[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Rules and Regulations]
[Pages 54497-54508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22324]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-9197-6]


Ocean Dumping; Guam Ocean Dredged Material Disposal Site 
Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is designating 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. Beneficial re-use of dredged material (e.g., for 
habitat creation, construction material, or landfill cover) is 
preferred over ocean disposal. However, not all dredged materials are 
suitable for beneficial re-use, 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 and any project-specific permit conditions. The 
designated ODMDS will be monitored periodically to ensure that the site 
operates as expected.

DATES: Effective October 8, 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.

[[Page 54498]]

    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/water/dredging/index.html.

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 Final 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
                    Category                       potentially 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.
------------------------------------------------------------------------

    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 part 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).
    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. To date these have been 
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. Assuming all existing upland dewatering facilities are 
used and all known beneficial use options are fully implemented, there 
would still be an excess of dredged material to be managed. This need 
for additional dredged material disposal capacity would be exacerbated 
by the separately-proposed increase in military presence on Guam, which 
could include extensive Navy and PAG navigation improvements. 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.
    Formal designation of an ODMDS does not constitute approval of 
dredged material for ocean disposal. Instead, 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. For every project, the 
permitting process includes evaluating the need for ocean disposal and 
suitability of the proposed dredged material. Even when alternatives, 
including beneficial reuse, are not practicable, dredged 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. Only clean non-

[[Page 54499]]

toxic dredged material as determined under national sediment testing 
protocols (EPA and USACE 1991) is acceptable for ocean disposal. This 
ocean disposal site designation has been prepared pursuant to Section 
102 of the Marine Protection, Research and Sanctuaries Act (MPRSA) and 
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).

C. Disposal Site Location

    EPA has determined that the Northwest Alternative identified in the 
Final EIS is the environmentally preferred site, and this action 
designates 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 G-DODS is centered at 13[deg] 
35.500[min] North latitude by 144[deg] 28.733[min] East 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 
Area (SDA) at the center of the overall site. The depth of the center 
of the site is 8,790 feet (2,680 meters).

D. Disposal Volume Limit

    G-DODS is designated for a maximum annual dredged material disposal 
quantity of 1 million cubic yards (764,555 cubic meters) of suitable 
dredged material from Apra Harbor and other areas in and around Guam. 
This maximum volume, evaluated in the Final EIS, 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. However, EPA expects disposal volumes to be 
much less than the maximum in most years.

E. 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 SMMP will be 
reviewed periodically in combination with review of site monitoring 
data, and the SMMP may be updated as necessary.
    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 generally 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.

F. Ocean Disposal 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 Area (SDA) 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

[[Page 54500]]

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 disposal 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[min] N. and 144[deg] 28.733[min] 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.
    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. Corals, boulders, and 
other larger sized materials are not allowed to be disposed at the G-
DODS. 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 disposal 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 and 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.

G. Responses to Comments

    EPA received concurrences or lack of objection responses to the 
ocean disposal site designation Final EIS and Proposed Rule from 
several Federal and Guam agencies, including: U.S. Department of the 
Interior; National Park Service; U.S. Fish and Wildlife Service 
(USFWS); National Marine Fisheries Service (NMFS); U.S. Army Corps of 
Engineers (USACE); Guam Bureau of Statistics and Plans; and Guam EPA. 
Those comments require no response.
    EPA also received 14 comment letters or e-mails on the Final EIS 
and Proposed Rule from 8 other entities and individuals. Taken 
together, these letters and e-mails generated approximately 90 
individual comments. Many of these comments were similar to each other, 
and we have grouped them into 12 categories for purposes of responding 
to them here.
    The first three categories of comments below relate to issues 
independent of this ocean disposal site designation action, and are 
only briefly addressed. The remaining comment categories are relevant 
to the scope of this action, and therefore are responded to here.

1. Concerns About Military Buildup on Guam

    Several comments expressed concerns about effects of the proposed 
military buildup on Guam, including Environmental Justice issues, lack 
of trust of the military or other Federal regulatory agencies including 
EPA, and ideas for alternative expansion plans

[[Page 54501]]

that could reduce buildup-related dredging.
    At the time of this ocean disposal site designation action, a 
separate EIS addressing the proposed military buildup on Guam was also 
in circulation. Although this ocean disposal site designation action 
takes into account potential ocean disposal needs of the possible 
military buildup, the two processes are independent. Guam has had no 
ocean disposal option available since 1997. EPA determined that there 
is a long-term need for an ocean disposal site whether or not the 
military buildup occurs, based on the need to support the Naval and 
commercial port facilities that currently exist. Effects of the 
proposed military buildup itself are outside the scope of this action, 
and such comments are not further addressed here.

2. Concerns About the Impacts of Dredging

    Several comments were received concerning the direct impacts of 
dredging activities, as separate from ocean disposal. In particular, 
comments about dredging itself were related to: potential impacts to 
coral and other sensitive species and habitats, including cumulative 
impacts; the need for Best Management Practices (BMPs) to minimize 
direct impacts; and the need to mitigate for impacts of dredging.
    The potential effects of each proposed dredging project will vary, 
and appropriate BMPs or other permit conditions must be determined on a 
case-by-case basis. Coral reef and other resource losses due to 
dredging, as well as measures to mitigate for such losses, are also 
evaluated during the USACE permitting process for individual projects. 
The designation of an ocean disposal site is a separate action from any 
decisions to permit or to not permit individual dredging projects. 
Since dredging-related effects are outside the scope of this ocean 
disposal site designation action, such comments are not further 
addressed here.

3. Concerns About Minimizing Ocean Disposal by Maximizing Beneficial 
Reuse

    One comment expressed concern that dredged material which could be 
reused should not be considered for ocean disposal simply because the 
timing of the dredging project does not match that of the reuse 
project.
    Disposal or reuse alternatives that could practicably meet the 
purpose and need of a dredging project must be evaluated at the time of 
project-specific permitting. Timing and logistics can affect the 
practicability of dredged material disposal or reuse alternatives. One 
option is to stockpile dredged material that is suitable for later 
reuse, and EPA has encouraged creation or coordinated management of 
stockpile capacity on Guam for just this purpose. For an individual 
project, ocean disposal is permitted only when other alternatives are 
not practicable. However, determining the availability of alternatives 
for individual projects is independent of this ocean disposal site 
designation action, and such comments are not further addressed here.
    One comment expressed concern that dredged material found to be 
unsuitable for ocean disposal should also be considered unsuitable for 
any reuse on Guam, and should instead be removed from the island.
    Suitability requirements for ocean disposal of dredged material are 
both strict, and specific to the contaminant exposure pathways at the 
ocean disposal site. Dredged material found unsuitable for ocean 
disposal may often be appropriate for placement or reuse in other 
environments where exposure pathways are different, provided that those 
pathways can be controlled and managed to avoid significant impacts. 
Specifically, dredged material that is not suitable for ocean disposal 
can often appropriately be included in otherwise approved projects 
where the material will be isolated from resources of concern; for 
example, in engineered fills, or as landfill daily cover. The need for 
any particular contaminant control or containment measures would be 
determined on a case-by-case basis. However, determining the 
appropriate disposal requirements for individual projects with ocean-
unsuitable material is independent of this ocean disposal site 
designation action, and such comments are not further addressed here.

4. Adequacy of the Final EIS

    Several comments focused on perceived inadequacies in the Final EIS 
evaluations that they viewed as so significant that a complete re-write 
and re-circulation of the EIS was needed.
    Perceived inadequacies regarding different individual topics are 
addressed below. In each case, EPA disagrees that the Final EIS 
evaluations are inadequate for NEPA or MPRSA disposal site designation 
purposes, and has determined that there is no need to re-write and re-
circulate the EIS.

5. Preference for Other Locations

    Some comments questioned the distance constraints used in the Final 
EIS, and recommended that disposal sites be prohibited within 30 
nautical miles of western Guam and 15 nautical miles around seamounts.
    The disposal site designation process included a Zone of Siting 
Feasibility (ZSF) evaluation that identified constraints on where a 
multi-user disposal site could be considered, including the economic 
transport distance (see Final EIS Section 2.2.1-2.2.4). The economic 
transport distance takes into account not just major potential 
construction projects such as may be proposed by the U.S. Navy or the 
Port Authority of Guam, but also other potential projects such as 
maintenance dredging of marinas outside of Apra Harbor where smaller 
commercial and recreational vessels are berthed. In order to 
accommodate such smaller maintenance dredging projects, the ZSF 
identified 18 nautical miles (nm) as the economically feasible 
transport distance. Within this radius, sites were identified and 
evaluated in detail in the Final EIS. Based on that evaluation, EPA 
determined that significant impacts would not occur at either 
alternative site. Since there would be no significant impacts 
(including to seamounts and related resources) at these sites within 
the economic haul distance, there is no need to prohibit disposal site 
designation there or to select a different (arbitrary) distance within 
which to consider other possible locations.

6. Preference for the No Action Alternative

    Some comments expressed preference for the No Action Alternative 
(that an ocean disposal site not be designated at either of the 
alternative locations evaluated in the Final EIS).
    Guam has had no ocean disposal option available since 1997. EPA 
determined that there is a need for an ocean disposal site to provide 
an additional option for the management of suitable material dredged 
from Guam and surrounding waters. This is based on the long-term need 
to support the Naval and commercial port facilities that currently 
exist, independent of potential military and port expansion proposals 
(see Final EIS Section 1.3). The No Action Alternative would not meet 
the purpose and need for this action. Furthermore, the evaluation 
contained in the Final EIS and reflected in this rulemaking action 
determined that designation and use of the disposal site in compliance 
with the SMMP would not result in significant adverse direct or 
cumulative effects.

7. Computer Modeling

    One comment expressed concern that the Final EIS evaluations were 
based on

[[Page 54502]]

the same kinds of computer models that erroneously demonstrated the 
safety of oil drilling in the Gulf of Mexico and hull integrity of the 
Exxon-Valdez oil tanker. Modeling should not just include the ocean 
floor, but also the water column and the possibility of a catastrophic 
accident.
    Using established and verified computer models, the Final EIS 
specifically evaluated suspended sediment plumes in the water column 
and sediment deposition on the seafloor associated with dredged 
material disposal (see Final EIS Section 4.1.3-4.1.4). (Oil has 
different buoyancy properties than dredged material, and different 
models would be used to evaluate oil spills.) Dredged material modeling 
considered the maximum volume disposal scenario developed from the ZSF 
process, and included both increased current speeds and reversed 
current directions to simulate the most severe El Ni[ntilde]o and La 
Ni[ntilde]a conditions expected (see Final EIS Section 3.1.2, 4.1.3-
4.1.4). However, these models are not designed, and were not used, to 
consider other issues such as the possibility of accidents. Vessel-
related accidents are always a risk during open ocean operations. The 
Site Management and Monitoring Plan (SMMP, included as Final EIS 
Appendix C) mitigates the potential for accidents during disposal 
operations by allowing operations only when weather and sea-state 
conditions are conducive with safe navigation, by requiring that 
transportation to the disposal site must be via the established vessel 
traffic lanes, and by requiring that only one disposal vessel at a time 
is allowed to be within the disposal area. Furthermore, vessel 
movements in the most congested area entering and exiting Apra Harbor 
are highly regulated. Vessels must contact Port Authority vessel 
control, and if a vessel movement is to or from Naval areas the vessel 
must also contact Navy vessel control. In general only one vessel is 
allowed to transit the entrance channel at a time.
    Some comments stated the concern that the disposal modeling was 
based on inadequate collection of oceanographic data for the area.
    EPA generally requires that a full year of continuous oceanographic 
conditions (current speed and direction at different depths, etc.) be 
collected in the vicinity of proposed ocean disposal sites, in order to 
capture the range of seasonal variability that occurs. This information 
is then used as direct input to the plume dispersion and seafloor 
deposition computer modeling. In this case, data were collected 
continuously throughout 2008 from two separate current meter arrays 
offshore of Guam in the vicinity of the proposed disposal site. It is 
recognized that the waters surrounding the island of Guam are subject 
to periodic El Ni[ntilde]o and La Ni[ntilde]a conditions, as well as 
typhoons, that can substantially affect current speed and direction 
(primarily in the surface water layer, down to a few hundred meters in 
depth.) Therefore the data collected in 2008 does not necessarily 
represent the full range of conditions that may occur in the area. For 
this reason, the Final EIS included additional modeling using both 
significantly accelerated current speeds and reversal in surface 
current direction to simulate the most severe El Ni[ntilde]o and La 
Ni[ntilde]a conditions expected (see Final EIS Section 4.1.3-4.1.4). 
(Typhoon conditions were not specifically modeled, because disposal 
operations are prohibited in weather conditions and sea states that are 
unsafe for navigation or that would risk spilling dredged material 
during transit.) The Final EIS evaluation concluded that even under 
severe El Ni[ntilde]o or La Ni[ntilde]a conditions, and even under the 
highly unlikely presumption that such extreme surface current 
conditions were to persist throughout the entire year, suspended 
sediment plumes would still dissipate to background concentrations 
within the disposal site boundary. It also showed that seafloor 
deposits would not be significantly different. This is largely due to 
the fact that the slow, deep subsurface currents (which have the 
predominant effect on overall deposition) are not affected by even 
severe surface current anomalies.

8. Environmental Effects of Disposal

    Some comments expressed the belief that plumes of suspended 
sediments in the surface waters would be more persistent than described 
in the Final EIS, especially if the maximum one million cubic yards 
were really disposed in a one-year period.
    As discussed in the Final EIS, computer modeling indicated that 
surface water plumes from individual disposal events will dissipate to 
background concentrations within 4 hours of disposal and within the 
boundary of the disposal site (see Final EIS Section 4.1.3). Although 
the Final EIS discussed an average of 1 disposal event per day under 
the maximum volume scenario of one million cubic yards in one year, it 
is conceivable that during occasional periods of heavy site use more 
than one disposal event may occur in a day. In such cases, a new 
disposal event could occur before the suspended sediment plume from the 
previous disposal event has fully dissipated. However these individual 
plumes, under the influence of surface currents and gravity, would each 
still be expected to dissipate to background levels within the disposal 
site boundary even under extreme current conditions. (This conclusion 
is consistent with experience at other open ocean disposal sites, 
including direct monitoring of plume dispersion following disposal 
operations.)
    Some comments stated a concern that adverse impacts may occur 
outside the disposal site (i.e. to the marine ecosystem, to recruitment 
of organisms back to Guam, and to fishing opportunities around Guam 
more broadly) because planktonic organisms including coral larvae, and 
larval or juvenile reef and pelagic fishes, as well as bait fish that 
attract larger pelagic fish, may be present at the disposal site and be 
affected by disposal operations.
    The Final EIS acknowledged that planktonic larvae, including coral 
larvae as well as larvae and juveniles of both pelagic and reef fishes, 
can be found throughout the 200-mile Exclusive Economic Zone (EEZ) 
surrounding Guam (see Final EIS Section 3.2.3). However, the Final EIS 
concluded that water column properties are relatively uniform 
throughout the offshore region including around the disposal site (see 
Final EIS Sections 3.1.2-3.1.4). In the absence of persistent unique 
oceanographic or habitat characteristics, the overall distribution of 
planktonic and larval organisms (as well as bait fish feeding on them 
and larger pelagic fish attracted by bait fish) would be expected to be 
similar throughout the offshore waters west of Guam. Since the disposal 
site represents a very small proportion of those offshore waters (less 
than one percent of the area within the 18 nm ZSF economic feasibility 
distance, and still less of the area within the approximately 30 nm 
radius reported as being regularly utilized by fishers), no significant 
adverse effects are expected. In addition, planktonic larvae of coral 
and of reef fish that drift offshore to the ocean disposal site 
generally would not return to Guam to survive since the prevailing 
tradewind patterns and surface currents would continue to carry them 
even farther offshore most of the time (see Final EIS Sections 3.1.2 
and 4.1.2). Finally, we are including a provision in the SMMP to 
prohibit disposal operations during the peak coral spawning period (an 
approximate six week period occurring between June and August each 
year), thus avoiding the time when larvae of these species would be 
most concentrated. For these reasons, offshore disposal operations are 
not expected to have any significant

[[Page 54503]]

effect on recruitment of coral or coral reef fish on Guam, or to the 
broader ecosystem or fishery resources utilized by fishers.
    Some comments noted that reef fishes will sometimes cross deep 
ocean areas (for example between islands, reefs or seamounts) and may 
be affected by disposal.
    Although reef fishes may cross deep areas, there are no appropriate 
island, reef, or seamount habitats in the direction of or in the 
vicinity of the disposal site for reef fish originating from nearshore 
areas around Guam. The peak of the Perez Bank seamount, west of the 
disposal site, is approximately 800 m deep at its shallowest (see Final 
EIS Section 3.1.5) and would not provide suitable habitat for reef fish 
species. Individual reef fishes transiting through the deep waters west 
of Guam would be as likely to be found anywhere offshore as within the 
disposal site, which represents a very small proportion (less than one 
percent) of such waters. Therefore, the potential impact of dredged 
material disposal operations is expected to be insignificant.
    One comment stated that invasive or non-native species in dredged 
material might drift back to Guam.
    Prevailing trade wind patterns and surface currents at the disposal 
site would generally carry any small organisms present in the suspended 
sediment plume even farther offshore most of the time (see Final EIS 
Sections 3.1.2 and 4.1.2). Larger organisms present would descend with 
the mass of dredged material to the seafloor. The seafloor at the 
disposal site is very deep (over 8,000 feet), and (as evidenced by 
sediment characteristics and deep water current speeds--see Final EIS 
Sections 3.1.2 and 3.1.4) is in a depositional environment where the 
sediment would not become resuspended or migrate toward shore. Future 
disposed sediments would tend to cover previously placed material over 
time. In addition, only non-native species already brought to Guam by 
other mechanisms--i.e., in vessel ballast water--would be present, so 
disposal operations would not introduce new species. For these reasons 
ocean disposal of dredged material from Guam would not be expected to 
increase either the presence or the spread of non-native species.
    Some comments expressed concern that consultations with NMFS 
(regarding endangered species, and regarding Essential Fish Habitat) 
were inadequate because coordination should also have occurred directly 
with the Western Pacific Regional Fishery Management Council (WPRFMC).
    The required consultations were completed with NMFS and USFWS with 
regard to seabirds, marine mammals, threatened and endangered species, 
fisheries, and essential fish habitat. These agencies provided 
recommendations at the draft EIS stage, which were incorporated into 
the Final EIS. No significant resource issues were raised by these 
agencies over the Final EIS or Proposed Rule.
    Some comments stated the Final EIS evaluation included insufficient 
information on the ranges and/or timing of important marine species--
including sea turtles, and spinner and bottlenose dolphins--and failed 
to evaluate potential impacts of disposal operations on them.
    EPA acknowledges that there is limited information for a number of 
species. Nevertheless, the Final EIS reflects the current scientific 
knowledge and reports applicable to the region, including the 2007 
Mariana Islands Sea Turtle and Cetacean Survey. The Final EIS 
acknowledged that spinner and bottlenose dolphins, as well as several 
species of sea turtles, are expected to occur regularly throughout the 
region (see Final EIS Section 3.2.5). However, the Final EIS concluded 
that water column properties are relatively uniform throughout the 
offshore region including around the disposal site (see Final EIS 
Sections 3.1.2-3.1.4). In the absence of persistent unique 
oceanographic or habitat characteristics, the overall distribution of 
marine mammals and sea turtles (as well as their pelagic prey 
organisms) would be expected to be similar throughout the offshore 
waters west of Guam. Furthermore, the disposal plume in the water 
column will be temporary following individual disposal events, and will 
dissipate to background levels within the disposal site boundary even 
assuming the maximum disposal volume scenario and severe El Ni[ntilde]o 
or La Ni[ntilde]a conditions (see Final EIS Section 4.1.3). Since the 
disposal site represents a very small proportion (less than one 
percent) of the offshore waters, and since disposal effects will be 
limited and temporary even within the disposal site, the potential 
impact of dredged material disposal operations on marine mammals and 
sea turtles is expected to be insignificant.
    One comment expressed concern that experience and knowledge of 
conditions in the deep ocean environment elsewhere are not necessarily 
representative of the tropical deep ocean environment off Guam.
    Although temperate and tropical ecosystems are different in many 
aspects in the surface and coastal waters, the physical oceanographic 
conditions of the deep ocean are fairly consistent throughout the 
world. Nevertheless, the Final EIS evaluation did not rely exclusively 
on knowledge of deep ocean environmental conditions elsewhere. 
Extensive site-specific oceanographic and biological baseline studies 
were conducted for the Final EIS (see Final EIS Sections 3.1.2-3.1.6 
and 3.2.2-3.2.3), focusing on critical information gaps. The resulting 
data greatly added to the available information about conditions 
offshore of western Guam, and allowed an adequate assessment of the 
potential impacts of ocean disposal activities. EPA's published site 
selection criteria, and relevant monitoring experience at other deep 
ocean disposal sites, remain valid for the deep waters offshore of 
Guam.
    One comment expressed concern that noise and disturbance caused by 
vessels has not been studied.
    The ocean disposal site is located outside of, but immediately 
adjacent to established vessel traffic lanes. Vessels transporting 
dredged material to the disposal site must remain within the traffic 
lanes at all times during their approach to the site. The amount of 
disposal-related vessel traffic will be small in comparison to existing 
commercial vessel traffic in the area (see Final EIS Section 3.3.4), 
even without considering Naval vessel traffic. The Final EIS concluded 
that even at the worst-case annual disposal volume (an average of 1 
disposal trip per day), only minor navigation-related cumulative 
impacts to fishing or other vessels would result (see Final EIS Section 
4.4.3). Disposal volumes, and therefore disposal-related vessel 
traffic, are expected to be much less than this most of the time, and 
in most years. For these reasons EPA believes that ocean disposal site 
designation will not cause significant adverse impacts as a result of 
vessel disturbance or noise.

9. Socioeconomic, Cultural, or Environmental Justice Issues

    Several comments criticized the Final EIS for not properly 
recognizing the character of the local fishery, noting that the 
majority of fishers participate in the troll fishery for pelagic 
species within 20-30 miles of the coastline along Guam's western 
seaboard where conditions are more consistently safe for fishing. A 
disposal site in these waters could therefore have larger effects on 
the fishing community than noted in the Final EIS.

[[Page 54504]]

    The Final EIS acknowledged that the pelagic troll fishery is 
significant, and takes place throughout the waters offshore of Guam as 
anglers pursue several highly mobile species (see Final EIS Section 
3.2.3). However, the fishery is not concentrated around the disposal 
site (see Final EIS Sections 3.2.3 and 4.3) and this ocean disposal 
site designation action does not further prohibit or limit fishing, 
even in or immediately around the disposal site. The Final EIS 
concluded that water column properties are relatively uniform 
throughout the offshore region including around the disposal site (see 
Final EIS Sections 3.1.2-3.1.4). In the absence of persistent unique 
oceanographic or habitat characteristics in the vicinity, the overall 
distribution of planktonic and larval organisms, as well as bait fish 
feeding on them and larger pelagic fish attracted by bait fish, would 
be expected to be similar throughout the offshore waters west of Guam. 
Furthermore, suspended sediment plumes from disposal events are 
expected to quickly dissipate to background levels within the disposal 
site (see Final EIS Section 4.1.3). Following dissipation pelagic 
fishes or their prey would not necessarily avoid the area, and disposal 
operations are not expected to be so continuous or heavy that mobile 
fish species or their prey would avoid the area permanently. Since the 
disposal site represents a very small proportion of the offshore waters 
west of Guam (less than one percent of the area within the 18 nm ZSF 
economic feasibility distance, and still less of the area within the 
approximately 30 nm radius reported to be regularly utilized by 
anglers), and since disposal effects will be limited and temporary even 
within the disposal site, significant direct or cumulative impacts to 
the ocean ecosystem, including to pelagic fish species targeted by 
anglers, are not expected.
    Several comments expressed concern that fishing would be prohibited 
around the disposal site and that, together with previous losses of 
pelagic fishing areas to military operations and the Mariana Trench 
Marine National Monument, any further losses would be unacceptable. A 
related concern was that the ``From the Reef to the Deep Blue Sea'' 
program, which promotes conservation of coral reef fish species by 
providing the island community with alternative and more abundant 
pelagic fish, would be impacted by any decline in pelagic fish or 
restriction of traditional offshore fishing areas.
    EPA recognizes that fishing in some areas has become more 
difficult, or even off limits, as a result of other actions on and 
around Guam not related to this site designation. However this ocean 
disposal site designation action does not further prohibit or limit 
fishing, even in or immediately around the disposal site. In addition, 
since the Final EIS evaluation determined that no significant effect is 
expected to pelagic fish or the fishery targeting them, there should be 
no impact to Guam's ``From the Reef to the Deep Blue Sea'' program.
    One comment noted that the Final EIS understated the economic value 
of the commercial fishery, and requested that EPA fund a baseline study 
of direct and indirect economic activity generated by fisheries on 
Guam, in order to assess economic impacts due to loss of fishing 
opportunities.
    The Final EIS acknowledged that it is often difficult to 
distinguish between commercial, recreational, and other fishing 
activities conducted around Guam (see Final EIS Section 3.3.1). The 
direct value of strictly commercial fishery landings does not take into 
account the related economic benefit to supporting businesses. Nor does 
it reflect direct or indirect economic activity generated by non-
commercial fishing, let alone cultural values associated with fishing 
on Guam. However, this ocean disposal site designation action does not 
further prohibit or limit fishing, even in or immediately around the 
disposal site. In addition, as discussed above, the Final EIS 
evaluation determined that no significant environmental effects are 
expected to pelagic fish or the fishery targeting them. For these 
reasons, EPA disagrees that there is a need to further quantify the 
direct and indirect economic activity generated by fishing on Guam.
    Several comments expressed concern that the Final EIS downplayed 
the cultural importance of fishing and the supply of fresh fish 
(including for religious purposes). In particular, the loss of fishing 
opportunity would have a negative cultural impact on Guam.
    The Final EIS acknowledged that fish, and fishing, are important 
cultural aspects of life for many residents of Guam (see Final EIS 
Section 3.3.1). However, as discussed above the fishery is not 
concentrated around the disposal site (see Final EIS Sections 3.2.3 and 
4.3) and this ocean disposal site designation action does not further 
prohibit or limit fishing, even in or immediately around the disposal 
site. The Final EIS concluded that water column properties are 
relatively uniform throughout the offshore region including around the 
disposal site (see Final EIS Sections 3.1.2-3.1.4). In the absence of 
unique oceanographic or habitat characteristics in the vicinity, the 
overall distribution of planktonic and larval organisms, as well as 
bait fish feeding on them and larger pelagic fish attracted by bait 
fish (and targeted by fishers), would be expected to be similar 
throughout the offshore waters west of Guam. Furthermore, suspended 
sediment plumes from disposal events are expected to quickly dissipate 
to background levels within the disposal site (see Final EIS Section 
4.1.3). Following dissipation pelagic fishes or their prey would not 
necessarily avoid the area, and disposal operations are not expected to 
be so continuous or heavy that mobile fish species or their prey would 
avoid the area permanently. Since the disposal site represents a very 
small proportion (less than one percent) of the offshore waters and 
disposal effects will be limited and temporary even within the disposal 
site, significant direct or cumulative impacts to the ocean ecosystem, 
including to pelagic fish species targeted by fishers, are not 
expected. The Final EIS also noted that cumulatively there would be 
only minor potential for navigation-related impacts to fishing or other 
vessels, even during periods of maximum disposal activity (see Final 
EIS Section 4.4.3). Therefore EPA does not believe that designation of 
the ocean disposal site will have any significant effect on fishing, 
fishes themselves, or associated cultural aspects of life on Guam.
    One comment argued that even though the economic impact threshold 
in Executive Order 12866 would not be exceeded, effects on the small 
island community of Guam would still be significant.
    EPA recognizes that economic impacts far below the $100 million 
threshold in Executive Order 12866 could be ``significant'' to a small 
island community such as Guam's. However, the EIS process concluded 
that there would be no significant effects on Guam including to ``the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or Tribal 
governments or communities'', because significant environmental effects 
are not expected and because the action does not prohibit or further 
limit fishing.
    One comment stated that the site designation violates Executive 
Order 13132 on Federalism because it represents yet another Federal 
action imposed on Guam without local consent.
    This action does not have federalism implications and does not 
violate Executive Order 13132. It does not have a direct effect on the 
government of Guam, on the relationship between the

[[Page 54505]]

national government and the government of Guam, or on the distribution 
of power and responsibilities among the various levels of government. 
The designated site is over 11 nautical miles offshore, outside of the 
jurisdiction of Guam agencies. Furthermore, EPA consulted directly with 
the Guam Bureau of Statistics and Plans and received their concurrence 
that the action is consistent with Guam's Coastal Management Program. 
Since this action only has the effect of providing an additional option 
for managing dredged material and setting a maximum annual ocean 
disposal volume limit, Executive Order 13132 does not apply.

10. Sediment Testing Issues

    Some comments expressed concern about possible radiation releases 
in the past and the reliability of the Navy to report any releases in 
the future. They believed that EPA statements about radiation testing 
have been inconsistent, and recommended that EPA be clear about 
requiring that sediment core samples (rather than surface grab samples) 
be analyzed for radiation prior to approval of dredging and disposal 
operations.
    For every dredging project area tested, sediments will be 
representatively sampled down to the proposed dredging depth (design 
depth) plus overdepth (which is typically 2 feet below the project's 
design depth), using coring equipment (not just surface grab samples), 
and tested in accordance with the EPA/USACE national Ocean Testing 
Manual. However, in response to these comments, sediment samples 
collected from dredging areas in Apra Harbor will be subjected to 
radiation analyses in addition to the other standard physical, 
chemical, and biological analyses.
    One comment requested that dredged material sampling plans, testing 
results, and site monitoring information be made accessible to the 
public (without a FOIA request).
    Proposed Sampling and Analysis Plans (SAPs) for dredging projects 
that include ocean disposal must be provided to EPA, USACE and 
appropriate Guam regulatory agencies for review and approval prior to 
testing. In addition, EPA intends to make publicly available (via the 
EPA Region 9 Web site) SAPs and subsequent results reports for dredging 
projects that include ocean disposal, as well as site monitoring 
results, once such reports are finalized.

11. Site Management and Monitoring Plan (SMMP) Issues

    One commenter was concerned that the language in Section 5.1.1 of 
the SMMP, which stated a number of permit requirements ``may include 
the following * * *'', implied important provisions might sometimes not 
be required in permits.
    EPA will revise this SMMP language to read: ``shall include, but 
not be limited to, the following * * *''
    One comment recommended that any disposal scow that has handled 
contaminated dredged material be required to be cleaned before loading 
clean material for discharge at the ocean disposal site.
    EPA will add a requirement to this effect to the SMMP.
    Some comments recommended that all dredging activities be 
prohibited at certain times, including during the peak coral spawning 
period, during seasonal appearance of harvested fish species, and west 
to east wind shifts.
    Dredging operations on projects that include ocean disposal will 
not be allowed during the peak coral spawning period. (EPA generally 
agrees that any dredging in proximity to coral should not occur during 
this timeframe if at all possible; however, EPA does not have 
independent authority to require stoppage of dredging work on projects 
that do not include ocean disposal.) Different fish species are 
harvested at different times of the year, and there is no period during 
which disposal operations would avoid them all. However, based on the 
Final EIS conclusion that significant effects would not occur to these 
species, EPA has determined that no seasonal restriction on use of the 
disposal site is necessary. The Final EIS evaluations determined that 
disposal plumes would dissipate to background levels within the 
disposal site boundaries, even during current reversals and significant 
increases in surface current speed. Therefore EPA determined that 
timing restrictions to avoid wind and surface current shifts from west 
to east are also not needed.
    One comment recommended that large pieces of coral debris, and 
especially live coral, be prohibited from ocean disposal.
    EPA agrees that live coral should be salvaged for transplantation. 
Therefore we are adding a provision to the SMMP requiring mechanical 
dredging operations in areas that include live coral, coral rubble, 
rocks, or other large debris to utilize a metal grate (known as a 
grizzly) with no greater than 12-inch openings, through which the 
dredged material is passed as it is placed in disposal barges. Material 
retained on the grizzly must be removed and managed elsewhere; it may 
not be taken to the ocean disposal site.
    One comment stated that in light of the lack of trust by the local 
community, the entire dredging and disposal process needs to be 
monitored by independent observers.
    As stated in the Proposed Rule, the Final EIS evaluation determined 
that use of the disposal site would not be expected to result in long-
term adverse environmental impact to the wide-ranging species of 
seabirds, pelagic fish, sea turtles or marine mammals in the region 
offshore of Guam. Therefore EPA has not included a requirement in the 
SMMP for independent on-board observers. However, the SMMP requires 
automated satellite and sensor-based monitoring of all transportation 
and disposal operations. In addition, the SMMP requires that scows must 
be inspected prior to each disposal trip, and certified as being in 
compliance with other SMMP specifications.
    One comment recommended that disposal scow tracking capability be 
``real time'' so that a disposal scow found to be losing material could 
be recalled prior to disposal.
    Real time monitoring for leaks is not considered essential for 
long-term management of ocean disposal operations. First, personnel are 
not necessarily available to review tracking data for every trip in 
real time. More importantly, even if a leaking scow were to be 
identified while during transit, it would generally be environmentally 
preferable to allow the scow to complete that trip to the ocean 
disposal site rather than to return and release additional material in 
closer proximity to corals and other sensitive habitats. Also, in some 
conditions there can be vessel safety concerns involved in aborting a 
trip and turning around a loaded scow in the open ocean. Instead, the 
continuous tracking system required by EPA documents whether a 
substantial leak or spill has occurred during a trip, and transmits 
that data at the end of each trip. Disposal operations may not proceed 
if the required tracking system is not operational. If a leak or spill 
was detected, an e-mail alert is sent to all appropriate parties 
(including the permittee, the dredging contractor, EPA, USACE, and 
relevant Guam regulatory agencies), advising to check the Web site for 
that trip. This system provides for timely communication with the 
dredging project managers so that information about causes and remedies 
can be exchanged quickly. When necessary, EPA and USACE can require 
physical or operational changes be

[[Page 54506]]

made, or even that the scow in question be pulled immediately from 
service and not allowed to be used for disposal operations until 
repairs are completed and shown to be successful.
    One comment recommended that site monitoring include the seafloor 
area surrounding the site itself, that monitoring also occur for the 
presence of pelagics and planktonic organisms including coral larvae in 
the water column, and that sediment traps should be deployed outside 
the disposal site to verify the dispersion modeling.
    Both on-site and off-site stations will be included in benthic 
monitoring surveys. Sediment traps are not needed based on previous 
monitoring of deep ocean disposal operations, and because benthic 
surveys conducted under the SMMP will provide a more integrated, 
cumulative measure of the extent of dispersion and deposition. Water 
column monitoring for the presence of pelagic organisms, including 
coral larvae, is not necessary based on the Final EIS conclusion, 
discussed above, that although these organisms are expected to be 
present within the disposal site (just as they are present throughout 
the offshore waters west of Guam), significant impacts to their 
populations are not expected because disposal operations will be 
limited in area, extent and duration.

12. Compensatory Mitigation

    Some comments requested specific compensatory mitigation for 
disposal site designation, including deployment of new Fish Aggregation 
Devices (FADs) as alternative fishing areas to mitigate for loss of 
fishing opportunity, and direct monetary compensation for anglers of 
$1.9 million per year for the life of the disposal site or a lump-sum 
payment of $50 million.
    A broad range of impact avoidance and minimization measures are 
built into the site designation process itself, and additional 
avoidance and minimization measures have been incorporated into the 
SMMP. As noted above, fishing is not prohibited in or around the 
disposal site. The fishery is not concentrated around the disposal site 
(see Final EIS Sections 3.2.3 and 4.3). The Final EIS concluded that 
water column properties are relatively uniform throughout the offshore 
region including around the disposal site (see Final EIS Sections 
3.1.2-3.1.4). In the absence of unique oceanographic or habitat 
characteristics in the vicinity, the overall distribution of planktonic 
and larval organisms, as well as bait fish feeding on them and larger 
pelagic fish attracted by bait fish, would be expected to be similar 
throughout the offshore waters west of Guam. Furthermore, suspended 
sediment plumes from disposal events are expected to quickly dissipate 
to background levels within the disposal site (see Final EIS Section 
4.1.3). Following dissipation pelagic fishes or their prey would not 
necessarily avoid the area, and disposal operations are not expected to 
be so continuous or heavy that mobile fish species or their prey would 
avoid the area permanently. Since the disposal site represents a very 
small proportion of the offshore waters targeted by anglers (less than 
one percent of the waters within 30 miles to the west of Guam) and 
disposal effects will be limited and temporary even within the disposal 
site, significant direct or cumulative impacts to the ocean ecosystem, 
including to pelagic fish species targeted by anglers, are not 
expected. EPA therefore disagrees that there is any further need for 
compensatory mitigation of the kinds recommended.
    Some comments recommended that compensatory mitigation be required 
for any leakage or spills of dredged material outside the disposal 
site.
    Leaking or spillage of material during transit to the disposal site 
is prohibited by the SMMP and any ocean disposal permits issued. 
Substantial mandatory compliance monitoring effort is directed at 
confirming that neither occurs. We have added a new provision to the 
SMMP specifying that if a disposal barge leaks or spills significantly 
during a trip to the disposal site, it may not be used on subsequent 
ocean disposal trips until approved again by EPA and USACE. EPA has 
substantial enforcement authority under the Marine Protection, 
Research, and Sanctuaries Act, and may also refer violators to the 
Department of Justice for civil or criminal prosecution if necessary. 
Enforcement actions or settlements can require restoration where 
possible (e.g., in shallow water), in addition to monetary penalties.

H. 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 
Final 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 Final EIS. NOAA and 
FWS concluded that 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.

I. 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 Final Rule should have minimal impact on State, local or 
Tribal governments or communities. Consequently, EPA has determined 
that this Final 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

[[Page 54507]]

recordkeeping 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 recordkeeping 
requirements affecting ten or more non-Federal respondents be approved 
by OMB. Since the Final Rule would not establish or modify any 
information or recordkeeping 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 Final 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 Final 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 Final 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 Final 
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 between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This Final 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 Final 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 Final 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 Final Rule does not have 
Tribal implications, as specified in Executive Order 13175. The Final 
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 Final 
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 Final 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 Final 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 Final 
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 Final 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, section 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 
Final Rule does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

[[Page 54508]]

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 Final 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.

11. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This Final Rule will be effective October 8, 2010.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: August 31, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.

0
In consideration of the foregoing, EPA amends part 228, chapter I of 
title 40 of the Code of Federal Regulations as follows:

PART 228--[AMENDED]

0
1. The authority citation for part 228 continues to read as follows:

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

0
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' East Longitude (North 
American Datum from 1983), with an overall diameter of 3 nautical miles 
(5.6 kilometers).
    (ii) Size: 7.1 square nautical miles (24.3 square kilometers) 
overall site.
    (iii) Depth: 8,790 feet (2,680 meters).
    (iv) Use Restricted to Disposal of: Suitable 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 at least every 10 years.
* * * * *
[FR Doc. 2010-22324 Filed 9-7-10; 8:45 am]
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