[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Proposed Rules]
[Pages 60662-60670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24176]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2008-0745; FRL-8728-6]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Site Offshore of the Rogue River, OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is withdrawing an earlier proposal to designate an ocean 
dredged material disposal site near the mouth of the Rogue River, 
Oregon, and is re-proposing to designate an ocean dredged material 
disposal site located offshore of the Rogue River, Oregon. EPA's 
proposed rule was published at 56 FR 47173 (September 18, 1991). 
Changes since that time to the ocean dumping program, including changes 
to the Marine Protection, Research, and Sanctuaries Act, as amended 
(MPRSA), 33 U.S.C. 1401 to 1445, give rise to EPA's decision to re-
propose the site designation to take into account the statutory changes 
since the original proposal and to incorporate new data about the site. 
The new site is needed primarily to serve the long-term need for a 
location to dispose of material dredged from the Rogue River navigation 
channel, and will also serve to provide a location for the disposal of 
dredged material for persons who have received a permit for such 
disposal. The newly designated site will be subject to ongoing 
monitoring and management to ensure continued protection of the marine 
environment.

DATES: Comments on this proposed rule must be received by November 13, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OW-2008-0745 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Mail: Jonathan Freedman, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-183), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OW-
2008-0745. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through the Web site, http://www.regulations.gov, or through e-mail. The http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through the Web site, http://www.regulations.gov, your e-
mail address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy during 
normal business hours at the U.S. Environmental Protection Agency, 
Region 10, Library, 10th Floor, 1200 Sixth Avenue, Suite 900, 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 
the hours of 9 a.m. to 11:30 a.m., and between the hours of 1 p.m. to 4 
p.m., Monday through Friday, excluding legal holidays, for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Jonathan Freedman, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-183), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101, phone number: (206) 553-0266, e-mail: 
[email protected], or contact Jessica Winkler, U.S. 
Environmental Protection Agency, Region 10, Office of Ecosystems, 
Tribal and Public Affairs (ETPA-183), Aquatic Resources Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: (206) 
553-7369, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

1. Potentially Affected Persons

    Persons potentially affected by this proposed 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 (MPRSA), 33 U.S.C. 1401 to 1445. EPA's 
action would be relevant to persons, including organizations and 
government bodies, seeking to dispose of dredged material in ocean 
waters offshore of the Rogue River, Oregon. Currently, the U.S. Army 
Corps of Engineers (Corps) would be most impacted by this proposed 
action. Potentially affected categories and persons include:

------------------------------------------------------------------------
                                      Examples of potentially regulated
             Category                              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.

[[Page 60663]]

 
State, local and tribal             Governments owning and/or
 governments.                        responsible for ports, harbors, and/
                                     or berths; Government agencies
                                     requiring disposal of dredged
                                     material associated with public
                                     works projects.
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    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 contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

2. Background

a. History of Disposal Site Offshore of the Rogue River, Oregon

    The proposed Rogue River ocean dredged material disposal site, or 
areas in the same vicinity, have been used by the Corps since 
approximately 1962. When the MPRSA was enacted, the site became an 
``interim'' site under the ocean dumping regulations, a status 
superseded by later statutory changes to the MPRSA. The site currently 
exists as a site selected by the Corps under Section 103 of the MPRSA. 
EPA concurred on the selection of the site and, in 2003, approved the 
Corps' request to continue to use the site through the end of the 2008 
dredging season. Site designation, pursuant to Section 102 of the 
MPRSA, is necessary for any use of the site to continue after 2008.
    From 1986 through 2006, over 1.1 million cubic yards (cy) of 
dredged material were placed at the Rogue River site. A uniform 
placement strategy, rather than point dumping, has been applied to the 
disposal of material at the site and regular bathymetric surveys have 
shown that persistent mounding has not occurred within the site or in 
the vicinity of the site. Site capacity appears to be virtually 
unlimited. Data collected at the site and modeling indicate that 
material disposed at the site redistributes out of the site and is 
presumed to feed the littoral cell. Consequently, the site is a sound 
candidate location to propose for designation pursuant to Section 102 
of the MPRSA.

b. Location and Configuration of Proposed Rogue River Ocean Dredged 
Material Disposal Site

    Today, EPA withdraws the rule the Agency proposed on September 18, 
1991, at 56 FR 47173 to designate a Rogue River site, and 
simultaneously proposes to designate the Rogue River ocean dredged 
material site at the coordinates listed below. The figure below shows 
the Rogue River ocean dredged material disposal site (Rogue River ODMDS 
or Site) EPA proposes to designate today. This configuration is 
expected to allow dredged material disposed in shallower portions of 
the site to naturally disperse into the littoral zone without creating 
mounding conditions that could contribute to adverse impacts to 
navigation. The proposed configuration will allow EPA to ensure that 
disposal of dredged material into the Site will be managed so that as 
much material as possible is retained in the active littoral drift area 
to augment shoreline building processes.

[[Page 60664]]

[GRAPHIC] [TIFF OMITTED] TP14OC08.052

    The coordinates for the Rogue River ODMDS, as proposed today, are, 
in North American Datum 83 (NAD 83):

42[deg]24[min]15.40[sec] N           124[deg]26[min]52.39[sec] W
42[deg]24[min]03.40[sec] N           124[deg]26[min]39.39[sec] W
42[deg]23[min]39.40[sec] N           124[deg]27[min]17.40[sec] W
42[deg]23[min]51.40[sec] N           124[deg]27[min]30.40[sec] W
 

    The Site is expected to occupy approximately 116 acres. The Site's 
dimensions, as proposed, are: 1,400-feet wide by 3,600-feet long, with 
Site depth ranging from approximately 50 to 90 feet. The Site generally 
lies on bottom contours sloping at a rate of 8/1000 feet to the west-
southwest. The disposal area, placement area, and drop zone are 
identical. Limited onshore transport of material disposed of at the 
proposed Site is not expected because of the nature of the prevailing 
currents and wave transport in the vicinity of the Site. Net predicted 
material transport at the proposed Site is southward in the summer 
months and northward during the remainder of the year. These transport 
mechanisms are expected to move material into the active littoral drift 
area.

c. Management and Monitoring of the Proposed Site

    The proposed Rogue River ODMDS is expected to receive sediments 
dredged by the Corps to maintain the federally authorized navigation 
project at the Rogue River, Oregon and dredged material from other 
persons who have obtained a permit for the disposal of dredged material 
at the Site. The ocean dumping regulations do not require a 
modification of any existing permits. All persons using the Site are 
required to follow the Site Management and Monitoring Plan (SMMP) for 
the Rogue River ODMDS. The SMMP is available as a draft document for 
review and comment by the public as of today's action proposing the 
Rogue River ODMDS designation. The draft SMMP includes management and 
monitoring requirements to ensure that dredged materials disposed at 
the Site are suitable for disposal and addresses the timing of disposal 
events to minimize interference with other uses of ocean waters in the 
vicinity of the proposed Site.

d. MPRSA Criteria

    In proposing to designate the Rogue River ODMDS, EPA assessed the 
proposed action against the criteria of the MPRSA, with particular 
emphasis on the general and specific regulatory criteria of 40 CFR Part 
228, to determine if the proposed site designation satisfies those 
criteria.

[[Page 60665]]

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 this 
proposed rule included a review of the potential for interference with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas. While limited overlap was found to 
exist between disposal operations and salmon fishing, no observable 
conflicts were identified. No evidence was found to suggest that the 
proposed Site would cause interference with fisheries or with 
navigation in the Rogue River navigation channel. The proposed Site has 
been used over the past decades for dredged material disposal, most 
recently pursuant to Section 103 of the MPRSA as a site selected by the 
Corps, with EPA's concurrence. Mariners in this area are accustomed to 
Site use.
    (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)).
    Dredged material found suitable for disposal into ocean waters, as 
characterized by chemical and biological testing or as evaluated 
according to 40 CFR 227.13, will be the only material allowed to be 
disposed of at the proposed Site. Modeling work performed by the Corps 
demonstrates that water column turbidity would dissipate for an 
anticipated 97% of the coarser material within a few minutes of 
disposal, while the remaining 3% of the material, which would be 
classified as fine-grained, would dissipate within a half hour. 
Therefore, based on modeling, monitoring data, and history of use, no 
contaminant or water quality effects would be expected to reach any 
beach, shoreline, or other area outside of the proposed Site. Over 
time, some of the suitable disposed material would be expected to 
migrate into the littoral system, and potentially to coastal 
shorelines.
    (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 the proposed Rogue River 
Site as defined under the Ocean Dumping regulations. The designation of 
the proposed Site is necessary because no location for the disposal of 
dredged material will exist in the vicinity of the proposed Site after 
the end of the 2008 dredge season.
    (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 proposed 
Site tends to be moderately dispersive in the near-shore area and tends 
to be less dispersive farther from shore. The overall stability of the 
Site, as indicated by the lack of adverse mounding, is a significant 
component of the justification for the size of the Site. Data collected 
by the Corps through bathymetric monitoring show the spread and 
movement of material after placement. The data establish that material 
from the Site eventually disperses over the footprint of the site with 
seasonal movement into the littoral system. Effective monitoring of the 
proposed Site is anticipated based on past practice and current ability 
to monitor the location and conduct surveillance.
    (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)).
    The proposed Site would be located where historic disposal has 
occurred with only minimal impact to the environment, and to other uses 
and amenities. Locations off the continental shelf in the Pacific ocean 
as a general rule are inhabited by stable benthic and pelagic 
ecosystems on steeper gradients that are not well adapted to frequent 
disturbance events such as would occur if disposal of dredged material 
took place. Monitoring and surveillance of a site located beyond the 
edge of the continental shelf would be challenging and would present 
safety concerns for crew transporting the material to be disposed. In 
addition, dredged material disposed at a location beyond the 
continental shelf would not be available to the littoral system. The 
loss of material would potentially have a negative impact the mass 
balance of the system with a resulting negative impact on erosion/
accretion patterns along this limited area of coastline near the Rogue 
River.
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 of this proposal, the 
geographical position, including the depth of the proposed Site, bottom 
topography, and distance from the coastline in the vicinity of the 
proposed Site, indicate that designation of the proposed Site will not 
cause adverse effects to the marine environment. Based on EPA's 
understanding of currents at the proposed Site and their influence on 
the movement of material in the area, there is a high likelihood that 
much of the material disposed at the Site will be transported to the 
littoral system. This movement is expected to allow for long-term 
disposal without creation of adverse mounding conditions.
    (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)).
    The proposed Site is not located in exclusive breeding, spawning, 
nursery or feeding areas for adult or juvenile phases of living 
resources. Many nearshore pelagic organisms occur in the water column 
over the proposed Site but these organisms are found off most of the 
Pacific coast and are not unique to the proposed Site. Benthic fauna 
common to nearshore, sandy, wave-influenced regions that exist along 
the Pacific coast that are found at the proposed Site are generally 
well-suited to survive in this dynamic environment and have been found 
to adapt well to natural and human perturbations. Benthic communities 
are expected to rapidly recolonize in the event of burying after 
disposal. Near the proposed Site, a variety of pelagic and demersal 
fish species, as well as shellfish, are found. Anadromous salmonids are 
found at all seasons in the nearshore area off the mouth of the Rogue 
River. Seals and sea lions also inhabit the lower Rogue River and 
coastal area. Nesting areas offshore of the Rogue River entrance 
channel support a variety of avian species. Whales and sea turtles are 
present seasonally offshore of the coastline in this area, but are 
generally observed further offshore than the proposed site. No unique 
breeding, spawning, nursery, feeding, or passage habitat is located 
within the proposed Site or within its

[[Page 60666]]

immediate vicinity. Based on modeling of the water column, which 
indicates that turbidity would be expected to dissipate fairly rapidly, 
any avoidance behavior by any species at the proposed Site would be 
short-term.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The proposed Site, although located in close proximity to the Rogue 
River navigation channel, is located a sufficient distance offshore to 
avoid adverse impacts to beaches and other amenity areas. The local 
beaches support tourism, and recreational and commercial fishing. 
Transportation of dredges or barges to and from the proposed Site to 
dispose of dredged material is expected to be coordinated so as to 
avoid disturbance of other activities near the Rogue River entrance 
channel. Dredged material disposed of at the proposed Site is expected 
to disperse into the littoral system, with a possible positive effect 
over time of reducing erosion of coastal beaches.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material found suitable for disposal into ocean waters, as 
characterized by chemical and biological testing or as evaluated 
according to 40 CFR 227.13, will be the only material allowed to be 
disposed of at the proposed Site. No material defined as ``waste'' 
under the MPRSA will be allowed to be disposed of at the proposed Site. 
The dredged material expected to be disposed of at the Site will be 
predominantly marine sand, far removed from known sources of 
contamination. The physical and chemical analyses of material from the 
Rogue River Navigation Channel and boat basin indicated only two 
anomalies. The first is an elevated level of nickel relative to other 
river drainage basins along the Oregon coast. Since elevated nickel 
levels have been detected in Rogue River channel sediments 
historically, those levels are believed to reflect the ambient 
background for the Rogue River system. The second was an elevated level 
of phenol in one sample location. The sediments associated with the 
elevated phenol sample will not be dredged until further 
characterization can be completed and disposal of the material at the 
proposed Site will not take place unless and the material has been 
found to be suitable for unconfined ocean disposal.
    With respect to proposed methods of releasing material at the 
proposed Site, material will be released just below the surface from 
dredges while the dredges are under power and slowly transiting the 
proposed Site. This method of release is expected to spread material at 
the Site to minimize mounding and to minimize impacts to the benthic 
community and other species in the Site at the time of a disposal 
event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    Monitoring and surveillance at the proposed Site are expected to be 
feasible and easily performed from small surface research vessels. The 
proposed Site is accessible for bathymetric and side-scan sonar 
surveys. At a minimum, it is expected that annual bathymetric surveys 
will be conducted at the proposed Site to confirm that no unacceptable 
mounding is taking place within the Site or its immediate vicinity. 
Routine monitoring is expected to concentrate on examining how the 
distribution of material in the near-shore portions of the Site augment 
littoral processes and how distribution of material in the deeper 
portions of the Site 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)).
    Dispersal, horizontal transport and vertical mixing characteristics 
of the area at and in the vicinity of the proposed Site are complex. In 
part, this complexity is a result of rocky reefs to the north of the 
proposed Site which appear to influence mass transport, and in part the 
complexity can be attributed to prevailing wave-induced motion and 
currents moving towards the north during much of the year. Wave-induced 
motion appears to cause near-constant mobilization of bottom sediment. 
The overall regional mass transport trend suggests that net littoral 
transport of material is to the north from the proposed Site. That 
overall littoral transport appears to be balanced by offshore transport 
from the mouth of the Rogue River to the north of the proposed Site 
such that there is shoreline accretion to the north and relative 
equilibrium of the shoreline to the south.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The approximate annual loading volume of dredged material placed at 
the proposed Site is expected to equal 54,000 cubic yards (cy) of 
material. This average was calculated by averaging seasonal material 
placement over disposal seasons from the time the site became a 
selected site. EPA's evaluation of historical data and modeling 
conducted by the Corps concluded that past disposal operations have not 
resulted in unacceptable environmental degradation and future disposal 
of dredged material is not expected to result in unacceptable 
environmental degradation. Although mounding is a potential effect at 
any dredged material disposal site, bathymetric surveys at the Rogue 
River ODMDS have not shown persistent mounding over the 30 year site 
use history. Annual monitoring of the proposed Site will be required in 
the draft SMMP for the proposed Site. In the unlikely event mounding 
occurred, the draft SMMP includes requirements for managing the 
proposed Site to address mounding issues.
    (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)).
    Designation of the proposed Site is not expected to interfere with 
shipping, fishing, recreation or other legitimate uses of the ocean. 
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 near-shore portion of the 
proposed Site. Commercial and recreational fishing and commercial 
navigation are the primary uses for which such timing will be needed. 
No plans for mineral extraction offshore of the Rogue River are planned 
or proposed for this area. Data indicates that magnetic anomalies 
suggestive of mineral placer offshore deposits were actually 
attributable to near-surface masses of bedrock. No desalination or 
energy projects are planned in the vicinity of the proposed Site. Fish 
and shellfish culture operations are not under consideration for the 
area. There are no known areas of scientific importance in the vicinity 
of the proposed 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)).
    EPA has not identified any adverse water quality impacts from ocean 
disposal of dredged material as a result of disposal into the existing 
103(b)-selected site at the Rogue River. The data collected for the 
103(b)-selected site suggest that the pelagic and benthic communities, 
which are widespread in occurrence off the Oregon coast, are not 
expected to experience long-term impacts. The ability of this mobile 
sand community to rapidly recolonize

[[Page 60667]]

supports the conclusion that long-term adverse impacts will not occur 
from managed disposal of dredged material at the proposed Site.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed Site. Material expected to be disposed at the 
proposed Site will primarily be marine sands but some fine-grained 
material, finer than natural background, may also be disposed. While 
this finer-grained material could have the potential to attract 
nuisance species to the proposed Site, no such recruitment has occurred 
while the proposed Site has been used as a 103(b)-selected site. 
Evidence suggests that such fine grained material is quickly dispersed 
from the site. The draft SMMP includes specific biological monitoring 
requirements, which would act to identify any nuisance species, and 
management requirements, which would allow EPA to direct special 
studies and/or operational changes to address the issue.
    (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)).
    The proposed Site is located about two nautical miles south-
southeast from the Rogue Reef complex, an ecologically unique feature 
among a system of neritic reefs off the Oregon coast. Material disposed 
at the proposed Site would be clean sand that is expected to settle to 
the seafloor quickly. Movement of the relatively small quantities of 
disposed sand into the reef area would be anticipated to occur, if at 
all, through naturally occurring littoral transport which would not be 
expected to adversely affect aquatic communities in the reef areas. No 
significant cultural features have been identified at, or in the 
vicinity of, the proposed Site. As discussed further below, EPA 
coordinated with Oregon's State Historic Preservation Officer and with 
Tribes in the vicinity of the proposed Site to identify any cultural 
features. None were identified. No shipwrecks were observed or 
documented within the proposed Site or its immediate vicinity. 
Notwithstanding heavy ship traffic supplying gold fields near this 
general area in the 1800s, side-scan sonar did not detect any 
shipwrecks and extensive review of shipwreck databases did not show any 
shipwrecks at, or near, the proposed Site.

e. National Environmental Policy Act (NEPA); Magnuson-Stevens Act 
(MSA); Marine Mammal Protection Act (MMPA); Coastal Zone Management Act 
(CZMA); Endangered Species Act (ESA); National Historic Preservation 
Act (NHPA)

(1) NEPA
    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires that Federal agencies 
prepare an Environmental Impact Statement (EIS) for 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 because the courts have exempted EPA's actions under the 
MPRSA from the procedural requirements of NEPA through the functional 
equivalence doctrine. Under that doctrine, as EPA discussed most 
recently in the Agency final rule revising the NEPA regulations, the 
courts reasoned that actions under the MPRSA are functionally 
equivalent to the analysis required under NEPA because such actions are 
undertaken with full consideration of environmental impacts and with 
opportunities for public involvement. See 72 FR 53653, September 19, 
2007. EPA has, by policy, determined that the preparation of non-EIS 
NEPA documents for certain EPA regulatory actions, including actions 
under the MPRSA, is appropriate. EPA's ``Notice of Policy and 
Procedures for Voluntary Preparation of NEPA Documents,'' (Voluntary 
NEPA Policy), 63 FR 58045 (October 29, 1998), sets out both the policy 
and procedures EPA uses when preparing such environmental review 
documents. EPA's 2007 revisions to 40 CFR Part 6 provided the framework 
EPA used to prepare the voluntary NEPA documents for this proposed 
action.
    EPA's primary voluntary NEPA document for designating the proposed 
Site is the Rogue River, Oregon Ocean Dredged Material Disposal Site 
Evaluation Study and Environmental Assessment, 2008 (EA), jointly 
prepared by EPA and the Corps. The EA and its Technical Appendices, 
which are part of the docket for today's proposed action, provide the 
threshold environmental review for the Site designation. The 
information from the EA is used extensively, above, in the discussion 
of the ocean dumping criteria. Because EPA's Voluntary NEPA Policy does 
not require the preparation of an EIS for this proposed action, the EA 
prepared for this Site designation is available for public comment and 
a final EA will be made available at the time of final rulemaking. 
Persons interested in commenting on this issue should do so at this 
time. There may not be another opportunity to comment.
(2) MSA and MMPA
    In the spring of 2008, EPA initiated consultation with the National 
Marine Fisheries Service (NMFS) concerning essential fish habitat and 
protected marine mammals. EPA prepared an essential fish habitat (EFH) 
assessment pursuant to Section 305(b), 16 U.S.C. 1855(b), of the 
Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d. NMFS 
is also reviewing EPA's EFH assessment and ESA Biological Assessment 
for purposes of the Marine Mammal Protection Act of 1972, as amended 
(MMPA), 16 U.S.C. 1361 to 1389. Consultation under both MMPA and MSA is 
still underway, but is expected to conclude before EPA takes any action 
to finalize today's proposed rule. Persons interested in commenting on 
this issue should do so at this time. There may not be another 
opportunity to comment.
(3) CZMA
    EPA initiated consultation with the state of Oregon on coastal zone 
management issues in June and July of 2008. EPA prepared a consistency 
determination for the Oregon Ocean and Coastal Management Program 
(OCMP) to meet the requirements of the Coastal Zone Management Act, as 
amended, (CZMA), 16 U.S.C. 1451 to 1465, and will submit that 
determination formally to the Oregon Department of Land Conservation 
and Development (DLCD) for review.
(4) ESA
    EPA initiated informal consultation with NMFS and the U.S. Fish and 
Wildlife Service on its action to designate the Rogue River ODMDS 
beginning in the spring of 2008. EPA prepared a Biological Assessment 
to assess the potential effects of the Site designation on aquatic and 
wildlife species to determine whether or not its action might adversely 
affect species listed as endangered or threatened and/or adversely 
modify or destroy their designated critical habitat. EPA found that its 
action would not be likely to adversely affect aquatic or wildlife 
species listed as endangered pursuant to the Endangered Species Act, as 
amended (ESA), 16 U.S.C. 1531 to 1544, 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 associated with reasonably foreseeable future disposal

[[Page 60668]]

activities 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 or critical habitat.
    The U.S. Fish and Wildlife Service (USFWS) concurred with EPA's 
finding that EPA's action to designate the proposed Rogue River ODMDS 
would not likely adversely affect listed species or critical habitat. 
Consultation with the USFWS for this proposed action is complete. The 
National Marine Fisheries Service (NMFS) is still reviewing the 
proposed action, but consultation with NMFS is expected to be completed 
before EPA takes any action to finalize today's proposed rule. EPA 
specifically requests that any comments concerning ESA be made at this 
time. This may be the only opportunity for interested persons to 
comment on this issue.
(5) NHPA
    EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) to address National Historic Preservation 
Act, as amended (NHPA), 16 U.S.C. Sections 470 to 470a-2, which 
requires Federal agencies to take into account the effect of their 
actions on districts, sites, buildings, structures, or objects, 
included in, or eligible for inclusion in the National Register. EPA 
determined that no historic properties were affected, or would be 
affected, by the proposed designation of the Site. EPA did not find any 
historic properties within the geographic area of the proposed Site. 
This determination was based on an extensive review of the National 
Register of Historic Districts in Oregon, the Oregon National Register 
list and an assessment of cultural resources near the proposed Site. 
Side scan sonar of the proposed Site did not reveal the presence of any 
shipwrecks or other cultural or historic properties. This consultation 
is expected to be completed before EPA takes any action to finalize 
today's proposed rule. EPA specifically requests that any comments 
concerning NHPA be made at this time. This may be the only opportunity 
for interested persons to comment on this issue.

3. Statutory and Executive Order Reviews

    This rule proposed to designate an ocean dredged material disposal 
site pursuant to Section 102 of the MPRSA. This rule complies with 
applicable executive orders and statutory provisions as follows:

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

(2) Paperwork Reduction Act

    This proposed 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 proposed rule does not establish or modify 
any information or recordkeeping requirements for the regulated 
community and only seeks to authorize the pre-existing requirements 
under State law and imposes no additional requirements beyond those 
imposed by State law.
    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 Title 40 of the CFR are listed in 40 CFR Part 9.

(3) Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), generally requires Federal 
agencies to prepare a regulatory flexibility analysis of any 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 Part 
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 proposed rule will only have the effect of regulating the location 
of a site to be used for the disposal of dredged material in ocean 
waters. After considering the economic impacts of today's rule, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. EPA continues to be interested 
in the potential impacts of the proposed rule on small entities and 
welcomes comments on issues related to such impacts.

(4) Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 to 1538, for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty

[[Page 60669]]

on any State, local, or tribal governments or the private sector. 
Therefore, this action is not subject to the requirements of sections 
202 or 205 of the UMRA. This action is also not subject to the 
requirements of section 203 of the UMRA because it contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Those entities are already subject to 
existing permitting requirements for the disposal of dredged material 
in ocean waters.

(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 various levels of government.'' This 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 various levels of government, as specified in 
Executive Order 13132. This rule proposes to designate a site for the 
disposal of dredged material in ocean waters. Thus, Executive Order 
13132 does not apply to this rule. In the spirit of Executive Order 
13132, and consistent with EPA policy to promote communications between 
EPA and State and local governments, EPA specifically solicits comment 
on this proposed rule from State and local officials.

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

    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175 because the designation of this dredged 
material disposal Site will not have a direct effect on 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. Thus, Executive Order 13175 does 
not apply to this rule. Although Executive Order 13175 does not apply 
to this proposed rule EPA consulted with tribal officials in the 
development of this rule, particularly as it relates to potential 
impacts to historic or cultural resources. EPA specifically solicits 
additional comment on this proposed rule from tribal officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. The proposed action concerns the designation of an ocean 
disposal Site and would only have the effect of providing a designated 
location to use for ocean disposal of dredged material pursuant to 
section 102(c) of the MPRSA.

(8) 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.

(9) 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 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. The proposed 
action includes environmental monitoring and measurement as described 
in EPA's draft SMMP. EPA will not require the use of specific, 
prescribed analytic methods for monitoring and managing the proposed 
Site once designated. 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. EPA welcomes comments on this aspect of the proposed 
rulemaking and, specifically, invites the public to identify 
potentially-applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.

(10) Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this proposed 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. EPA has assessed the overall protectiveness of designating 
the proposed disposal Site against the criteria established pursuant to 
the MPRSA to ensure that any adverse impact on the environment will be 
mitigated to the greatest extent practicable.

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: October 1, 2008.
Elin D. Miller,
Regional Administrator, Region 10.

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

PART 228--[AMENDED]

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

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

    2. Section 228.15 is amended by adding paragraph (n)(6) as follows:

[[Page 60670]]

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (6) Rogue River, OR--Dredged Material Site
    (i) Location: 42[deg]24[min] 5.40[sec] N, 124[deg]26[min]52.39[sec] 
W; 42[deg]24[min]03.40[sec] N, 124[deg]26[min]39.39[sec] W; 
42[deg]23[min]39.40[sec] N, 124[deg]27[min]17.40[sec] W; 
42[deg]23[min]51.40[sec] N, 124[deg]27[min]30.40[sec] W (NAD 83)
    (ii) Size: Approximately 1.1 kilometers long and 0.4 kilometers 
wide.
    (iii) Depth: Ranges from approximately 15 to 27 meters
    (iv) Primary Use: Dredged material
    (v) Period of Use: Continuing Use
    (vi) Restrictions: (1) Disposal shall be limited to dredged 
material determined to be suitable for ocean disposal according to 40 
CFR 227.13, from the Rogue River navigation channel and adjacent areas; 
(2) Disposal shall be managed by the restrictions and requirements 
contained in the currently approved Site Management and Monitoring Plan 
(SMMP); (3) Monitoring, as specified in the SMMP, is required.
    (7) (reserved)

 [FR Doc. E8-24176 Filed 10-10-08; 8:45 am]
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