[Federal Register Volume 75, Number 23 (Thursday, February 4, 2010)]
[Proposed Rules]
[Pages 5708-5715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2395]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2010-0086; FRL-9109-4]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Sites Offshore of the Siuslaw River, OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to designate two new ocean dredged material 
disposal sites near the mouth of the Siuslaw River, Oregon, pursuant to 
the Marine Protection, Research and Sanctuaries Act, as amended 
(MPRSA). The new sites are needed primarily to serve the long-term need 
for a location to dispose of material dredged from the Siuslaw River 
navigation channel, and to provide a location for the disposal of 
dredged material for persons who have received a permit for such 
disposal. The newly designated sites 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 no later than 
March 8, 2010.

ADDRESSES: For more information on this proposed rule, Docket ID No. 
EPA-R10-OW-2010-0086 use one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for accessing the docket and materials related to this 
proposed rule.
     E-mail: [email protected].
     Mail: Jessica Winkler, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-088), Environmental Review and Sediment Management Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101.
    Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy during 
normal business hours for the regional library 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 12 
p.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: Jessica Winkler, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-083), Environmental Review and Sediment Management 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 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 
proposed action would be relevant to persons, including organizations 
and government bodies seeking to dispose of dredged material in ocean 
waters offshore of the Siuslaw River, Oregon. Currently, the U.S. Army 
Corps of Engineers (Corps) would be most affected by this action. 
Potentially affected categories and persons include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated persons
------------------------------------------------------------------------
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....  Governments owning and/or
                                          responsible for 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 contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

[[Page 5709]]

2. Background

a. History of Disposal Sites Offshore of the Siuslaw River, Oregon

    Historically, three ocean dredged material disposal sites, an 
Interim Site and two selected sites were used by the U.S. Army Corps of 
Engineers (Corps) for the disposal of sediments dredged from the 
Siuslaw River navigation project. The ``Interim Site,'' former Site A, 
was included in the list of approved interim ocean disposal sites for 
dredged material in the Federal Register in 1977 (42 FR 2461), a status 
superseded by later statutory changes to the MPRSA. Mounding at Site A 
and concern over the potential for ocean currents to move sediments 
from Site A back into the dredged channel resulted in a selection of 
disposal Sites B and C by the Corps pursuant to Section 103 of the 
MPRSA. That authority allows the Corps to select a site or sites for 
disposal when a site has not been designated by EPA. The selection of 
Sites B and C was intended to reduce potential hazards associated with 
mounding at Site A. The selection of Sites B and C was also intended to 
increase long-term disposal site capacity near the mouth of the Siuslaw 
River. EPA concurred on the selection and approved the Corps' request 
to continue to use Sites B and C through the end of the 2009 dredging 
season. Sites B and C, as selected, are not suitable for designation by 
EPA pursuant to Section 102 of the MPRSA because of mounding taking 
place in both sites. To provide for sufficient disposal capacity over 
the long term, EPA proposes to designate two sites, a North Site and a 
South Site, for the ocean disposal of dredged material near the Siuslaw 
River in the vicinity of former Sites A, B and C.
    The proposed designation of the two ocean disposal sites for 
dredged material does not mean the Corps or EPA has approved of the use 
of the sites for open water disposal of dredged material from any 
specific project. Before disposal of dredged material at either of the 
proposed Siuslaw River Sites can commence by any person, EPA and the 
Corps must evaluate the project according to the ocean dumping 
regulatory criteria (40 CFR part 227) and authorize disposal. EPA 
independently evaluates proposed dumping and has the right to restrict 
and/or disapprove of the actual disposal of dredged material if EPA 
determines that environmental requirements under the MPRSA have not 
been met.

b. Location and Configuration of Siuslaw River Ocean Dredged Material 
Disposal Sites

    This action proposes the designation of two Siuslaw River ocean 
dredged material sites to the north and south, respectively, of the 
mouth of the Siuslaw River. The coordinates, listed below, and Figure 
1, below, show the location of the two proposed Siuslaw River ocean 
dredged material disposal sites (Siuslaw River ODMD Sites, North and 
South Sites, or Sites). The configuration of the North Site is expected 
to allow dredged material disposed in shallower portions of the Site to 
naturally disperse into the littoral zone and augment shoreline 
building processes. The proposed designation of two Sites will allow 
EPA to adaptively manage the Sites to avoid creating mounding 
conditions that could contribute to adverse impacts to navigation.
    The coordinates for the two Siuslaw River ODMD Sites are, in North 
American Datum 83 (NAD 83):

------------------------------------------------------------------------
        North Siuslaw ODMD site              South Siuslaw ODMD site
------------------------------------------------------------------------
44[deg]01'31.03'' N, 124[deg]10'12.92''  44[deg]00'46.72'' N,
 W.                                       124[deg]10'26.55'' W.
44[deg]01'49.39'' N, 124[deg]10'02.85''  44[deg]01'06.41'' N,
 W.                                       124[deg]10'24.45'' W.
44[deg]01'31.97'' N, 124[deg]09'01.86''  44[deg]01'04.12'' N,
 W.                                       124[deg]09'43.52'' W.
44[deg]01'13.45'' N, 124[deg]09'11.41''  44[deg]00'44.45'' N,
 W.                                       124[deg]09'45.63'' W.
------------------------------------------------------------------------

    The two Sites would be situated in approximately 30 to 125 feet of 
water located to the north and south of the entrance to the Siuslaw 
River on the southern Oregon Coast (see Figure 1). The dimensions of 
the proposed Sites are 4,800 by 2,000 feet and 3,000 by 2,000 feet, 
respectively.

[[Page 5710]]

[GRAPHIC] [TIFF OMITTED] TP04FE10.001

c. Management and Monitoring of the Sites

    The proposed Siuslaw Sites are expected to receive sediments 
dredged by the Corps to maintain the federally authorized navigation 
project at the Siuslaw River, Oregon and dredged material from other 
persons who have obtained a permit for the disposal of dredged material 
at the Sites. All persons using the Sites are required to follow a Site 
Management and Monitoring Plan (SMMP) for the Sites. The SMMP includes 
management and monitoring requirements to ensure that dredged materials 
disposed at the Sites are suitable for disposal in the ocean and that 
adverse impacts of disposal, if any, are addressed to the maximum 
extent practicable. The SMMP for the Siuslaw River Sites, in addition 
to the aforementioned, also addresses management of the Sites to ensure 
adverse mounding does not occur and to ensure that disposal events are 
timed to minimize interference with other uses of ocean waters in the 
vicinity of the proposed Sites. The SMMP is available as a draft 
document for review and comment at this time. The public is encouraged 
to take advantage of this opportunity to read and submit comments on 
the draft SMMP.

d. MPRSA Criteria

    In proposing to designate these Sites, EPA assessed the proposed 
Sites against the criteria of the MPRSA, with particular emphasis on 
the general and specific regulatory criteria of 40 CFR part 228, to 
determine whether the proposed site designations satisfy those 
criteria. EPA's draft Siuslaw River, Oregon Ocean Dredged Material 
Disposal Sites Evaluation Study and Environmental Assessment (EA),

[[Page 5711]]

provides an extensive evaluation of the criteria and other related 
factors for the designation of these Sites. The EA is available as a 
draft document for review and comment at this time. The public is 
encouraged to take advantage of this opportunity to read and submit 
comments on the draft EA.
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 reviewed the potential for the Sites to interfere with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas and found low potential for conflicts. 
The proposed Sites would be located close to the approach to the 
Siuslaw River entrance channel but are unlikely to cause interference 
with navigation or other uses near the mouth of the Siuslaw River 
provided close communication and coordination is maintained with other 
users, vessel traffic control and the U.S. Coast Guard (USCG). Based on 
the past history of fishing and disposal operations near the mouth of 
the Siuslaw River use conflicts are not expected to occur. There is the 
potential for other recreational users, for example, surfers, boaters, 
boarders, and divers, to use the near-shore area in the vicinity of the 
Sites, but EPA does not expect disposal operations at the Sites to 
conflict with recreationists. The draft SMMP outlines site management 
objectives, including minimizing interference with other uses of the 
ocean. Should a site use conflict be identified, site use could be 
modified according to the SMMP to minimize that conflict.
    (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)).
    Based on EPA's review of modeling, monitoring data, analysis of 
sediment quality, and history of use, no detectable contaminant 
concentrations or water quality effects, e.g., suspended solids, would 
be expected to reach any beach or shoreline from disposal activities at 
the Sites. The primary impact of disposal activities on water quality 
is expected to be temporary turbidity caused by the physical movement 
of sediment through the water column. All dredged material proposed for 
disposal will be evaluated according to the ocean dumping regulations 
at 40 CFR 227.13 and guidance developed by EPA and the Corps. In 
general, dredged material which meets the criteria under 40 CFR 
227.13(b) is deemed environmentally acceptable for ocean dumping 
without further testing. Dredged material which does not meet the 
criteria of 40 CFR 227.13(b) must be further tested as required by 40 
CFR 227.13(c).
    Disposal of suitable material meeting the regulatory criteria and 
deemed environmentally acceptable for ocean dumping will be allowed at 
the proposed Sites. Most of the dredged material (approximately 97%) to 
be disposed of at the Sites is expected to be sandy material, while a 
small amount of material (up to 3% of the material) would be classified 
as fine-grained. Occasionally, naturally occurring debris may be 
present in the dredged material. Hopper dredges, which are used for the 
Corps' annual navigational dredging, are not capable of removing debris 
from the dredge site. However, specific projects may utilize a 
clamshell dredge, in which case there is the potential for the 
occasional placement of naturally occurring debris at the disposal 
Sites.
    Sediment movement in the littoral zone consists of two mechanisms 
depending upon the size of the sediment. Material that is finer than 
sand size is carried in suspension in the water and moves offshore 
relatively quickly. Sediments sand size or coarser may be occasionally 
suspended by wave action near the bottom, and are moved by bottom 
currents or directly as bedload. Tidal, wind and wave forces contribute 
to generating bottom currents, which act in relation to the sediment 
grain size and water depth to transport sediment.
    (3) 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)).
    To ensure site managers can be responsive to the specifics of each 
dredging season based on dredge schedules and recorded seasonal 
sediment transport patterns north and south along the Oregon coast, EPA 
proposes to designate two Sites which nearly double the footprints of 
former Section 103 sites B and C. The larger Site footprints are needed 
to include nearshore areas where material can disperse into the active 
littoral zone, limit wave effects due to mounding, and keep material 
from reentering the navigation channel. Use of the shallower portion of 
the North Site will facilitate increased sediment transport thereby 
increasing long-term site capacity. Preferential utilization of the 
shallow portions of the North Site also meets the management goal of 
keeping material in the littoral system. However, as seen in the 1977 
Interim Site, mounding could occur if too much material is placed too 
quickly in shallow water. The designation of multiple sites with deeper 
areas within the sites, allows site managers to be responsive to annual 
and long-term sediment transport patterns. Effective monitoring of the 
Sites is necessary and required. EPA will require annual bathymetric 
surveys for each Site to monitor each Site for site capacity and 
potential mounding concerns. These surveys will inform the active 
management of the proposed Sites.
    (4) 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)).
    Locations off the continental shelf in the Pacific Ocean are 
generally inhabited by stable benthic and pelagic ecosystems on steeper 
gradients that are not well adapted to the type of frequent disturbance 
events that are typical of dredged material disposal in ocean waters. 
The proposed Sites will incorporate historic disposal locations within 
the footprint of each Site and will not be located off the continental 
shelf. Disposal off the continental shelf would remove natural 
sediments from the nearshore littoral transport system, a system that 
functions with largely non-renewable quantities of sand in Oregon. Some 
of the material disposed at the proposed Sites is expected to be 
available to the littoral system. The loss of the present volumes of 
Siuslaw River dredged material if disposed off of the continental shelf 
would be unlikely to result in disruption of the mass balance of the 
existing littoral system but keeping this material in the littoral 
system with the potential to sustain a dynamic equilibrium along the 
Oregon coast is considered a benefit.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).

[[Page 5712]]

    EPA does not anticipate that the geographical position, including 
the depth, bottom topography and distance from the coastline in the 
vicinity of the proposed Sites will cause adverse effects to the marine 
environment. As EPA understands the currents at the proposed Sites and 
the influence of those currents on the movement of material in the 
area, there is a high likelihood that some of the material disposed at 
the Sites, especially within the shallower portion of the North site, 
will be transported to the littoral sediment circulation system.
    To help avoid adverse mounding at the Sites, site management may 
include establishing ``cells'' along the nearshore portions of each 
Site and assigning numbers of ``dumps'' to each cell to minimize 
material accumulation and avoid excessive or persistent mounding. 
Disposal may also alternate as necessary between the two Sites to allow 
for maximum dispersal of material and minimal impact to each Site.
    (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 Sites are not located in exclusive breeding, spawning, 
nursery, feeding or passage areas for adult or juvenile phases of 
living resources. Near the Sites, a variety of pelagic and demersal 
fish species, including salmon, as well as shellfish, are found. The 
benthic fauna at the sites is common to nearshore, sandy, wave-
influenced regions of the Pacific Coast in Oregon and Washington.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The Sites, although located in close proximity to the Siuslaw River 
navigation channel, and near the northern boundary of the Oregon Dunes 
National Recreation Area, are located a sufficient distance offshore to 
avoid adverse impacts to beaches and other amenity areas. Two public 
recreation areas located to the north of the Siuslaw River, Heceta 
Beach Park and Harbor Vista Park, are not expected to be impacted by 
the designation of the Sites. Transportation of dredges or barges to 
and from the Sites to dispose of dredged material will be coordinated 
to avoid disturbance of other activities near the Siuslaw River 
entrance channel. There are no rocks or pinnacles in the vicinity of 
either Site. The Sites are sized and located to provide long-term 
capacity for the disposal of dredged material without causing any 
impacts to the wave environment at, or near, the Sites. Site monitoring 
and adaptive management are components of the proposed SMMP.
    (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 ocean disposal pursuant to the 
regulatory criteria for dredged material or characterized by chemical 
and biological testing and found suitable for disposal into ocean 
waters will be the only material allowed to be disposed of at the 
Sites. No material defined as ``waste'' under the MPRSA will be allowed 
to be disposed of at the Sites. The dredged material to be disposed of 
at the Sites will be predominantly marine sand, far removed from known 
sources of contamination. Generally, disposal is expected to occur from 
a hopper dredge, in which case, material will be released just below 
the surface and the disposal vessel will be required to be under power 
and to slowly transit the disposal location during disposal. This 
method of release is expected to spread material at the Sites to 
minimize mounding and to minimize impacts to the benthic community and 
to species at the Sites at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    EPA expects monitoring and surveillance at the Sites to be feasible 
and readily performed from small surface research vessels. The Sites 
are accessible for bathymetric and side-scan sonar surveys. At a 
minimum, annual bathymetric surveys will be conducted at each of the 
Sites to confirm that no unacceptable mounding is taking place within 
the Sites or in their immediate vicinity.
    (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 Sites indicate that the 
marine sands and fluvial gravels from the Siuslaw River distribute away 
from the river mouth rapidly. The beaches do not show significant 
accretion or loss. The bottom current records suggest a bias in 
transport to the north. Fine grained material tends to remain in 
suspension and to experience rapid offshore transport compared to other 
sediment sizes. Sediment transport of sand-sized or coarser material 
tends to move directly as bedload, but is occasionally suspended by 
wave action near the seafloor. The proposed Sites are not expected to 
change these characteristics.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    Portions of the two proposed Sites have been historically used for 
disposal activity. Disposal of dredged material is not expected to 
result in unacceptable environmental degradation at the Sites or in the 
vicinity of the Sites, however mounding will be closely monitored in 
those previously used portions and preferential use of the shallower 
portions of the North Site is expected. The proposed SMMP includes 
monitoring and adaptive management measures to address potential 
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)).
    The proposed Sites are not expected to interfere with shipping, 
fishing, recreation or other legitimate uses of the ocean. Disposals at 
the Sites will be managed according to the SMMP to minimize 
interference with other legitimate uses of the ocean through careful 
timing and staggering of disposals in the Sites. Commercial and 
recreational fishing and commercial navigation are the primary concerns 
for which such timing will be needed. EPA is not aware of any plans for 
mineral extraction offshore of the Siuslaw River at this time. EPA 
would expect to revise the SMMP if necessary in the event wave energy 
projects or other renewable or traditional energy projects were 
proposed and potential conflicts seemed likely. 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 Sites.
    (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 potential adverse water quality impacts 
from the proposed ocean disposal of dredged material at the Sites based 
on water and sediment quality analyses conducted in the study area of 
the Sites and based on experience with past disposals near the mouth of 
the Siuslaw River. Fisheries and benthic data show the ecology of the 
area to be that of a mobile sand community typical of the Oregon Coast.
    (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

[[Page 5713]]

observed at, or in the vicinity of, the Sites. Material expected to be 
disposed at the Sites will be uncontaminated marine sands similar to 
the sediment present at the Sites. 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 
Sites, no such recruitment is known to have taken place in the former 
Interim Site A or in the 103-selected sites B and C. The proposed SMMP 
includes biological monitoring requirements, which will act to identify 
any nuisance species and allow EPA to direct special studies and/or 
operational changes to address the issue if it arises.
    (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)).
    No significant cultural features have been identified at, or in the 
vicinity of, the proposed Sites at this time. EPA is coordinating with 
Oregon's State Historic Preservation Officer and with Tribes in the 
vicinity of the Sites to identify any cultural features. EPA expects to 
complete that coordination effort before making a final decision on the 
proposed Sites. No shipwrecks have been observed or documented within 
the proposed Sites or their immediate vicinity.

3. Environmental Statutory Review--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)

a. NEPA

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to 
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. 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 primary voluntary NEPA document 
for designating the Sites is the draft Siuslaw River, Oregon Ocean 
Dredged Material Disposal Sites Evaluation Study and Environmental 
Assessment, December 2009 (EA), jointly prepared by EPA and the Corps. 
The draft EA and its Technical Appendices, which are part of the docket 
for this action, provide the threshold environmental review for 
designation of the two Sites. The information from the proposed EA is 
used extensively, above, in the discussion of the ocean dumping 
criteria.

b. MSA and MMPA

    EPA prepared an essential fish habitat (EFH) assessment pursuant to 
Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act, as 
amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted that assessment 
to the National Marine Fisheries Service in July, 2009. NMFS is 
reviewing EPA's EFH assessment and an Endangered Species Act (ESA) 
Biological Assessment and addendum thereto for purposes of the Marine 
Mammal Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 
1389. EPA will not take final action on the proposed Sites until the 
NMFS review is complete.

c. CZMA

    The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 
to 1465, requires Federal agencies to determine whether their actions 
will be consistent with the enforceable policies of approved state 
programs. EPA prepared a consistency determination for the Oregon Ocean 
and Coastal Management Program (OCMP), the approved state program in 
Oregon, to meet the requirements of the CZMA and submitted that 
determination to the Oregon Department of Land Conservation and 
Development (DLCD) for review on January 19, 2010. EPA will not take 
final action on the proposed Sites until the DLCD review of EPA's 
consistency determination is complete.

d. ESA

    The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 
1544, requires Federal agencies to consult with NMFS and the U.S. Fish 
and Wildlife Service (USFWS) to ensure that any action authorized, 
funded, or carried out by the Federal agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of any critical habitat. EPA prepared a Biological Assessment (BA) to 
assess the potential effects of designating the two Siuslaw River Sites 
on aquatic and wildlife species and submitted that BA to the NMFS and 
USFWS in July, 2009. Subsequent to preparation of the BA, EPA prepared 
an addendum to the BA, which was submitted in December, 2009. 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 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 Sites and an accumulation of material 
on the ocean floor when material was disposed at the Sites. 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. EPA will not take final action on the proposed Sites 
until consultation under the ESA is complete.

e. NHPA

    EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) on November 24, 2009, to address the 
National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 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 designation of the Sites. EPA did not find any 
historic properties within the geographic area of the Sites. 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 Sites. EPA will not take 
final action on the proposed Sites until the coordination with the SHPO 
is complete.

4. Statutory and Executive Order Reviews

    This rule proposes the designation of two ocean dredged material 
disposal sites pursuant to Section 102 of the MPRSA. This proposed 
action complies with applicable executive orders and statutory 
provisions as follows:

[[Page 5714]]

a. Executive Order 12866

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the Executive Order. We 
welcome comments on the assessment of this EO.

b. 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 rule does not establish or modify any 
information or recordkeeping requirements for the regulated community.

c. 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 this 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 determined that this proposed 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 
sites to be used for the disposal of dredged material in ocean waters. 
After considering the economic impacts of this proposed rule, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

d. Unfunded Mandates Reform Act

    This proposed 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 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.

e. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It does 
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. Thus, Executive Order 13132 does 
not apply to this action. 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 action from State and local officials.

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 because the designation of the two 
ocean dredged material disposal Sites 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 action. Although Executive Order 13175 
does not apply to this proposed action EPA consulted with tribal 
officials in the development of this action, particularly as the action 
relates to potential impacts to historic or cultural resources. EPA 
specifically solicits additional comment on this proposed action from 
tribal officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885) 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 proposed 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 two ocean dredged material 
disposal Sites and only has the effect of providing designated 
locations to use for ocean disposal of dredged material pursuant to 
Section 102(c) of the MPRSA. We welcome comments on this proposed 
action related to this Executive Order.

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

    This proposed action is not subject to Executive Order 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355) because it is not a 
``significant regulatory action'' as defined under Executive Order 
12866. We welcome comments on this proposed action related to this 
Executive Order.

i. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272), 
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. This proposed action 
includes environmental monitoring and measurement as described in EPA's 
proposed SMMP. EPA will not require the use of specific, prescribed 
analytic methods for monitoring and managing the designated Sites. 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 proposed 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 proposed action.

[[Page 5715]]

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

    Executive Order 12898 (59 FR 7629) 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 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 disposal Sites against the criteria established pursuant to the 
MPRSA to ensure that any adverse impact to the environment will be 
mitigated to the greatest extent practicable. We welcome comments on 
this proposed action related to this Executive Order.

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: January 25, 2010.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    For the reasons set out in the preamble, EPA proposes to amend 
chapter I, title 40 of the Code of Federal Register as follows:

PART 228--[AMENDED]

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

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

    2. Section 228.15 is amended by adding paragraph (n)(14) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (14) Siuslaw River, OR--North and South Dredged Material Disposal 
Sites.
    (i) North Siuslaw River Site.

(A) Location: 44[deg]01'31.03'' N, 124[deg]10'12.92'' W
    44[deg]01'49.39'' N, 124[deg]10'02.85'' W
    44[deg]01'31.97'' N, 124[deg]09'01.86'' W
    44[deg]01'13.45'' N, 124[deg]09'11.41'' W

    (B) Size: Approximately 1.5 kilometers long and 0.6 kilometers 
wide.
    (C) Depth: Ranges from approximately 9 to 35 meters.
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing Use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 227.13 
from the Siuslaw 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.
    (ii) South Siuslaw River Site.

(A) Location: 44[deg]00'46.72'' N, 124[deg]10'26.55'' W
    44[deg]01'06.41'' N, 124[deg]10'24.45'' W
    44[deg]01'04.12'' N, 124[deg]09'43.52'' W
    44[deg]00'44.45'' N, 124[deg]09'45.63'' W

    (B) Size: Approximately 0.9 kilometers long and 0.6 kilometers 
wide.
    (C) Depth: Ranges from approximately 24 to 38 meters.
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing Use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 
227.13, from the Siuslaw 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.
* * * * *
[FR Doc. 2010-2395 Filed 2-3-10; 8:45 am]
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