerning essential fish habitat. EPA 
prepared an essential fish habitat (EFH) assessment pursuant to section 
305(b) of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 
1855(b). NMFS reviewed EPA's action and issued six non-binding 
conservation recommendations. EPA accepted three of the 
recommendations. The three accepted by EPA included: Using the best 
relevant analytical methods in sampling and analysis plans included in 
the final SMMP; limiting site use before June 1 and staggering disposal 
events during nearshore holding and outmigration of juvenile salmon; 
and provisions to provide the results of bathymetric monitoring to 
NMFS. EPA incorporated these recommendations into the final SMMP.
    EPA did not accept the remaining three recommendations. These 
recommendations asked EPA to develop and implement studies to collect 
information to better inform agencies on species presence and use in 
the disposal area, in areas that might be designated in the future, and 
for all existing ocean disposal sites in Oregon. EPA did not accept 
these recommendations because EPA did not find that the collection of 
information as recommended by NMFS constituted measures for ``avoiding, 
mitigating, or offsetting the impact'' of the Federal action on 
essential fish habitat.
3. CZMA
    EPA consulted with the state of Oregon on coastal zone management 
issues. EPA prepared a consistency determination for the Oregon Ocean 
and Coastal Management Program (OCMP) to address consistency 
determinations required by the Coastal Zone Management Act, 16 U.S.C. 
1446. The Oregon Department of Land Conservation and Development (DLCD) 
reviewed the consistency determination and concurred with EPA that the 
action is consistent with the OCMP to the maximum extent practicable 
basing its findings on the certification EPA provided.
4. ESA
    EPA also consulted with NMFS and the U.S. Fish and Wildlife Service 
on its action to de-designate existing Site F and to designate new Site 
F finding that the action would not be likely to adversely affect 
aquatic or wildlife species listed as endangered pursuant to the 
Endangered Species Act, 16 U.S.C. 1531 to 1544, (ESA), or the critical 
habitat of such species. EPA found that site designation does not have 
a direct impact on any of the identified ESA species but also found 
that indirect impacts had to be considered. These indirect impacts 
included a short-term increase in suspended solids and turbidity in the 
water column when dredged material was disposed at the new site and an 
accumulation of material on the ocean floor when material was disposed 
at the site. EPA concluded that while its action may affect ESA-listed 
species, the action would not be likely to adversely affect ESA-listed 
species.
    The U.S. Fish and Wildlife Service concurred with EPA's conclusion 
based on its finding that ``abundant suitable foraging habitat 
throughout the area'' for birds of concern would be available during 
disposal activities, i.e. site use, and that minor behavioral changes, 
such as foraging in areas other than the designated site, would be 
temporary. NMFS concurred with EPA's findings for ESA-listed marine 
mammals, sea turtles, and southern Oregon/northern California coho 
salmon, finding that the new site was not designated as critical 
habitat for any of those species. NMFS did not agree with EPA's 
conclusions for Oregon Coast coho salmon and requested additional 
consultation. Subsequent to that request, NMFS announced that it was 
withdrawing its proposal to list Oregon Coast coho salmon as 
endangered. The ESA consultation concluded with the withdrawal of the 
NMFS proposal to list Oregon Coast coho salmon and NMFS addressed 
Oregon Coast coho salmon in the EFH consultation.

3. Response to Comment

    No public comments on the proposed designation were received; 
however, a letter from the Oregon Department of Environmental Quality 
(ODEQ) pointed out the need for improved coordination procedures 
between the EPA, the Corps, ODEQ's central office and ODEQ's Coos Bay 
field office for dredging projects in the vicinity of Coos Bay. EPA 
generally supports improved coordination between federal and state 
agencies. Coordination will be a priority for EPA at the new site to 
ensure that disposal activities by the Corps and by local port 
authorities are aware of site restrictions and are adhering to the 
SMMP.

4. Statutory and Executive Order Reviews

    This rule finalizes the de-designation of an existing ocean dredged 
material disposal site, existing Site F, and designates a new ocean 
dredged material disposal site, new Site F. This rule complies with 
applicable executive orders and statutory provisions as follows:

a. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency 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

[[Page 27404]]

the principles set forth in the Executive Order. It has been determined 
that this final action, which simultaneously de-designates an existing 
ocean dredged material disposal site and designates a new site, Site F, 
is not a significant regulatory action under Executive Order 12866 and 
is therefore not subject to OMB review.

b. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., 
because this final action does not establish or modify any information 
or recordkeeping requirements for the regulated community.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

c. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601, et 
seq., generally requires federal agencies to prepare a final regulatory 
flexibility analysis whenever the agency promulgates a final rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business defined by 
the Small Business Administration's Size Regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field. EPA has determined that this action will not 
have a significant economic impact on small entities because the final 
action regulates the location of sites to be used for the disposal of 
dredged materials in ocean waters. After considering the economic 
impacts of today's final action on small entities, I certify that this 
action will not have a significant impact on a substantial number of 
small entities directly regulated by this action.

d. Unfunded Mandates Reform Act

    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. Before promulgating an EPA rule for which a written statement is 
needed, Section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why the 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. Today's action contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
tribal governments or the private sector. It imposes no new enforceable 
duty on any State, local or tribal governments or the private sector. 
Similarly, EPA has also determined that this action contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Thus, today's action is not subject to the 
requirements of sections 202 and 203 of the UMRA.

e. 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 
action 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 action will be effective June 12, 2006.

f. 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'' are 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 various levels of government.'' This action 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 various levels of government, as specified in 
Executive Order 13132. This action addresses the designation and de-
designation of sites near the mouth of Coos Bay, Oregon. Thus, 
Executive Order 13132 does not apply to this action.

[[Page 27405]]

g. 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 action does not have 
tribal implications, as specified in Executive Order 13175. Thus, 
Executive Order 13175 does not apply to this action.

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

    Executive Order 13045 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, the Agency 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 the Agency. This action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 12866 and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The action concerns the designation 
and de-designation of ocean disposal sites and would only have the 
effect of providing designated locations to use for ocean disposal of 
dredged material pursuant to section 102(c) of the MPRSA.

i. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action 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'' as defined under Executive Order 
12866.

j. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272) 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 bodies. The NTTAA directs EPA to provide to 
Congress, through the OMB, explanations when the Agency decides not to 
use available and applicable voluntary consensus standards. Although 
EPA stated that the proposed action did not directly involve technical 
standards, the proposed action and today's final action include 
environmental monitoring and measurement as described in EPA's SMMP. 
EPA will not require the use of specific, prescribed analytic methods 
for monitoring and managing the designated sites. Rather, the Agency 
plans to allow the use of any method, whether it constitutes a 
voluntary consensus standard or not, that meets the monitoring and 
measurement criteria discussed in the final SMMP.

k. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    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 must make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health and 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. Because this action addresses ocean disposal site 
designations (away from inhabited land areas), no significant adverse 
human health or environmental effects are anticipated. The action is 
not subject to Executive Order 12898 because there are no anticipated 
significant adverse human health or environmental effects.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of section 
102 of the Marine Protection, Research, and Sanctuaries Act, as 
amended, 33 U.S.C. 1401, 1411, 1412.

    Dated: April 28, 2006.
L. Michael Bogert,
Regional Administrator, Region 10.

0
For the reasons set out in the preamble, Chapter I of title 40 is 
amended as set forth below:

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 revising paragraphs (n)(4)(i), (ii), 
(iii), (iv), (v), and (vi) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (4) * * *
    (i) Location: 43[deg]22'54.8887'' N, 124[deg]19'28.9905'' W; 
43[deg]21'32.8735'' N, 124[deg]20'37.7373'' W; 43[deg]22'51.4004'' N, 
124[deg]23'32.4318'' W; 43[deg]23'58.4014'' N, 124[deg]22'35.4308'' W 
(NAD 83).
    (ii) Size: 4.45 kilometers long and 2.45 kilometers wide.
    (iii) Depth: Ranges from 6 to 51 meters.
    (iv) Primary Use: Dredged material determined to be suitable for 
ocean disposal.
    (v) Period of Use: Continuing Use.
    (vi) Restriction: Disposal shall be limited to dredged material 
determined to be suitable for unconfined disposal; Disposal shall be 
managed by the restrictions and requirements contained in the 
currently-approved Site Management and Monitoring Plan (SMMP); 
Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 06-4286 Filed 5-10-06; 8:45 am]
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