[Federal Register Volume 73, Number 107 (Tuesday, June 3, 2008)]
[Proposed Rules]
[Pages 31652-31655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12147]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0121]
RIN 1625-AA11


``McCormick & Baxter'' Regulated Navigation Area, Willamette 
River, Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area on 
the Willamette River, Portland Oregon Captain of the Port Zone. This 
action is necessary to preserve the integrity of the engineered pilot 
cap placed over contaminated sediments as part of an Environmental 
Protection

[[Page 31653]]

Agency (EPA) Superfund cleanup action at the McCormick & Baxter 
Creosoting Company Superfund Site. This proposed rule is needed to 
prohibit activities that would cause disturbance of pilot cap material, 
which was placed to isolate and contain underlying contaminated 
sediment.

DATES: Comments and related material must reach the Coast Guard on or 
before July 3, 2008.

ADDRESSES: You may submit comments identified by Coast Guard Docket 
number USCG-2008-0121 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: MST1 Lucia Mack, Waterways Division, 
Sector Portland, OR at 503-240-9301. If you have questions on viewing 
or submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation (DOT) to use the Docket Management 
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0121), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time. Enter the docket number for this rulemaking (USCG-2008-0121) 
in the Search box, and click ``Go>>.'' You may also visit the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review the Department of 
Transportation's Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

Public Meeting

    We do not plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Background and Purpose

    The McCormick & Baxter Creosoting Company operated between 1944 and 
1991, treating wood products with creosote, pentachlorohenol, and 
inorganic (arsenic, copper, chromium, and zinc) preservative solutions. 
Historically, process wastewaters were discharged directly to the 
Willamette River, and other process wastes were dumped in several areas 
of the Site. Significant concentrations of wood-treating chemicals have 
been found in soil and groundwater at the site and in river sediments 
adjacent to the Site. The EPA listed the Site on the National 
Priorities List (NPL) in June 1994 based on information collected by 
DEQ between September 1990 and September 1992. The EPA also designated 
the DEQ as the lead agency for implementing the selected remedy while 
funding for remedial design and construction was primarily provided by 
EPA. The DEQ implemented a number of interim removal measures between 
1992 and 1994, including plant demolition, sludge and soil removals, 
and extraction of creosote from the groundwater aquifers. The Record of 
Decision (ROD) was issued by WPA and DEQ in April 1996 after 
considering public comments on the Proposed Cleanup Plan. The remedy 
addressed contaminated groundwater, soil and sediment. A component of 
the groundwater remedy, initiated in 1994, consisted of an automated 
creosote extraction and groundwater treatment system. However, due to 
poor product recovery and high operating costs, the automated system 
was discontinued in late 2000. Creosote is currently being recovered by 
passive and manual methods. Approximately 6,200 gallons have been 
recovered since 1991. A contingency groundwater remedy was implemented 
in the summer of 2003, with the construction of a combination steel 
sheet pile and soil Bentonite slurry wall surrounding 18 acres. The 
purpose of the barrier wall is to prevent migration of creosote to the 
Willamette River. Implementation of the soil remedy began in March 1999 
with the removal of 33,000 tons of highly contaminated soil and debris. 
The soil remedy was completed in September 2005 following installation 
of a combination impermeable/earthen cap--the impermeable portion 
covering the area within the subsurface barrier wall. The sediment 
remedy was implemented in 2004 and primarily consisted of an armored 
sand cap placed over 23 acres of contaminated sediment. Construction 
occurred during the summers of 2004 and 2005. Sediment cap construction 
performed in 2005 followed construction work performed by the City of 
Portland to stabilize two high pressure sewer lines located within a 
one-acre portion of the sediment cap. In

[[Page 31654]]

addition to the sand layer, an oil adsorptive material known as 
organophyllic clay was used in two creosote seep areas. To protect the 
cap from erosion, the sand and organophyllic clay were armored with a 
combination of rock and articulated concrete blocks. Erosional forces 
evaluated in designing the cap armoring layer included hydraulic-
induced stresses due to river currents associated with a 500-year 
flood, vessel-induced propeller velocities from a tractor tug and 
various sized recreational boats, wind waves associated with a 100-year 
wind storm and vessel wakes associated with various boats including a 
100-ft fireboat traveling at 14 knots. These forces were evaluated for 
river level variations due to tidal action and flood currents. 
Additionally, numerical modeling was used to analyze wave 
transformation and capping of the riverbank with two feet of topsoil, 
turf reinforcement matting and herbaceous vegetation. Revegetation of 
the capped riverbank with native trees and shrubs took place in 
February 2006 after the soil had been stabilized with the native 
grasses planted in November 2004. The DEQ has requested the issuance of 
this RNA in order to prohibit activities that may damage the engineered 
sediment cap at the Site. Although the sediment cap is designed to 
withstand a variety of anticipated erosional forces, the cap is 
susceptible to damage, such as from propeller wash, deployment of barge 
spuds, deployment and dragging of anchors, and grounding of large 
vessels. If the engineered sediment cap were to be damaged by marine 
activities, the contaminated sediments which underlie the cap could be 
released to the river thereby posing an unacceptable threat to public 
health and the environment.

Discussion of Rule

    This proposed rule would create a regulated navigation area (RNA) 
on all waters of the Willamette River encompassed by a line commencing 
at 45[deg]34'33'' N, 122[deg]44'17'' W to 45[deg]34'32'' N, 
122[deg]44'18'' W thence to 45[deg]34'35'' N, 122[deg]44'24'' W thence 
to 45[deg]34'35'' N, 122[deg]44'27'' W thence to 45[deg]34'35'' N, 
122[deg]44'36'' W thence to 45[deg]34'35'' N, 122[deg]44'37'' W thence 
to 45[deg]34'38'' N, 122[deg]44'42'' W to 45[deg]34'39'' N, 
122[deg]44'43'' W thence to 45[deg]34'44'' N, 122[deg]44'51'' W thence 
to 45[deg]34'45'' N, 122[deg]44'53'' W thence to 45[deg]34'47'' N, 
122[deg]44'51'' W thence to 45[deg]34'45'' N, 122[deg]44'46'' W to 
45[deg]34'45'' N, 122[deg]44'45'' W thence to 45[deg]34'47'' N, 
122[deg]44'43'' W thence to 45[deg]34'46'' N, 122[deg]44'42'' W thence 
to 45[deg]34'48'' N, 122[deg]44'40'' W thence to 45[deg]34'48'' N, 
122[deg]44'38'' W and along the shoreline to 45[deg]34'46'' N, 
122[deg]44'39'' W and then back to the point of origin. Vessels are 
prohibited from anchoring, spudding, dredging, laying cable, dragging, 
trawling, conducting salvage operations. Operation of commercial 
vessels of any size, operating recreational vessels greater than 30 
feet in length, and operating other vessels in excess of no wake speed 
or the minimum speed needed to maintain steerage is prohibited.
    Violations of the RNA regulations are punishable by civil penalties 
(not to exceed $35,500 per violation), criminal penalties (imprisonment 
for not more than 10 years and a fine of not more than $250,000) and in 
rem liability against the offending vessel.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget has not reviewed it under that Order.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary. The effect of 
this regulation will not be significant based on the fact there will be 
minimal if any effect on the navigable waterway around the proposed 
regulated area due to the regulated navigation area's proximity to the 
shore. The local maritime community will be informed of the regulated 
navigation area via marine informational Notice to Mariners.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. This proposed rule will affect the following 
entities, some of which may be small entities: The owners or operators 
of vessels intending to transit or anchor in a portion of the 
Willamette River. This proposed rule will not have a significant 
economic impact on a substantial number of small entities because the 
regulated navigation area is limited in size leaving ample room for 
vessels to navigate around the area. Vessels engaged in commerce with 
the existing refueling pipeline located within the site should not be 
affected by this regulation in those activities but are advised to 
minimize potential impacts such as anchoring, wake scouring, and 
dragging in the vicinity of the pilot cap.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact MST1 Lucia Mack, 
Waterways Division, Sector Portland, at 503-240-9301. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard.

Collection of Information

    This calls for no new collection of information under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this proposed rule would not result in such 
expenditure, we do

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discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This proposed rule will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an economically significant rule and 
will not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.1D which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f) and have 
made a preliminary determination that this action is not likely to have 
a significant effect on the human environment. There are no factors in 
this case that would limit the use of a categorical exclusion under 
section 2.B.2 of the Instruction. A preliminary ``Environmental 
Analysis Check List'' supporting this determination is available in the 
docket under ADDRESSES. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
proposed rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

    2. Add Sec.  165.1323 to read as follows:


Sec.  165.1323  Regulated Navigation Area: Willamette River Portland, 
Oregon Captain of the Port Zone.

    (a) Location. The following is a regulated navigation area (RNA): 
All waters of the Willamette River encompassed by a line commencing at 
45[deg]34'33'' N, 122[deg]44'17'' W to 45[deg]34'32'' N, 
122[deg]44'18'' W thence to 45[deg]34'35'' N, 122[deg]44'24'' W thence 
to 45[deg]34'35'' N, 122[deg]44'27'' W thence to 45[deg]34'35'' N, 
122[deg]44'36'' W thence to 45[deg]34'35'' N, 122[deg]44'37'' W thence 
to 45[deg]34'38'' N, 122[deg]44'42'' W to 45[deg]34'39'' N, 
122[deg]44'43'' W thence to 45[deg]34'44'' N, 122[deg]44'51'' W thence 
to 45[deg]34'45'' N, 122[deg]44'53'' W thence to 45[deg]34'47'' N, 
122[deg]44'51'' W thence to 45[deg]34'45'' N, 122[deg]44'46'' W to 
45[deg]34'45'' N, 122[deg]44'45'' W thence to 45[deg]34'47'' N, 
122[deg]44'43'' W thence to 45[deg]34'46'' N, 122[deg]44'42'' W thence 
to 45[deg]34'48'' N, 122[deg]44'40'' W thence to 45[deg]34'48'' N, 
122[deg]44'38'' W and along the shoreline to 45[deg]34'46'' N, 
122[deg]44'39'' W and back to the point of origin. All coordinates 
reference 1983 North American Datum (NAD 83).
    (b) Regulations. (1) Anchoring, spudding, dredging, laying cable, 
dragging, trawling, conducting salvage operations, operating commercial 
vessels of any size, and operating recreational vessels greater than 30 
feet in length are prohibited in the regulated area.
    (2) All vessels transiting or accessing the regulated area shall do 
so at no wake speed or at the minimum speed necessary to maintain 
steerage.

    Dated: May 6, 2008.
J.P. Currier,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
 [FR Doc. E8-12147 Filed 6-2-08; 8:45 am]
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