[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Proposed Rules]
[Pages 38672-38679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14911]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R06-OW-2011-0712; FRL-9826-5]


Ocean Dumping; Sabine-Neches Waterway (SNWW) 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 four new Ocean Dredged 
Material Disposal Site(s) (ODMDS) located offshore of Texas for the 
disposal of dredged material from the Sabine-Neches Waterway (SNWW), 
pursuant to the Marine Protection, Research and Sanctuaries Act, as 
amended (MPRSA). The new sites are needed for the disposal of 
additional dredged material associated with the SNWW Channel 
Improvement Project, which includes an extension of the Entrance 
Channel into the Gulf of Mexico. Final action by EPA on this proposal 
would authorize the disposal of the additional dredged materials at the 
additional ocean disposal sites.

DATES: Comments on this proposed rule must be received on or before 
August 12, 2013.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OW-
2011-0712, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov; 
follow the online instruction for submitting comments.
     Email: Dr. Jessica Franks at [email protected].
     Fax: Dr. Jessica Franks, Marine and Coastal Section (6WQ-
EC) at fax number 214-665-6689.
     Mail: Dr. Jessica Franks, Marine and Coastal Section (6WQ-
EC), Environmental Protection Agency, Mailcode: (6WQ-EC), 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733.
    Instructions: Direct your comments to Docket No. EPA-R06-OW-2011-
0712. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Marine and Coastal 
Section (6WQ-EC), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. The file will be made available 
by appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below. If possible, please make the appointment at 
least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents. On the day of 
the visit, please check in at the EPA Region 6 reception area at 1445 
Ross Avenue, Suite 700, Dallas, Texas.

FOR FURTHER INFORMATION CONTACT: Jessica Franks, Ph.D., Marine and 
Coastal Section (6WQ-EC), Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 
665-8335, fax number (214) 665-6689; email address 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Potentially Affected Entities
B. Background
C. Disposal Volume Limit
D. Site Management and Monitoring Plan
E. Ocean Dumping Site Designation Criteria
    General Selection Criteria
    Specific Selection Criteria
F. Regulatory Requirements
    1. National Environmental Policy Act (NEPA)
    2. Endangered Species Act Consultation
    3. Magnuson-Stevens Fishery Conservation and Management Act of 
1996
    4. Coastal Zone Management Act
    5. Coastal Barrier Improvement Act of 1990
G. Administrative Review
    1. Executive Order 12886
    2. Paperwork Reduction Act
    3. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996
    4. Unfunded Mandates
    5. Executive Order 13132: Federalism
    6. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    7. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks

[[Page 38673]]

    8. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use Compliance With Administrative 
Procedure Act
    9. National Technology Transfer Advancement Act
    10. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low Income 
Populations
List of subjects in 40 CFR Part 228
Part 228--[Amended]

    The supporting document for these site designations is the Final 
Environmental Impact Statement (EIS) for the Sabine-Neches Waterway 
Channel Improvement Project: Southeast Texas and Southwest Louisiana 
(SNWW CIP) dated March 2011 prepared by the U.S. Army Corps of 
Engineers (also Corps or USACE). Appendix B of Volume III contains the 
Ocean Dredged Material Disposal Sites Final Environmental Impact 
Statement. Comments will only be considered on the proposed site 
designations. The U.S. Army Corps of Engineers Final EIS for the SNWW 
CIP was published in the Federal Register (FR) March 4, 2011 (76 FR 
12108). This document is available for public inspection at the 
following locations:
    1. Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733
    2. Federal e-Rulemaking Portal: http://www.regulations.gov; follow 
the online instruction for submitting comments.

A. Potentially Affected Entities

    Persons potentially affected by this final action include those who 
seek or might seek permits or approval by EPA to dispose of dredged 
material into ocean waters pursuant to the Marine Protection, Research, 
and Sanctuaries Act, 33 U.S.C. 1401 et seq. The EPA's action is 
relevant to persons, including organizations and government bodies, 
seeking to dispose of dredged material in ocean waters offshore of 
Texas for the disposal of dredged material from the Sabine-Neches 
Waterway. Currently, the US Army Corps of Engineers will be most 
impacted by this final action. Potentially affected categories and 
persons include:

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                                                                             Examples of potentially regulated
                                Category                                                  persons
----------------------------------------------------------------------------------------------------------------
Federal government......................................................   U.S. Army Corps of Engineers Civil
                                                                           Works projects, and other Federal
                                                                           agencies.
Industry and general public.............................................   Port authorities, marinas and
                                                                           harbors, shipyards and marine repair
                                                                           facilities, berth owners.
State, local and tribal governments.....................................  Governments owning and/or responsible
                                                                           for ports, harbors, and/or berths,
                                                                           Government agencies requiring
                                                                           disposal of dredged material
                                                                           associated with public works
                                                                           projects.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding persons likely to be affected by this 
action. For any questions regarding the applicability of this action to 
a particular person, please refer to the contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. Background

    Ocean disposal of dredged materials is regulated under Title I of 
the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. 1401 et 
seq. (MPRSA). The EPA and the USACE share responsibility for the 
management of ocean disposal of dredged material. Under Section 102 of 
MPRSA, EPA is responsible for designating an acceptable location for 
the ocean dredged material disposal sites (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 40 CFR part 227. In lieu of 
the permit procedure for a federal project involving dredged material, 
the USACE may issue and abide by regulations using the same criteria, 
other factors to be evaluated, same procedures and same requirements 
that apply to the issuance of permits.

    Pursuant to its voluntary NEPA policy, published on October 29, 
1998 (63 FR 58045), EPA typically relies on the EIS process to 
enhance public participation on the proposed designation of an 
ODMDS. A site designation EIS evaluates alternative sites and 
examines the potential environmental impacts associated with 
disposal of dredged material at various locations. Such an EIS first 
demonstrates 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 a 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 that satisfy these criteria, the 
site that best complies is selected as the preferred alternative for 
designation through a rulemaking proposal published in the Federal 
Register, as here.

    Formal designation of an ODMDS in the Federal Register and 
codification in the Code of Federal Regulations does not constitute 
approval of dredged material for ocean disposal. Site designation 
merely identifies a suitable ocean location in the event that dredged 
material is later approved 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, the dredging project proponent must demonstrate a need for ocean 
disposal, including consideration of alternatives. Alternatives to 
ocean disposal, including the option for beneficial re-use of dredged 
material, are evaluated for each dredging project that may result in 
the ocean disposal of dredged materials from such project. Ocean 
disposal of dredged material is only allowed after both EPA and USACE 
determine that the proposed activity is environmentally acceptable 
under criteria codified in 40 CFR part 227 and 33 CFR part 336, 
respectively. In addition, ongoing management of these ODMDS would be 
subject to Site Management and Monitoring Plan(s) (SMMP) required by 
MPRSA section 102(c)(3)(F) and (c)(4), which are discussed more fully 
below.
    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 prescribed by national sediment testing protocols 
(EPA and USACE 1991). Only clean non-toxic dredged material is 
acceptable for ocean disposal. The newly designated sites will be 
subject to ongoing monitoring and management to ensure continued 
protection of the marine environment.
    Evaluation of the proposed ODMDS under EPA's general and specific 
criteria is described in the March 2011 ``Final Environmental Impact 
Statement for Sabine-Neches Waterway Channel Improvement Project 
Southeast Texas and Southwest Louisiana, Appendix B.'' As identified in 
that appendix, the

[[Page 38674]]

environmentally preferred sites that EPA now proposes to designate are 
SNWW-A, which is located 21 miles from shore, SNWW-B, which is located 
24 miles from shore, SNWW-C, which is located 27 miles from shore, and 
SNWW-D, which is located 30 miles from shore. Each of the ODMDS 
occupies an area of 5.3 square statute miles, with depths ranging from 
44 to 46 feet. The bottom topography is flat. The proposed action, once 
final, would provide adequate, environmentally-acceptable ocean 
disposal site capacity for suitable dredged material generated from new 
work (construction) and future maintenance dredging along the SNWW 
Entrance Channel 13.2 mile extension by formally designating the SNWW 
A-D sites as acceptable ocean disposal locations for dredged material 
meeting applicable requirements.

C. Disposal Volume Limit

    The action would formally designate the SNWW A-D for a one-time 
placement of approximately 18,737,000 cubic yards (cy) of new work 
(construction) material plus approximately 37,725,000 cubic yards of 
maintenance material over a 50-year period. The need for ongoing ocean 
disposal capacity would be based on modeling in the USACE SNWW CIP 
Engineering Appendix.

D. Site Management and Monitoring Plan

    Continuing use of the sites requires verification that significant 
impacts do not occur outside of the disposal site boundaries through 
implementation of the SMMP developed as part of the Final EIS developed 
for the Sabine-Neches Waterway Project. 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). Two main objectives for management of 
SNWW A-D are: (1) To ensure that only dredged material that satisfies 
the criteria set forth in 40 CFR part 227 subparts B, C, D, E, and G 
and part 228.4(e) and is suitable for unrestricted placement at the 
ODMDS is, in fact, disposed at the sites, and; (2) to avoid excessive 
mounding, either within the site boundaries or in areas adjacent to the 
sites, as a direct result of placement operations.
    The EPA and USACE Galveston District personnel would achieve these 
SMMP objectives by jointly administering the following activities in 
accordance with MPRSA section 102(c)(3): (1) A baseline assessment of 
conditions at the sites; (2) a program for monitoring the sites; (3) 
special management conditions or practices to be implemented at the 
sites that are necessary for protection of the environment; (4) 
consideration of the quantity of dredged material to be discharged at 
the sites, and the presence, nature, and bioavailability of the 
contaminants in the material; (5) consideration of the anticipated use 
of the sites over the long term, including the anticipated closure date 
for the sites, if applicable, and any need for management of the sites 
after the closure; and (6) a schedule for review and revision of the 
SMMP.
    The SMMP prepared for the sites requires periodic physical 
monitoring to confirm that disposal material is deposited within the 
seafloor disposal boundary, as well as bathymetric surveys to confirm 
that there is no excessive mounding or short-term transport of material 
beyond the limits of the ODMDS. Physical and chemical sediment and 
biological monitoring requirements are described in the SMMP and are 
required to be conducted based on the Evaluation of Dredged Material 
Proposed for Ocean Disposal Testing Manual, EPA 503/8-91/001 and the 
Joint EPA-USACE Regional Implementation Agreement (RIA) procedures. 
Results will be used to confirm that dredged material actually disposed 
at the site satisfies the criteria set forth in 40 CFR part 227 
subparts B, C, D, E, and G and part 228.4(e) and is suitable for 
unrestricted ocean disposal. 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

    In proposing to designate these Sites, the EPA assessed the 
proposed Sites according to the criteria of the MPRSA, with particular 
emphasis on the general and specific regulatory criteria of 40 CFR 
228.5 and 228.6(a), to determine whether the proposed site designations 
satisfy those criteria.

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 EPA selected SNWW A-D, including appropriate buffer zones, to 
avoid sport and commercial fishing activities, as well as other areas 
of biological sensitivity. The preferred ODMDS are outside the channel, 
including the navigation channel buffer zone, and safety fairways, and 
avoid known navigational obstructions, although they do infringe on two 
Fairway Anchorage areas.
    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.
    The proposed sizes for the buffer zones and for the SNWW A-D sites 
are based on sediment transport modeling and the physical oceanographic 
characterization of the Sabine Pass area. Modeling and 
characterization, combined with the information on the expected quality 
of the material to be dredged, ensures that perturbations caused by 
placement are reduced to ambient conditions at the boundaries of the 
site. Reports of the modeling and characterization are included in the 
administrative record for this action.
    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.
    This criterion would not apply to the proposed site designations 
because they are not existing sites that had previously been approved 
on an interim basis.
    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 sizes of the proposed sites are as small as possible to 
reasonably meet the

[[Page 38675]]

criteria stated in 40 CFR 228.5 and 40 CFR 228.6(a). The size for each 
proposed ODMDS is 5.32 square statute miles (4.02 square nautical 
miles). The SMMPs have been designed to provide adequate surveillance 
to prevent adverse long-range impacts.
    5. The EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.
    Cost, safety, and time factors plus difficulties with monitoring 
and surveillance preclude the designation of any ODMDS beyond the edge 
of the Continental Shelf off Sabine Pass (and the Gulf of Mexico 
generally). Additionally, uncertainty about the resilience of the deep-
ocean benthic community indicates that an off-shelf disposal site could 
threaten severe adverse impacts to that off-shelf benthic community. 
The EPA did not identify an environmental advantage to an off-shelf 
site designation, whereas possible adverse impacts to the human 
environment could be more easily monitored at a nearshore site. The 
existing ODMDS that have been used historically, while large enough to 
accommodate future maintenance material, are cost prohibitive with 
regard to disposal of dredged material from the channel extension. 
Without designation of the four new ODMDS, this material would need to 
be transported to the existing maintenance ODMDS. The end of the 
existing channel is roughly 13 miles from the end of the proposed 
extension, resulting in an increased travel distance of 26 miles for 
each load of dredged material from the extension work. Construction 
costs are expected to double under this scenario, making it impossible 
to economically justify the SNWW CIP.

Specific Selection Criteria

    1. Geographical position, depth of water, bottom topography, and 
distance from the coast.
    The proposed sites are bounded by the following coordinates 
(Location North American Datum from 1983):

A ODMDS......................  29[deg]24'47'' N, 93[deg]43'29'' W;
                                29[deg]24'47'' N, 93[deg]41'08'' W
                               29[deg]22'48'' N, 93[deg]41'09'' W;
                                29[deg]22'49'' N, 93[deg]43'29'' W
B ODMDS......................  29[deg]21'59'' N, 93[deg]43'29'' W;
                                29[deg]21'59'' N, 93[deg]41'08'' W
                               29[deg]20'00'' N, 93[deg]41'09'' W;
                                29[deg]20'00'' N, 93[deg]43'29'' W
C ODMDS......................  29[deg]19'11'' N, 93[deg]43'29'' W;
                                29[deg]19'11'' N, 93[deg]41'09'' W
                               29[deg]17'12'' N, 93[deg]41'09'' W;
                                29[deg]17'12'' N, 93[deg]43'29'' W
D ODMDS......................  29[deg]16'22'' N, 93[deg]43'29'' W;
                                29[deg]16'22'' N, 93[deg]41'10'' W
                               29[deg]14'24'' N, 93[deg]44'10'' W;
                                29[deg]14'24'' N, 93[deg]43'29'' W
 

    The water depth at the proposed SNWW A-D sites ranges from 44 to 46 
feet and the bottom topography is flat. SNWW-A would be located 21 
miles from shore, SNWW-B would be located 24 miles from shore, SNWW-C 
would be located 27 miles from shore and SNWW-D would be located 30 
miles from shore.
    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 these sites, the presence of 
aerial, pelagic, or benthic living resources is likely within the area 
of the proposed sites. The location of the proposed ODMDS can be 
described as being between the principal spawning areas and the 
estuarine nursery areas. The water column and benthic effects 
associated with ocean disposal of dredged material at the proposed 
ODMDS would not adversely affect the passage of organisms to and from 
the spawning-nursery areas through the waters above the disposal sites. 
Localized and intermittent dredged material disposal operations are 
unlikely to adversely affect migration, feeding, or nesting of marine 
mammals and sea turtles.
    3. Location in relation to beaches and other amenity areas.
    The preferred sites are over 21 miles from any beach and Sabine 
Bank is at least 1.7 miles from the nearest of the proposed ODMDS. 
According to the dredged material transport model (available in the 
administrative record), the maximum distance for the mounded dredged 
material to reach ambient depth was 1,081 feet. Doubling this distance 
would provide a buffer of 0.4 mile, only a fraction of the 1.7 miles to 
Sabine Bank.
    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 from the SNWW Entrance Channel 13.2 
mile extension may be disposed at the sites. 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 from the SNWW Entrance Channel 13.2 mile extension would be 
allowed to be disposed of at the SNWW A-D sites. Approximately 18.7 mcy 
of new work material will be dredged during the construction of 13.2-
mile extension of the Entrance Channel. Maintenance material per 
dredging cycle is estimated at three mcy for a total of 37.7 mcy over a 
period of 50 years. Dredged material is expected to be released from 
hopper dredges.
    5. Feasibility of surveillance and monitoring.
    The proposed sites are amenable to surveillance and monitoring. The 
SMMP prepared for the sites consists of (1) A method for recording the 
location of each discharge; (2) bathymetric surveys; and, (3) grain-
size analysis, sediment chemistry characterization, and benthic 
infaunal analysis at selected stations.
    6. Dispersal, horizontal transport, and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any.
    These three physical oceanographic parameters were used by the U.S. 
Army Corps of Engineers to develop the necessary buffer zones for the 
exclusion analysis and to determine the adequacy of size of the 
proposed sites. Predominant long shore currents, and thus predominant 
long shore transport, are to the west. Long-term mounding has not 
historically occurred in the existing nearby ODMDS. Therefore, steady 
longshore transport and occasional storms, including hurricanes, are 
expected to remove the disposed material from the sites through 
dispersal, horizontal transport, and vertical mixing.
    7. Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects).
    The Final Environmental Impact Statement discusses the results of 
chemical and bioassay testing of samples collected to support the 
proposed Waterway Extension and surrounds, and concluded that there 
were no indications of water or sediment quality problems in the ZSF, 
including the proposed disposal sites. Testing of dredged material 
collected and tested from past maintenance dredging indicates that the 
material dredged from the channel was acceptable for ocean disposal 
according

[[Page 38676]]

to the evaluation criteria published at 40 CFR part 227. Based on 
current direction and modeling of the new work and maintenance 
material, the proposed disposal sites would be situated to prevent 
discharged material from reentering the channel and to ensure that any 
mounding poses no obstruction to navigation. No cumulative mounding has 
been detected at the existing ODMDS and there is no reason to expect 
any at the proposed ODMDS.
    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.
    The interference considerations that are pertinent to the present 
situation are shipping, mineral extraction, commercial and recreational 
fishing, and recreational areas. The preferred sites would not 
interfere with these or other legitimate uses of the ocean because the 
exclusion processes used to identify the proposed sites was designed to 
prevent the selection of sites that would cause any such interference. 
Ocean disposal of dredged material in the past has not interfered with 
other uses.
    9. Existing water quality and ecology of the site as determined by 
available data or by trend assessment or baseline surveys.
    The FEIS to support the proposed Waterway Extension project cited a 
baseline study, which used sediment samples from the area of the 
proposed Extension and the ZSF. No adverse water or sediment quality 
concerns were indicated. Benthos of the area was sampled and 
characterized, is dominated by polychaetes (57.7%) and included 
abundant populations of malacostracans (18.3%) and bivalves (7.7%). 
Density ranged from 4,055 organisms/square foot at Station 3 (north of 
ODMDS A) up to 30,265 organisms/square foot at Station 26 (center of 
ODMDS B). Areas of moderately high sand content (68 to 91%) supported 
the highest densities, located near ODMDS B and ODMDS C, near the 
center of the ZSF. In general, the water and sediment quality is good 
throughout the ZSF and in the existing (historically used) ODMDS. There 
have been no long-term adverse impacts on water and sediment quality or 
benthos at the existing ODMDS, and none are expected with use of the 
proposed sites.
    10. Potentiality for the development or recruitment of nuisance 
species in the disposal site.
    With disturbances to any benthic community, opportunistic species 
would initially recolonize the area. At this location, however, these 
species would not be nuisance species, i.e., they would not interfere 
with other legitimate uses of the ocean, that they would not be human 
pathogens, and would not be non-indigenous species. The placement of 
dredged material in the past has not attracted nor promoted development 
or recruitment of nuisance species, and the placement of the dredged 
material from new work and future maintenance dredged material should 
not attract or promote the development or recruitment of nuisance 
species.
    11. Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    Historic records generated by the former Minerals Management 
Service (MMS) indicate that no historic shipwrecks are mapped within 
the limits of the proposed ODMDS, but remote-sensing surveys have not 
been conducted. Ocean disposal of dredged material is not expected to 
adversely affect any unrecorded wrecks given the depth of water through 
which the material would settle and the expected depth of burial at the 
time of disposal, particularly given the dispersive nature of the 
seabed environment in this portion of the Gulf. The distribution, 
depth, and dispersion of dredged material within these ODMDS have been 
evaluated by numerical modeling (PBS&J, 2006). Hopper dredges would 
drop dredged material onto the proposed ODMDS, forming mound fields 
with individual mounds totaling no more than five feet in height. The 
effects of the deposition of material on any undiscovered resource 
would be cushioned by settling through water depths ranging from 30 to 
45 feet. Previous monitoring of existing placement areas and studies of 
bottom ocean currents has shown that the material would disperse 
between channel maintenance cycles and not accumulate. The proposed 
ODMDS would be located in Federal waters (i.e., outside of adjacent 
State jurisdiction).

F. Regulatory Requirements

1. National Environmental Policy Act (NEPA)

    Pursuant to section 102(2)(C) of the National Environmental Policy 
Act of 1969 (NEPA), federal agencies are generally required to prepare 
an environmental impact statement (EIS) on major federal actions 
significantly affecting the quality of the human environment. Under the 
doctrine of functional equivalency, EPA designations of ODMDS under 
MPRSA are not subject to NEPA requirements. The EPA believes the NEPA 
process enhances public participation on such designations and the 
potential effects of these proposed designations were fully analyzed in 
an EIS on the Sabine-Neches Waterway Channel Improvement Project: 
Southeast Texas and Southwest Louisiana (SNWW CIP). The Corps of 
Engineers was the lead agency on that EIS and EPA a cooperating agency.
    Notice of the draft EIS was published in the Federal Register on 
December 24, 2009, and the document was available for review and 
comment through March 10, 2010. In addition, public meetings on the EIS 
were held in Beaumont, Texas and Lake Charles, Louisiana. Comments 
included concerns on pipeline relocation, marsh ecology, beneficial use 
of dredged material, and increased danger from storms. Few comments 
were received on designation of the ODMDS. Detailed responses to 
comments were published in Appendix A of the final EIS, notice of which 
was published in the Federal Register on March 4, 2012. The EPA has 
relied on information from the EIS and its technical appendices in its 
consideration and application of ocean dumping criteria to the four 
ODMDS it proposes to designate today.

2. Endangered Species Act Consultation

    During development of the SNWW CIP project EIS referenced above, 
USACE and EPA consulted with the U.S. Fish and Wildlife Service (USFWS) 
and the National Marine Fisheries Service (NMFS) 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. The consultation 
process is documented in that EIS.
    Of the Threatened or Endangered Species noted in the biological 
assessment for the SNWW CIP, only sea turtles and whales are found as 
far offshore as the proposed ODMDS. The NMFS issued a biological 
opinion on August 13, 2007, that the proposed action (including 
proposed site designations) is not likely to jeopardize the continued 
existence of any Federally-listed species.

3. Magnuson-Stevens Fishery Conservation and Management Act of 1996

    The designation of the proposed ODMDS will not adversely affect 
essential fish habitat. By letter dated March 8, 2010, the National 
Marine Fisheries Service concurred with the USACE findings that 
beneficial features

[[Page 38677]]

associated with the project would offset any adverse impacts of the 
Waterway Expansion project.

4. Coastal Zone Management Act

    Pursuant to section 307(c)(1) of the Coastal Zone Management Act, 
federal activities that affect a state's coastal zone must be 
consistent to the maximum extent practicable with the enforceable 
policies of the state's approved Coastal Zone Management (CZM) program. 
To implement that requirement, federal agencies prepare coastal 
consistency determinations and submit them to the appropriate state 
agencies, which may concur in or object to a consistency determination.
    In connection with its preparation of the EIS on the Sabine-Neches 
Waterway Channel Improvement Project, the Corps prepared a coastal 
consistency determination on its proposed navigation projects and the 
ODMDS designation, which it submitted to the Louisiana Department of 
Natural Resources (LDNR) and the Texas General Land Office (TGLO), the 
agencies implementing approved coastal zone management plans for their 
respective states. On March 30, 2010, TGLO concurred in the Corps 
consistency determination. By letter of March 31, 2010, LDNR concurred 
on condition that the Corps submit a supplemental consistency 
determination to LDNR after the project planning and design process, 
resulting in a more detailed description of project features. LDNR's 
letter also generally opposed EPA's ODMDS designation, claiming it 
would provide the Corps an option other than beneficial use for 
disposal of dredged material.
    More detailed plans and descriptions of the proposed navigation 
projects may be needed for LDNR and the Corps to resolve potential 
issues on the practicability of beneficial use of dredged materials in 
Louisiana's coastal zone. Such issues are independent of EPA's proposed 
ODMDS designations, however, which only make an offshore disposal 
option available when the Corps deems beneficial use that might 
otherwise be required by a state CZM program impracticable. EPA 
supports beneficial use of dredged material, but ODMDS designations do 
not in any way require that the Corps forego beneficial use in favor of 
ocean disposal.
    Moreover, the closest of any of the four proposed ODMDS is 
approximately 20 miles off the Texas coast at its nearest point. 
Predominant longshore currents in the proposed ODMDS locations flow 
from east to west and dredged material transport modeling shows that 
any dredged materials discharged to them will not thus enter or 
otherwise affect Louisiana's coastal zone. Because the proposed ODMDS 
designations will not affect any land or water use or natural resource 
of Louisiana's coastal zone, no coastal consistency determination need 
be prepared for today's proposal.

5. Coastal Barrier Improvement Act of 1990

    The disposal of dredged materials related to maintenance and 
construction is an exception to Federal expenditure restrictions 
related to Coastal Barrier Resources Act of 1982; therefore, project 
activities related to disposal are exempt from the prohibitions set 
forth in this act.

G. Administrative Review

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

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. Therefore, 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 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 record-keeping requirements affecting ten or 
more non-Federal respondents be approved by OMB. The EPA anticipates 
that few, if any, non-federal entities will use the sites as none have 
in the past.

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 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. 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 that 
may result in estimated costs of $100 million or more in any year. It 
imposes no new enforceable duty on any State, local or Tribal 
governments or the private sector nor does it contain any 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

[[Page 38678]]

regulatory policies that have federalism implications. ``Policies that 
have federalism implications'' are 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 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.

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 defined in Executive Order 13175.

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. 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) directs Federal agencies to 
determine whether the proposed rule would have a disproportionate 
adverse impact on minority or low-income population groups within the 
project area. The proposed rule would not significantly affect any low-
income or minority population.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: June 12, 2013.
Ron Curry,
Regional Administrator, Region 6.

    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--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING

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 paragraphs (j) (23 through 26) 
to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (j) * * *
    (23) Sabine-Neches, TX Dredged Material Site A.
    (i) Location: 29[deg]24'47'' N., 93[deg]43'29'' W.; 29[deg]24'47'' 
N., 93[deg]41'08'' W.; 29[deg]22'48'' N., 93[deg]41'09'' W.; 
29[deg]22'49'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. 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.
    (24) Sabine-Neches, TX Dredged Material Site B.
    (i) Location: 29[deg]21'59'' N., 93[deg]43'29'' W.; 29[deg]21'59'' 
N., 93[deg]41'08'' W.; 29[deg]20'00'' N., 93[deg]41'09'' W.; 
29[deg]20'00'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. 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.
    (25) Sabine-Neches, TX Dredged Material Site C.
    (i) Location: 29[deg]19'11'' N., 93[deg]43'29'' W.; 29[deg]19'11'' 
N, 93[deg]41'09'' W.; 29[deg]17'12'' N., 93[deg]41'09'' W.; 
29[deg]17'12'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged

[[Page 38679]]

material that does not meet the criteria set forth in 40 CFR part 227 
shall not be placed at the site. 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.
    (26) Sabine-Neches, TX Dredged Material Site D.
    (i) Location: 29[deg]16'22'' N., 93[deg]43'29'' W.; 29[deg]16'22'' 
N., 93[deg]41'10'' W.; 29[deg]14'24'' N., 93[deg]44'10'' W.; 
29[deg]14'24'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. 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. 2013-14911 Filed 6-26-13; 8:45 am]
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