[Federal Register Volume 78, Number 137 (Wednesday, July 17, 2013)]
[Proposed Rules]
[Pages 42730-42733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17102]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0196]
RIN 1625-AA00


Safety Zone; Old Mormon Slough, Stockton, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a safety zone at: 
McCormick & Baxter superfund site, Old Mormon Slough, Stockton, CA. 
This safety zone will support ongoing efforts by the Environmental 
Protection Agency to decontaminate soil, groundwater, and sediment in 
Old Mormon Slough and the surrounding basin. This safety zone will 
restrict vessels from entering Old Mormon Slough and disturbing the 
existing sediment cap needed for site decontamination. This safety zone 
will help reduce human health and environmental risks associated with 
clean up efforts at McCormick & Baxter superfund site.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 16, 2013.
    Requests for public meetings must be received by the Coast Guard on 
or before July 31, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2013-0196 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments. To avoid duplication, please use only one of these 
three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Mike VanHouten, Waterways Management Division, U.S. 
Coast Guard; telephone 510-437-2968, email [email protected] If 
you have questions on viewing or submitting material to the docket, 
call Barbara Hairston, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2013-0196), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.

[[Page 42731]]

    To submit your comment online, go to http://www.regulations.gov and 
type ``USCG-2013-0196'' in the ``Search'' box and click ``Search.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8 1/2 by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period.

2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
type the docket number ``USCG-2013-0196'' in the ``search'' box and 
click ``Search.'' You may also view the docket by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But, you may submit a 
request for a public meeting to the docket using one of the methods 
specified under ADDRESSES. In your request, explain why you believe a 
public meeting would be beneficial. If we determine that a public 
meeting would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

B. Basis and Purpose

    The Coast Guard is conducting this rulemaking under the authority 
of 33 U.S.C. 1231.
    The purpose of this rule is to establish a safety zone in Old 
Mormon Slough to further efforts of the EPA to rehabilitate soil, 
sediment, and ground water from contaminates of the McCormick & Baxter 
Creosoting Company.
    The McCormick & Baxter Creosoting Co. site is a 29-acre former 
wood-preserving facility located in an industrial area near the Port of 
Stockton. Old Mormon Slough, which is connected to the Stockton 
Deepwater Channel, borders the site on the north. Except for an 8-acre 
portion of the site owned by Southern Pacific Railroad Company, 
McCormick & Baxter owns the entire property. From 1942 to 1990, 
McCormick & Baxter treated utility poles and railroad ties with 
creosote, pentachlorophenol (PCP), and compounds of arsenic, chromium 
and copper. Wood treating chemicals were stored in tanks, and oily 
waste generated by the wood-treatment processes was stored in unlined 
ponds and concrete tanks on the site. The site came to the attention of 
state agencies in 1977 when a fish kill in New Mormon Slough and the 
Stockton Deepwater Channel was attributed to a release of PCP-
contaminated storm water runoff from the McCormick & Baxter facility. 
In 1978, McCormick & Baxter constructed a perimeter dike to prevent 
storm water runoff from the site and installed two storm water 
collection ponds. The unlined oily waste ponds were closed in 1981. 
Sampling has shown that soils throughout the site and groundwater in 
the shallow aquifer beneath the site are contaminated with PCP, various 
constituents of creosote, dioxin (a contaminant in industrial-grade 
PCP) and metals. Soil contamination extends to greater than 40 feet 
below ground surface (BGS) in the central processing area of the site. 
Site investigations indicate that the shallow aquifer (0--200 ft BGS) 
is connected with the deeper aquifer, which is a drinking water source. 
However, no drinking water supplies are currently threatened by site-
related contamination. Approximately 105,000 people live and work 
within 4 miles of the site. Sediment in Old Mormon Slough adjacent to 
the site is also contaminated, primarily with polycyclic aromatic 
hydrocarbons (PAHs) and dioxin. Site-related contaminants have been 
detected in fish caught in the vicinity of the site. People fish in the 
Stockton Channel and in Old Mormon Slough, although the McCormick & 
Baxter site is fenced and posted with warning signs.
    Previous testing conducted by the EPA found soils and groundwater 
were contaminated with PCP, dioxin, PAHs, which are constituents of 
creosote, arsenic, chromium, and copper. In addition, non-aqueous phase 
liquids are widespread beneath the site. Sediment in Old Mormon Slough 
adjacent to the site is also contaminated, primarily with PAHs and 
dioxin. Individuals who accidentally ingest or come in direct contact 
with contaminated soil, sediment or groundwater could be at risk. 
Drinking water from the deep aquifer has not been affected by any 
contaminants from the McCormick & Baxter site. Oily seeps from the 
former oily waste ponds into Old Mormon Slough occurred in the past, 
although the seeps are now controlled. Site-related contaminants have 
been found in locally-caught fish, which may be consumed by nearby 
fishermen and their families. Sediment contamination also poses an 
environmental threat to aquatic organisms in the vicinity of the site.
    The EPA is actively making efforts to control human exposure to 
contaminates via direct contact or ingestion in Old Mormon Slough as 
well as protect the decontamination process. The installation of storm 
water collection ponds and perimeter dike, site security improvements, 
chemical and sludge disposal, demolition and disposal of processing 
equipment and site structures, construction of a sheet piling wall 
along Old Mormon Slough, excavation and backfilling at the oily waste 
pond area, installation of a cap over the most heavily contaminated 
central portion of the site, and installation of a sand cap in Old 
Mormon Slough have reduced threats to public health and the environment 
from these areas of the site.

C. Discussion of Proposed Rule

    The Coast Guard proposes to establish a safety zone in Old Mormon 
Slough to help effect the rehabilitation process at McCormick & Baxter 
superfund site. In effort to stop pleasure craft from disturbing the 
sediment cap in Old Mormon Slough the EPA established a log boom at the 
waterway entrance. However, tidal influences and heavy weather, at 
times, caused the log boom to shift and allow vessels unrestricted 
access. It is imperative for proper rehabilitation that control 
measures beyond physical are implemented to restrict waterside 
interaction and allow contaminates to dissipate.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of

[[Page 42732]]

Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. We anticipate that this rule will have minimal 
impact on the economy, will not interfere with other agencies, and will 
not raise any novel legal or policy issues. The safety zone created by 
this proposed rule affects a contaminated area of water that is 
currently being decontaminated. This area has been previously cordoned 
off by an EPA log boom to discourage transit in this area.
    Thus, restrictions on vessel movement within this particular area 
are expected to be minimal. The Office of Management and Budget has not 
reviewed it under that Order.

2. Impact on Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The safety zone proposed by this rule will help prevent human 
health risks and allow for proper decontamination of the site. Its 
establishment will not affect any small entities. Therefore, the Coast 
Guard certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities. 
Comments submitted in response to this finding will be evaluated under 
the criteria in the ``Regulatory Information'' section of this 
preamble.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance; please consult Mr. Mike VanHouten via the ADDRESSES section 
of the rule. The Coast Guard will not retaliate against small entities 
that question or complain about this rule or any policy or action of 
the Coast Guard.

4. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have 
determined that it does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

12. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

13. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(g) of the Instruction. This rule involves 
the protection of the sediment cap and ongoing efforts by the EPA to 
reduce human health risks.
    A preliminary environmental analysis checklist and a preliminary 
categorical

[[Page 42733]]

exclusion determination are available in the docket. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 165

    Navigation (water) and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--SAFETY ZONES

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.1201 to read as follows:


Sec.  165.1201  Safety Zone; Old Mormon Slough, Stockton California.

    (a) General. This safety zone is established to protect 
environmental rehabilitation efforts and prevent vessels from 
disturbing the sediment cap at Old Mormon Slough.
    (b) Regulation. All vessels and personnel not associated with the 
EPA are prohibited from entering into and transiting Old Mormon Slough. 
Old Mormon Slough is defined as all waters Eastward from the connection 
of coordinates 37[deg] 57' 02.13'' North, 121[deg] 18' 49.55'' West and 
37[deg] 57' 01.11'' North, 121[deg] 18' 46.75'' West (NAD 83).
    (c) Each person in a safety zone who has notice of a lawful order 
or direction shall obey the order or direction of the COTP or District 
Commander issued to carry out the purposes of this subpart.
    (d) The Coast Guard may be assisted in enforcing this rule by other 
Federal, state, or local agencies.

    Dated: May 22, 2013.
K. L. Schultz,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 2013-17102 Filed 7-16-13; 8:45 am]
BILLING CODE 9110-04-P