[Federal Register Volume 75, Number 71 (Wednesday, April 14, 2010)]
[Proposed Rules]
[Pages 19311-19318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8515]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-9136-9]


Ocean Dumping; Guam Ocean Dredged Material Disposal Site 
Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to designate the Guam Deep Ocean Disposal 
Site (G-DODS) as a permanent ocean dredged material disposal site 
(ODMDS) located offshore of Guam. Dredging is essential for maintaining 
safe navigation at port and naval facilities in Apra Harbor and other 
locations around Guam. Not all dredged materials are suitable for 
beneficial re-use (e.g., construction materials, landfill cover), and 
not all suitable materials can be re-used or stockpiled for future use 
given costs, logistical constraints, and capacity of existing land 
disposal or re-handling sites. Therefore, there is a need to designate 
a permanent ODMDS offshore of Guam. Disposal operations at the site 
will be limited to a maximum of 1 million cubic yards (764,555 cubic 
meters) per calendar year and must be conducted in accordance with the 
Site Management and Monitoring Plan. The proposed ODMDS will be 
monitored periodically to ensure that the site operates as expected.

DATES: Comments on this proposed rule must be received no later than 
May 14, 2010.

FOR FURTHER INFORMATION CONTACT: Mr. Allan Ota, Dredging and Sediment 
Management Team, U.S. Environmental Protection Agency, Region IX (WTR-
8), 75 Hawthorne Street, San Francisco, CA 94105, telephone (415) 972-
3476 or FAX: (415) 947-3537 or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: The supporting document for this site 
designation is the Final Environmental Impact Statement for the 
Designation of an Ocean Dredged Material Disposal Site Offshore of 
Guam. This document is available for public inspection at the following 
locations:
    1. Guam EPA's Main Office, 17-3304 Mariner Avenue, Tiyan, Guam 
96913.
    2. Nieves M. Flores Memorial Public Library, 254 Martyr Street, 
Hagatna, Guam 96910.
    3. Barrigada Public Library, 177 San Roque Drive, Barrigada, Guam 
96913.
    4. Dededo Public Library, 283 West Santa Barbara Avenue, Dededo, 
Guam 96929.
    5. Maria R. Aguigui Memorial Library (Agat Public Library), 376 
Cruz Avenue, Guam 96915.
    6. Rosa Aguigui Reyes Memorial Library (Merizo Public Library), 376 
Cruz Avenue, Merizo, Guam 96915.
    7. Yona Public Library, 265 Sister Mary Eucharita Drive, Yona, Guam 
96915.
    8. EPA Region IX, Library, 75 Hawthorne Street, 13th Floor, San 
Francisco, California 94105.
    9. EPA Public Information Reference Unit, Room 2904, 401 M Street, 
SW., Washington, DC 20460.
    10. EPA Web site: http://www.epa.gov/region9/.
    11. U.S. Army Corps of Engineers' (USACE) Web site: http://www.poh.usace.army.mil.

A. Potentially Affected Entities

    Entities potentially affected by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material in ocean waters at the G-DODS, under the Marine Protection 
Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Rule would be 
primarily of relevance to parties of the island of Guam seeking permits 
from the USACE to transport dredged material for the purpose of 
disposal into ocean waters at the G-DODS, as well as the USACE itself 
(when proposing to dispose of dredged material at the G-DODS). 
Potentially affected categories and entities seeking to use the G-DODS 
and thus subject to this Rule include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        affected entities
------------------------------------------------------------------------
Industry and General Public............   Ports.
                                          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.
Federal government.....................   USACE Civil Works and
                                          O & M projects.
                                          Other Federal
                                          agencies, including the
                                          Department of Defense.
------------------------------------------------------------------------


[[Page 19312]]

    This table lists the types of entities that EPA is now aware 
potentially could be affected. EPA notes, however, that nothing in this 
Rule alters in any way, the jurisdiction of EPA, or the types of 
entities regulated under the Marine Protection Research and Sanctuaries 
Act. To determine if you or your organization may be potentially 
affected by this action, you should carefully consider whether you 
expect to propose ocean disposal of dredged material, in accordance 
with the Purpose and Scope provisions of 40 CFR 220.1, and if you wish 
to use the G-DODS. If you have questions regarding the applicability of 
this action to a particular entity, consult the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. Background

    Ocean disposal of dredged materials is regulated under Title I of 
the Marine Protection, Research and Sanctuaries Act (MPRSA; 33 U.S.C. 
1401 et seq.). The EPA and the USACE share responsibility for the 
management of ocean disposal of dredged material. Under Section 102 of 
MPRSA, EPA has the responsibility for designating an acceptable 
location for the ODMDS. With concurrence from EPA, the USACE issues 
permits under MPRSA Section 103 for ocean disposal of dredged material 
deemed suitable according to EPA criteria in MPRSA Section 102 and EPA 
regulations in Title 40 of the Code of Federal Regulations Part 227 (40 
CFR 227).
    It is EPA's policy to publish an EIS for all ODMDS designations 
(Federal Register, Volume 63, Page 58045 [63 FR 58045], October 1998). 
A site designation EIS is a formal evaluation of alternative sites 
which examines the potential environmental impacts associated with 
disposal of dredged material at various locations. The EIS must first 
demonstrate the need for the ODMDS designation action (40 CFR 6.203(a) 
and 40 CFR 1502.13) by describing available or potential aquatic and 
non-aquatic (i.e., land-based) alternatives and the consequences of not 
designating a site--the No Action Alternative. Once the need for an 
ocean disposal site is established, potential sites are screened for 
feasibility through the Zone of Siting Feasibility (ZSF) process. 
Potential alternative sites are then evaluated using EPA's ocean 
disposal criteria at 40 CFR Part 228 and compared in the EIS. Of the 
sites which satisfy these criteria, the site which best complies with 
them is selected as the preferred alternative for formal designation 
through rulemaking published in the Federal Register (FR).
    Formal designation of an ODMDS in the Federal Register does not 
constitute approval of dredged material for ocean disposal. Designation 
of an ODMDS provides an ocean disposal alternative for consideration in 
the review of each proposed dredging project. Before any ocean disposal 
may take place, dredging projects must demonstrate a need for ocean 
disposal. Alternatives to ocean disposal, including the option for 
beneficial re-use of dredged material, will be evaluated for each 
dredging project. Ocean disposal is only allowed when EPA and USACE 
determine that the proposed activity is environmentally acceptable 
according to the criteria at 40 CFR Part 227. Decisions to allow ocean 
disposal are made on a case-by-case basis through the MPRSA Section 103 
permitting process, resulting in a USACE permit or its equivalent 
process for USACE's Civil Works projects. Material proposed for 
disposal at a designated ODMDS must conform to EPA's permitting 
criteria for acceptable quality (40 CFR Parts 225 and 227), as 
determined from physical, chemical, and bioassay/bioaccumulation tests 
as prescribed by national sediment testing protocols (EPA and USACE 
1991). Only clean non-toxic dredged material is acceptable for ocean 
disposal. The proposed ODMDS will be monitored periodically to ensure 
that the site operates as expected. This proposed site designation has 
been prepared pursuant to Section 102 of the Marine Protection, 
Research and Sanctuaries Act (MPRSA). This ocean disposal site 
designation is based on EPA's general and specific criteria as 
evaluated in the March 2010 ``Final Environmental Impact Statement for 
Designation of an Ocean Dredged Material Disposal Site Offshore of 
Guam'' (Final EIS).
    Historically, dredged material generated around Guam by the Navy 
and the Port Authority of Guam (PAG) has either been placed in upland 
dewatering/disposal sites or beneficially used. These are currently the 
only management options for dredged material. The anticipated volume of 
dredged material generated around Guam over the next 30 years would 
exceed the capacity of known or existing stockpile or beneficial use 
options. The need for additional dredged material disposal options is 
exacerbated by the planned increase in military presence on Guam, which 
would include extensive Navy and PAG harbor and navigation 
improvements. Assuming all existing upland dewatering facilities are 
used and all known beneficial use options are fully implemented, there 
would still be a substantial excess of dredged material to be managed. 
An ODMDS provides an important management option for dredged material 
that is suitable and non-toxic, but for which other management options 
are not practical. The purpose of this action is to ensure that 
adequate, environmentally-acceptable ocean disposal site capacity, in 
conjunction with other management options including upland disposal and 
beneficial reuse, is available for suitable dredged material generated 
from Apra Harbor and other locations on and around Guam.
    EPA and USACE encourage the use of dredged material for beach 
replenishment in areas degraded by erosion. The grain size distribution 
of dredged material must be compatible with the receiving beach, and 
biological and water quality impacts must be considered prior to 
permitting of beach disposal. EPA and USACE evaluate the selection of 
appropriate disposal methods on a case-by-case basis for each permit. 
Additionally, opportunities arise periodically to use dredged material 
for marine landfilling projects, also referred to as the creation of 
``fastlands.'' When the need arises, the use of dredged material for 
the creation of fastlands is considered a viable alternative to ocean 
disposal. Other potential beneficial uses for dredged material include 
construction fill, use as cap material in aquatic remediation projects, 
wetland creation, habitat restoration, landfill daily cover, and 
recycling into commercial products such as construction aggregate, 
ceramic tiles, or other building materials. Potentially practicable 
management options are evaluated as part of the permitting process for 
individual dredging projects.
    EPA has determined that the Northwest Alternative identified in the 
Final EIS is the environmentally preferred site, and this action 
proposes to designate the G-DODS as an ocean dredged material disposal 
site, located approximately 11 nautical miles (21 kilometers) west of 
Apra Harbor. The circular seafloor boundary of the permanently 
designated G-DODS would be centered at 13[deg]35.500' North latitude by 
144[deg]28.733' West longitude (North American Datum from 1983), with a 
diameter of 3 nautical miles (5.6 kilometers). However, all dredged 
material must be discharged within a smaller 3,280 foot (1,000 meter) 
diameter Surface Disposal Zone (SDZ) at the center of the overall site. 
The depth of the center of the site is 8,790 feet (2,680 meters). The 
action provides for adequate, environmentally-acceptable ocean disposal 
site capacity for suitable

[[Page 19313]]

dredged material generated from dredging projects in Apra Harbor and 
other areas in and around Guam by formally designating the G-DODS.

C. Disposal Volume Limit

    The action is formal designation of the G-DODS managed at a maximum 
annual dredged material disposal quantity of 1 million cubic yards 
(764,555 cubic meters) for the ocean disposal of dredged material from 
Apra Harbor and other areas in and around Guam. The need for ongoing 
ocean disposal capacity is based on historical dredging volumes from 
the local port districts, marinas and harbors, and Federal navigational 
channels, as well as estimates of future average annual dredging.

D. Site Management and Monitoring Plan

    Verification that significant impacts do not occur outside of the 
disposal site boundaries will be demonstrated through implementation of 
the Site Management and Monitoring Plan (SMMP) developed as part of the 
action and included with the Final EIS. The main purpose of the SMMP is 
to provide a structured framework to ensure that dredged material 
disposal activities will not unreasonably degrade or endanger human 
health, welfare, the marine environment, or economic potentialities 
(Section 103(a) of the MPRSA). Three main objectives for management of 
the G-DODS are: (1) Protection of the marine environment; (2) 
beneficial use of dredged material whenever practical; and (3) 
documentation of disposal activities at the ODMDS.
    The EPA and USACE Honolulu District personnel will achieve these 
objectives by jointly administering the following activities: (1) 
Regulation and administration of ocean disposal permits; (2) 
development and maintenance of a site monitoring program; (3) 
evaluation of permit compliance and monitoring results; and (4) 
maintenance of dredged material testing and site monitoring records to 
insure compliance with annual disposal volume targets and to facilitate 
future revisions to the SMMP.
    The SMMP includes periodic physical monitoring to confirm that 
disposal material is deposited within the seafloor disposal boundary, 
as well as chemical monitoring to confirm that the sediment actually 
disposed at the site is in fact suitable (is consistent with the pre-
disposal testing results). Other activities implemented through the 
SMMP to achieve these objectives include: (1) Regulating quantities and 
types of material to be disposed, including the time, rates, and 
methods of disposal; and (2) recommending changes to site use 
requirements, including disposal amounts or timing, based on periodic 
evaluation of site monitoring results.

E. Ocean Dumping Site Designation Criteria

    Five general criteria and 11 specific site selection criteria are 
used in the selection and approval of ocean disposal sites for 
continued use (40 CFR 228.5 and 40 CFR 228.6(a)).

General Selection Criteria

    1. The dumping of materials into the ocean will be permitted only 
at sites or in areas selected to minimize the interference of disposal 
activities with other activities in the marine environment, 
particularly avoiding areas of existing fisheries or shellfisheries, 
and regions of heavy commercial or recreational navigation.
    The ZSF specifically screened the marine environment to avoid areas 
of existing fisheries or shellfisheries, and regions of heavy 
commercial or recreational navigation. The alternatives evaluated in 
the Final EIS each avoid such areas to the maximum extent practicable.
    2. Locations and boundaries of disposal sites will be so chosen 
that temporary perturbations in water quality or other environmental 
conditions during initial mixing caused by disposal operations anywhere 
within the site can be expected to be reduced to normal ambient 
seawater levels or to undetectable contaminant concentrations or 
effects before reaching any beach, shoreline, marine sanctuary, or 
known geographically limited fishery or shellfishery.
    Both alternative site boundaries are located sufficiently from 
shore (minimum 11 nautical miles [21 kilometers]) and from 
geographically limited fishing areas or other sensitive fishery 
resources to allow water quality perturbations caused by dispersion of 
disposal material to be reduced to ambient conditions before reaching 
environmentally sensitive areas.
    3. If at any time during or after disposal site evaluation studies, 
it is determined that existing disposal sites presently approved on an 
interim basis for ocean dumping do not meet the criteria for site 
selection set forth in Sections 228.5 through 228.6, the use of such 
sites will be terminated as soon as suitable alternate disposal sites 
can be designated.
    The interim ODMDS established for Guam does not meet current EPA 
criteria. It was never used and the designation was terminated.
    4. The sizes of the ocean disposal sites will be limited in order 
to localize for identification and control any immediate adverse 
impacts and permit the implementation of effective monitoring and 
surveillance programs to prevent adverse long-range impacts. The size, 
configuration, and location of any disposal site will be determined as 
a part of the disposal site evaluation or designation study.
    The size and shape of the G-DODS is the minimum necessary to limit 
environmental impacts to the surrounding area and facilitate 
surveillance and monitoring operations, determined by computer modeling 
as described in the Final EIS. In addition, all dredged material 
discharge must take place within a smaller 3,280 foot (1,000 meter) 
diameter Surface Disposal Zone (SDZ) at the center of the overall site.
    5. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.
    The island of Guam is volcanic and not part of a continental land 
mass and does not have a continental shelf. In the absence of a shelf 
break, continental shelf can be defined as submerged land between 
shoreline and depth of 656 ft (200 m). On Guam, this typically occurs 
within 1 nautical mile (1.9 kilometers) of shore. The slope tends to 
increase rapidly offshore of Guam and depths can reach 6,000 ft (1.829 
km) within 3 nm (5.6 km) (Weston Solutions and Belt Collins 2006). The 
center point of G-DODS is well beyond the continental shelf, 11 
nautical miles (21 kilometers) from the shoreline. No ocean dumping 
sites have been used for Guam dredging projects.

Specific Selection Criteria

    1. Geographical position, depth of water, bottom topography, and 
distance from the coast.
    Centered at 13[deg]35.500' N and 144[deg]28.733' E and 11.1 nm 
(20.6 km) from Apra Harbor. The bottom topography at the site is 
essentially flat and the depth at the center of the site is 8,790 ft 
(2,680 m).
    2. Location in relation to breeding, spawning, nursery, feeding, or 
passage areas of living resources in adult or juvenile phases.
    Due to the marine open water locale of this site, the presence of 
aerial, pelagic, or benthic living resources is likely within these 
areas. However, the site location, water depth and sparse biological 
communities would minimize any potential impacts to pelagic and benthic 
resources.

[[Page 19314]]

    3. Location in relation to beaches and other amenity areas.
    The site is greater than 8.0 nm (14.8 km) from the jurisdictional 
3nm coastal zone boundary and unlikely to interfere with coastal 
amenities. This site is not visible from shore. No adverse impacts from 
dredged material disposal operations are expected on these amenity 
areas.
    4. Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packaging the waste, 
if any.
    Only suitable dredged material may be disposed at the site--no 
dumping of toxic materials or industrial or municipal waste would be 
allowed. Dredged material proposed for ocean disposal is subject to 
strict testing requirements established by the EPA and USACE, and only 
clean (non-toxic) dredged materials are allowed to be disposed at the 
G-DODS. Most dredged material to be disposed will likely be fine-
grained material (clays and silts) originating from the Inner Apra 
Harbor area, and coarser-grained material (sands and gravels) 
originating from the Outer Apra Harbor area. Maximum annual dredged 
material volumes would be set at 1,000,000 cy (764,555 m\3\). Dredged 
material is expected to be released from split hull barges.
    5. Feasibility of surveillance and monitoring.
    EPA (and USACE for Federal projects in consultation with EPA) is 
responsible for site and compliance monitoring. USCG is responsible for 
vessel traffic-related monitoring. Monitoring of the disposal site is 
feasible and facilitated through use of a satellite-based remote 
tracking system as specified in the SMMP.
    6. Dispersal, horizontal transport, and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any.
    Oceanographic current velocities are greatest at the surface due to 
atmospheric circulation (e.g., wind-driven) events, while intermediate 
and bottom layer currents are much slower, driven by thermohaline 
circulation and influenced by tidal circulation. Computer modeling, 
taking into account all current depths and speeds, results in a 2.98 
mile diameter footprint of deposits greater than 1 cm.
    7. Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects).
    No evidence of previous dumping activities was observed during 
field reconnaissance and there are no designated discharge areas in the 
vicinity. No interactions with other discharges are anticipated due to 
the distances from existing discharge points located on the island of 
Guam.
    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.
    Minor short-term interferences with commercial and recreational 
boat traffic may occur due to the transport of dredged material along 
established shipping lanes to/from G-DODS. There are no oil or other 
mineral extraction platforms offshore of Guam. The site has not been 
identified as an area of special scientific importance. There are no 
fish/shellfish culture enterprises near the site, and transportation to 
the site avoids any fish aggregation devices (FADs). There may be 
recreational vessels passing through the site, but the area is not a 
recreational destination.
    9. Existing water quality and ecology of the site as determined by 
available data or by trend assessment or baseline surveys.
    Water quality is excellent with no evidence of degradation. 
Sediment quality is also typical of unaffected deep-ocean environments 
removed from pollutant sources. Baseline studies showed no significant 
benthic fish or shellfish resources in the area.
    10. Potentiality for the development or recruitment of nuisance 
species in the disposal site.
    The potential that any transported nuisance species would survive 
at the ODMDS is low due to depth and temperature differences between 
the deep ocean disposal site and the likely sources of dredged material 
in the harbors and other shallower areas in and around Guam.
    11. Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    No culturally significant natural or cultural features, including 
shipwrecks, were identified in the vicinity of the ODMDS.

F. Responses to Comments

    The draft EIS was published in the Federal Register on August 7, 
2009. A 45-day public review and comment period was extended to 60 
days. Comments were received from 10 individuals, organizations, and 
agencies during the public review and comment period. In addition to 
the comments received, a public meeting was held on August 20, 2009, to 
solicit comments from interested parties. The comments, and associated 
responses, are summarized topically below.
    Comments on the Draft EIS were received by letter, e-mail, and at 
meetings during the public review and comment period from various 
individuals, organizations, and agencies. Many of the comments focused 
on specific errors, missing information, or outdated information, and 
the Final EIS was revised and updated accordingly. Other substantive 
comments and associated responses are summarized topically below. 
Detailed responses to individual comments are presented in Appendix A 
of the Final EIS.

Modeling

    (1) Type of model used--STFATE model, a standard model used for 
dredged material dispersion and deposition modeling, has been validated 
by monitoring studies around the U.S., including at a deepwater site 
located offshore of San Francisco, California.
    (2) Dredged material dispersing or settling outside of proposed 
site boundaries, including potential impacts to areas beyond the site 
boundaries, such as seamounts--Site boundaries are set such that 
outside of these boundaries, plumes have already dispersed to 
background conditions and sediment deposits are indistinguishable from 
native sediments on the seafloor. No significant effects are expected 
outside site boundaries, including to seamounts or other major 
features.

Site Selection

    (1) Placement of site should be in a deep area away from shallow 
areas containing corals--A Zone of Siting Feasibility Study (ZSF) was 
conducted to evaluate existing physical, geological, and biological 
features as well as military, commercial, and recreational uses of the 
marine environment offshore of Guam. This ZSF study eliminated those 
areas from consideration resulting in the study areas evaluated in the 
EIS, all of which are in deep water many miles from areas containing 
corals.
    (2) General site selection criteria for placement of the ocean 
disposal site beyond the continental shelf should not apply to Guam's 
tropical setting--The EIS evaluation noted the absence of continental 
shelf offshore of Guam and proposed alternative sites on abyssal plains 
away from submarine slopes, seamounts, or other unique features. While 
the temperate and tropical ecosystems are different in many aspects in 
the surface coastal waters, the physical oceanographic environments of 
the deep ocean are fairly consistent throughout the world, and EPA's 
site selection criteria remain valid for such areas.
    (3) Historic sites should be removed from consideration--The EIS 
evaluation

[[Page 19315]]

eliminated the nearshore interim site (which expired in 1997) from 
consideration.
    (4) Waters near the equator have been scientifically determined to 
meet these qualifications [location in relation to breeding, spawning, 
nursery, feeding or passage areas of living resources in adult or 
juvenile stage] and should be avoided--The EIS evaluation notes that 
due to the marine open water locale of this ocean disposal site, the 
presence of living organisms is likely within this very large region. 
However, any potential impacts to the overall pelagic and benthic 
communities would be minimized due to the site location (i.e., very 
small percentage of area occupied offshore in the region), water depth, 
absence of unique physical features or habitats, and sparse biological 
communities.
    (5) Location relative to other amenity areas should not be limited 
to local jurisdictional areas but be inclusive of all historic fishing 
areas and Fish Aggregation Device placement areas with the same buffer 
zone consideration given to coastal areas--The ZSF study did exclude 
the FAD areas from further consideration and modeling results indicate 
that potential impacts from disposal operations are not expected to 
reach those areas. Pelagic fishing can occur anywhere throughout this 
very large region, but impacts to pelagic fishing or fishery resources 
are not anticipated because disposal operations will affect a very 
small percentage of the area and discharge plumes will disperse to 
background conditions within the G-DODS boundary.

Beneficial Reuse of Dredged Material

    (1) Quality of sediments to be considered--Only suitable (non-
toxic) dredged material may be considered for ocean disposal. However, 
even sediments that are tested and determined to be suitable for ocean 
disposal must be evaluated for beneficial reuse opportunities such as 
beach nourishment, habitat restoration, or construction fill before 
ocean disposal will be permitted. Sediments that are not suitable for 
ocean disposal may still be considered for reuse in construction fill 
or landfill cover, etc.
    (2) Need for additional dewatering and stockpile sites--EPA 
encourages evaluation of creating additional capacity of this nature to 
increase opportunities for beneficial reuse. However there remains a 
need for an ocean disposal site to address situations when suitable 
dredged material cannot be reused because of timing or logistics 
issues.

Oceanography/Currents

    (1) One full year of oceanographic current meter data collection is 
not sufficient to characterize ocean current anomalies seen 
periodically, so sediment plumes created by surface discharges may 
occasionally impact resources (pelagic and reef species, including 
larvae) much farther away than indicated by the computer modeling--The 
potential effects of El Ni[ntilde]o and La Ni[ntilde]a conditions, in 
addition to local current patterns documented by the current meter 
study, were considered in the EIS evaluation by modeling ``worst case'' 
conditions including ``accelerated'' current speeds (up to an order of 
magnitude greater than actually observed in the current meter data 
records), various current directions, and current reversals in the 
surface layer (down to 300 meters). The result of this evaluation 
showed that surface layer dispersion would still be contained within 
the disposal site boundaries. It also showed that seafloor deposits 
would not be significantly different, because subsurface currents 
(which have the predominant effect on overall deposition) are not 
affected by even these severe surface current anomalies.
    (2) Ocean disposal site impacts to coral reef fish species which 
begin their life cycle as pelagic larvae, drifting with the currents 
and returning to the island in juvenile stage--Pelagic larvae of coral 
and coral reef fish that may be present far offshore in the vicinity of 
the ocean disposal site for the most part would not be expected to 
return to Guam since the prevailing easterly tradewind patterns would 
result in them drifting farther offshore. Therefore, offshore disposal 
operations are not expected to have any significant effect on nearshore 
recruitment of coral or coral reef fish.

Impacts to Corals

    (1) Disposal should be conducted outside of annual coral spawning 
period--This restriction has been included in the SMMP, and conditions 
on ocean disposal permits must reflect this SMMP requirement.
    (2) Degradation to water quality resulting from dredging project 
operations (i.e., turbidity, siltation, dredging/filling, debris, 
fueling of equipment)-On a project by project basis, best management 
practices (BMPs) as permit conditions will be implemented as 
appropriate to minimize impacts associated with dredging operations 
themselves, including use of silt curtains and other measures to 
minimize turbidity, avoiding transportation during coral spawning 
periods, implementing a debris management plan, and implementing other 
BMPs as needed. At an ocean disposal site, located at least 11 nautical 
miles from Guam, offshore disposal operations are not expected to 
affect corals located in Apra Harbor or along the coast of the island.

Impacts to Fishing

    (1) Site selection should consider avoidance of historic and 
current fishing areas, particularly in the vicinity of offshore 
seamounts such as Perez Bank and Spoon Bank--The EIS evaluation did 
consider the locations of prominent submarine features and avoided 
those locations in selecting the preferred alternative. Furthermore, 
modeling showed surface plumes dispersed to background conditions 
within the site boundaries, even using severe (``accelerated'') surface 
current speeds for worst case scenarios. No significant effects are 
expected to fishery resources, or to fishing activities, outside the 
disposal site boundaries.
    (2) The proposed alternative sites are located in areas of 
upwelling which attract large fish as a result of deepwater nutrients 
rising to the surface resulting in high plankton production--Extensive 
studies of seamounts suggest that Perez Bank and Spoon Bank are not 
shallow enough features (i.e., summits are not close enough to the sea 
surface) to create substantial upwelling to provide nutrient benefits 
to the photic zone above. Measured nutrients were typical of tropical 
ocean environments and not indicative of upwelling zones.
    (3) Use of bottom trawl to determine species composition does not 
address impacts to surface fishery--The EIS field studies were intended 
to fill in data gaps and to look for unknown or unexpected habitat 
types or species in the abyssal regions, about which much less is known 
relative to pelagic habitats where available information suggest that 
pelagic species are wide-ranging in the marine environment offshore of 
Guam.

Threatened and Endangered Species

    (1) The ocean disposal site should be limited in size for 
monitoring and surveillance but the limits should include an area up to 
five miles from the center--The five mile extent is not necessary 
because the modeling results suggest that surface plumes dissipate to 
background with the site boundaries (out to 1.5 nautical mile radius) 
and the deposit footprint on the seafloor is also contained with these 
boundaries. Disposal operations are expected to result in temporary 
localized impacts within the site boundaries and to not have 
significant adverse impacts on

[[Page 19316]]

pelagic species which are known to occupy a wide range of the marine 
environment offshore of Guam. Nevertheless, when site monitoring is 
conducted, adjacent areas outside the official site boundary will be 
included.
    (2) Published scientific reports document valuable marine life 
deserving of protection at depths along the coast down to 35,000 feet, 
the latter recognized by Presidential Proclamation--The EIS evaluation 
considered important resource areas to avoid for site selection, 
including the areas identified by the Presidential Proclamation that 
established the Marianas Trench Marine National Monument which is 
located several miles to the east of Guam and well out of the influence 
of ocean dredged material disposal activities west of Guam.

Sediment Testing

    (1) Dredged material testing is site specific and does not 
characterize any potential shipboard contamination--Project site 
sediments determined to be suitable (non-toxic) for ocean disposal are 
not expected to become contaminated in the dump scows during 
transportation to the ocean disposal site because the scows themselves 
do not contain machinery or other materials that can pollute the 
sediments in the bin of these vessels. Any disposal vessels that have 
handled contaminated material prior to ocean disposal operations should 
have their bins cleaned prior to taking on any clean dredged material.
    (2) The EPA should conduct an extensive series of tests and studies 
to determine if radiation exists in Apra Harbor waters or its sediments 
to independently confirm the Navy's claim that the amount of leakage 
from nuclear-powered vessels [submarines such as the USS Houston] is 
insignificant--The designation of an ODMDS does not pre-approve any 
dredging project sediments for ocean disposal. Each proposed project 
must subject its sediments to a battery of physical, chemical, and 
biological tests to determine suitability (non-toxicity) for ocean 
disposal. Because EPA's Ocean Dumping Regulations explicitly prohibit 
the disposal or discharge of ``high-level radioactive wastes * * * 
[and] materials produced or used for radiological * * * warfare'' at 
ocean disposal sites [40 CFR 227.5], EPA provided comments on the Joint 
Guam Program Office (JGPO) draft EIS for the Guam and CNMI military 
relocation recommending that Dept of Defense summarize past survey data 
for Apra Harbor. Based on that information, EPA would require 
radioactivity assessment as part of pre-dredging sediment sampling 
where appropriate. Any sediments with elevated radioactivity-proposed 
to be dredged from Apra Harbor must be managed separately at an 
appropriate upland location.

Mitigation

    Mitigation for unavoidable resource losses as a result of ocean 
disposal of sediments--Evaluation in the EIS indicates that there may 
be localized temporary physical impacts within the ocean disposal site 
boundaries, but benthic community recovery between disposal operations 
is expected to be rapid, and no long term adverse environmental impacts 
to the surrounding marine region offshore of Guam are expected. Due to 
extreme distance offshore and prevailing currents away from Guam, no 
adverse impacts are expected in Apra Harbor or on the coast.

Disposal Operations

    (1) Lack of monitoring for transport of dredged material from the 
dredging site to the ocean disposal site--The SMMP contains ocean 
disposal site use requirements that include automated satellite-based 
tracking of the transportation and disposal phases for each trip to 
document that no leaking or spilling of dredged material has occurred 
during transport and that proper placement occurs at the ocean disposal 
site (discharge only within the Surface Disposal Zone at the center of 
the overall site).
    (2) Observers should be present to authorize disposal operations 
after confirming the absence of seabirds, schooling fish, and marine 
mammals--The EIS evaluation determined that use of G-DODS would not be 
expected to result in long term adverse environmental impact to the 
wide-ranging species of seabirds, schooling fish, and marine mammals in 
the region offshore of Guam, therefore EPA has not included a 
requirement for independent on-board observers. Automated compliance 
monitoring would ensure that disposal operations are restricted to the 
transportation route to and from the ocean disposal site.
    (3) Compounded environmental impacts of repeated disposals per day 
if weather days restrict trips to the ocean disposal site to 
accommodate one million cubic yards per year--One million cubic yards 
represents the maximum disposal volume scenario, which is not expected 
to occur every year. No more than one scow would be allowed in the 
disposal site at a time, and turbidity impacts following disposal 
operations are expected to be localized and temporary (reduced to 
background in less than four hours).

Cultural/Environmental Justice

    (1) Documentation that indigenous populace of Guam has long 
utilized the resources within the waters surrounding Guam for over 3500 
years, hence the resource has historic significance and adverse impacts 
which may alter beneficial use should be [avoided]--The EIS evaluation 
shows that there are no historic resources in deepwater in the vicinity 
of G-DODS, and there would be no expected restrictions on historic 
uses. As such, there will be no expectation of significant or long term 
impacts requiring mitigation.
    (2) Designation of an ocean disposal site may result in an 
environmental injustice perpetrated against minority and low-income 
populations, in this case, the Chamorro people--The EIS evaluation does 
not indicate that designation of an offshore ocean disposal site more 
than 11 nautical miles offshore will result in any significant or long 
term impacts on island residents that would require mitigation.

Nuisance Species

    Presence of nuisance species in Apra Harbor has been documented, 
and while they are not expected to survive in the deep depths of the 
ODMDS, it may be possible for these invasive species to float or drift 
back to Guam or other islands areas, exacerbating the problem--
Prevailing currents to the west would prevent these organisms from 
drifting back to Apra Harbor or other locations on Guam, and 
significant dispersion over longer distance would make survival 
unlikely in sufficiently numbers before encountering another island or 
land mass to the west.

Vessel Safety and Economics

    Due to loss of fishing area as a result of designation of ODMDS, 
the fishing community may be forced to travel to other fishing areas 
where rescue or other services are not easily available; the change of 
fishing habits to unfamiliar may be considered a safety at sea issue as 
well as added expense to travel a greater distance to fish--The EIS 
evaluation concludes that the site designation does not restrict 
fishing in the area and the potential adverse impacts are not expected 
with regard to vessel safety and operational costs. The lack of impact 
is expected because the frequency of dredged material transport vessels 
encountering fishing vessels at the site or along the transit route 
from Apra Harbor will be much lower than

[[Page 19317]]

frequency of encounter with other commercial and recreational vessels, 
due to the much larger numbers of the latter group.

NEPA/Consultation

    (1) Effects of mammals were not fully addressed, (2) consultation 
with Western Pacific Regional Fishery Management Council (WPRFMC), and 
(3) Essential Fish Habitat--The WPRFMC is not a formal consultation 
agency under NEPA. The required consultations were completed with NOAA 
and US FWS with regard to seabirds, marine mammals, threatened and 
endangered species, fisheries, and essential fish habitat. These 
agencies provided recommendations on additional information for EPA's 
assessment, contained in the draft EIS, to clarify the basis for 
overall conclusion of no significant impacts resulting from designation 
of an ODMDS in the marine region offshore of Guam. Additional 
information and revisions were incorporated into the final EIS in 
accordance with these recommendations. No significant resource issues 
were raised by these agencies.

G. Regulatory Requirements

1. Consistency With the Coastal Zone Management Act

    Consistent with the Coastal Zone Management Act (CZMA), EPA 
prepared a Coastal Zone Consistency Determination (CZCD) document based 
on information presented in the site designation DEIS. The CZCD 
evaluated whether the action--permanent designation of G-DODS would be 
consistent with the provisions of the CZMA. The CZCD was formally 
submitted to the Bureau of Statistics and Planning (BSP, Guam's CZM 
agency) on July 24, 2009. The BSP staff concurred with EPA's CZCD. The 
Proposed Rule is consistent with the CZMA.

2. Endangered Species Act Consultation

    During development of the site designation EIS, EPA consulted with 
the National Oceanic and Atmospheric Administration (NOAA) Fisheries 
and the U.S. Fish and Wildlife Service (FWS) pursuant to the provisions 
of the Endangered Species Act (ESA), regarding the potential for 
designation and use of the ocean disposal sites to jeopardize the 
continued existence of any Federally listed species. This consultation 
process is fully documented in the site designation EIS. NOAA and FWS 
concluded that proposed designation and use of the disposal site for 
disposal of dredged material meeting the criteria for ocean disposal 
would not jeopardize the continued existence of any Federally listed 
species.

H. Administrative Review

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'', and 
therefore subject to Office of Management and Budget (OMB) review and 
other requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to lead to a 
rule that may:
    (a) 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;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This Proposed Rule should have minimal impact on State, local or 
Tribal governments or communities. Consequently, EPA has determined 
that this Proposed Rule is not a ``significant regulatory action'' 
under the terms of Executive Order 12866.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and record-keeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by OMB. Since the Proposed 
Rule would not establish or modify any information or record-keeping 
requirements, but only clarifies existing requirements, it is not 
subject to the provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) provides that whenever an 
agency promulgates a final rule under 5 U.S.C. 553, the agency must 
prepare a regulatory flexibility analysis (RFA) unless the head of the 
agency certifies that the final rule will not have a significant 
economic impact on a substantial number of small entities (5 U.S.C. 604 
and 605). The site designation and management actions would only have 
the effect of setting maximum annual disposal volume and providing a 
continuing disposal option for dredged material. Consequently, EPA's 
action will not impose any additional economic burden on small 
entities. For this reason, the Regional Administrator certifies, 
pursuant to section 605(b) of the RFA, that the Proposed Rule will not 
have a significant economic impact on a substantial number of small 
entities.

4. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
year.
    This Proposed Rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
Tribal governments or the private sector. The Proposed Rule would only 
provide a continuing disposal option for dredged material. 
Consequently, it imposes no new enforceable duty on any State, local or 
Tribal governments or the private sector. Similarly, EPA has also 
determined that this Rule contains no regulatory requirements that 
might significantly or uniquely affect small government entities. Thus, 
the requirements of section 203 of the UMRA do not apply to this 
Proposed Rule.

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

[[Page 19318]]

between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''
    This Proposed 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 the various levels of government, 
as specified in Executive Order 13132. The Proposed Rule would only 
have the effect of setting maximum annual disposal volumes and 
providing a continuing disposal option for dredged material. Thus, 
Executive Order 13132 does not apply to this Proposed Rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This Proposed Rule does not 
have Tribal implications, as specified in Executive Order 13175. The 
Proposed Rule would only have the effect of setting maximum annual 
disposal volumes and providing a continuing disposal option for dredged 
material. Thus, Executive Order 13175 does not apply to this Proposed 
Rule.

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

    This Executive Order (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This Proposed Rule is not 
subject to the Executive Order because it is not economically 
significant as defined in Executive Order 12866, and because EPA does 
not have reason to believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use Compliance With Administrative Procedure 
Act

    This Proposed Rule 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 under Executive Order 12866. The 
Proposed Rule would only have the effect of setting maximum annual 
disposal volumes and providing a continuing disposal option for dredged 
material. Thus, EPA concluded that this Proposed Rule is not likely to 
have any adverse energy effects.

9. National Technology Transfer 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 note) 
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 standards 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 
Rule does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

10. 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.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: April 6, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.

    In consideration of the foregoing, EPA is proposing to amend part 
228, chapter I of title 40 of the Code of Federal Regulations 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 (l)(12) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (l) * * *
    (12) Guam Deep Ocean Disposal Site (G-DODS)--Region IX.
    (i) Location: Center coordinates of the circle-shaped site are: 
13[deg] 35.500' North Latitude by 144[deg] 28.733' West Longitude 
(North American Datum from 1983), with a radius of 3 nautical miles 
(5.6 kilometers).
    (ii) Size: 7.1 square nautical miles (24.3 square kilometers).
    (iii) Depth: 8,790 feet (2,680 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to a maximum of 1 
million cubic yards (764,555 cubic meters) per calendar year of dredged 
materials that comply with EPA's Ocean Dumping Regulations; disposal 
operations shall be conducted in accordance with requirements specified 
in a Site Management and Monitoring Plan developed by EPA and USACE, to 
be reviewed periodically, at least every 10 years.
* * * * *
[FR Doc. 2010-8515 Filed 4-13-10; 8:45 am]
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