[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Rules and Regulations]
[Pages 5989-5991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2308]
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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: Final rule.
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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area on
the Willamette River, Portland, Oregon. This action is necessary to
preserve the integrity of the engineered pilot cap placed over
contaminated sediments as part of an Environmental Protection Agency
(EPA) Superfund cleanup action at the McCormick & Baxter Creosoting
Company Superfund Site. This 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: This rule is effective March 6, 2009.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2008-0121 and are available online by going to
http://www.regulations.gov, selecting the Advanced Docket Search option
on the right side of the screen, inserting USCG-2008-0121 in the Docket
ID box, pressing Enter, and then clicking on the item in the Docket ID
column. This material is also available for inspection or copying at
two locations: The 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, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays and U.S. Coast Guard
Sector Portland, 6767 North Basin Ave., Portland, OR 97217, between 8
a.m. and 2 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call MST1 Jaime Sayers, U.S. Coast Guard Sector Portland, Waterways
Management Branch, telephone 503-240-9300. If you have questions on
viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On June 3, 2008, we published a notice of proposed rulemaking
(NPRM) entitled ``McCormick and Baxter Regulated Navigation Area,
Willamette River, Portland, OR'' in the Federal Register (73 FR 31652).
We received no letters commenting on the proposed rule. No public
meeting was requested, and none was held.
Background and Purpose
The McCormick & Baxter Creosoting Company operated between 1944 and
1991, treating wood products with creosote, pentachlorophenol 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 ground water, 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 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. Erosion 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. Revegitation 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
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the cap could be released to the river thereby posing an unacceptable
threat to public health and the environment.
Discussion of Comments and Changes
No comments were received on this rule during the comment period
such that no changes have been made to the rule.
Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This 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 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 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 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 rule will
not have a significant economic impact on a substantial number of small
entities.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. This 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 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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to
assist small entities in understanding the rule so that they could
better evaluate its effects on them and participate in the rulemaking
process.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). 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 rule 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 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 rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect 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 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 rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This 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 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
[[Page 5991]]
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 rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 5100.1 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded
under that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. Therefore, this rule is categorically excluded, under
section 2.B.2. Figure 2-1, paragraph (34)(g), of the Instruction and
neither an environmental assessment nor an environmental impact
statement is required. This rule involves the establishing,
disestablishing, or changing Regulated Navigation Areas, and security
or safety zones. An environmental analysis checklist and a categorical
exclusion determination are available in the docket where indicated
under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, and Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
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, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
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: December 2, 2008.
J.P. Currier,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard
District.
[FR Doc. E9-2308 Filed 2-3-09; 8:45 am]
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