[Federal Register Volume 84, Number 122 (Tuesday, June 25, 2019)]
[Proposed Rules]
[Pages 29828-29834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13396]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R04-OW-2016-0354; FRL-9995-38-Region 4]
Ocean Dumping: Modification of an Ocean Dredged Material Disposal
Site Offshore of Mobile, Alabama
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a modification of the existing EPA designated ocean dredged
material disposal site (ODMDS) offshore of Mobile, Alabama (referred to
hereafter as the existing Mobile ODMDS) pursuant to the Marine
Protection, Research and Sanctuaries Act, as amended (MPRSA). The
primary purpose for the site modification is to enlarge the site to
serve the long-term need for a location to dispose of suitable material
dredged from the Mobile Harbor Federal navigation channel, and for the
disposal of suitable dredged material for persons who receive an MPRSA
permit for such disposal. The modified site will be subject to
monitoring and management to ensure continued protection of the marine
environment.
DATES: Written comments must be received on or before August 9, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2019-xxxx, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments and accessing the docket and materials related to
this proposed rule.
Email: [email protected].
Mail: Lena Weiss, U.S. Environmental Protection Agency,
Region 4, Water Division, Oceans and Estuarine Management Section, 61
Forsyth Street, Atlanta, Georgia 30303.
Instructions: Direct your comments to Docket ID No. EPA-R04-OW-
2019-xxxx. The 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 through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov website is an
``anonymous access'' system, which means the 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 the 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, the 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 the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
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. For additional information about the
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: Publicly available docket materials are available either
electronically at www.regulations.gov or in hard copy during normal
business hours from the regional library at the EPA, Region 4 Library,
9th Floor, 61 Forsyth Street, Atlanta, Georgia 30303. For access to the
documents at the Region 4 Library, contact the Region 4 Library
Reference Desk at (404) 562-8190, between the hours of 9:00 a.m. to
12:00 p.m., and between the hours of 1:00 p.m. to 4:00 p.m., Monday
through Friday, excluding Federal holidays, for an appointment.
FOR FURTHER INFORMATION CONTACT: Lena Weiss, U.S. Environmental
Protection Agency, Region 4, Water Division, Oceans and Estuarine
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone
number (404) 562-9228; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Potentially Affected Persons
Persons potentially affected by this action include those who seek
or might
[[Page 29829]]
seek permits or approval to dispose of dredged material into ocean
waters pursuant to the MPRSA, 33 U.S.C. 1401 to 1445. The EPA's
proposed action would be relevant to persons, including organizations
and government bodies seeking to dispose of dredged material in ocean
waters offshore of Mobile, Alabama. Currently, the U.S. Army Corps of
Engineers (USACE) would be most affected by this action. Potentially
affected categories and persons include:
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Examples of potentially regulated
Category persons
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Federal government................ USACE 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 owning and/or
governments. responsible for ports, harbors, and/
or berths, Government agencies
requiring disposal of dredged
material associated with public
works projects.
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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.
II. Background
a. History of Disposal Sites Offshore of Mobile, Alabama
There is currently one designated ODMDS off the coast of Mobile,
Alabama. The existing Mobile ODMDS is located between two and six miles
south of Dauphin Island in the Gulf of Mexico. It is currently 4.75
square nautical miles (nmi\2\) in size. The Mobile ODMDS received
interim site designation status in 1977 and final designation in 1987.
The USACE Mobile District and the EPA Region 4 have identified a
need to either designate a new ODMDS or modify the existing Mobile
ODMDS. The need for modifying current ocean disposal capacity is based
on future capacity requirements, historical dredging volumes, estimates
of dredging volumes for future proposed projects, and limited capacity
of upland confined disposal facilities (CDFs) in the area.
EPA today is proposing to modify, or expand, the existing Mobile
ODMDS rather than designate a new site off the coast of Mobile for
ocean disposal of dredged material. The proposed modification of the
existing Mobile ODMDS for dredged material does not mean that the USACE
or the EPA has approved the use of the existing Mobile ODMDS or a
modified Mobile ODMDS for open water disposal of dredged material from
any specific project. Before any person can ocean dump dredged material
at the existing Mobile ODMDS or a modified Mobile ODMDS, the EPA and
the USACE must evaluate the project according to the ocean dumping
regulatory criteria (40 CFR part 227) and USACE must authorize the
disposal. The EPA independently evaluates proposed dumping and has the
right to restrict and/or disapprove of the actual disposal of dredged
material if the EPA determines that environmental requirements under
the MPRSA have not been met. This action is supported by a Draft
Environmental Assessment, which was provided for public notice and
comment in September of 2018.
b. Location and Configuration of the Proposed Modified Mobile ODMDS
This action proposes the modification of the existing Mobile ODMDS.
The proposed modified ODMDS is in approximately 34 to 57 feet of water
and is located between 2.0 and 6.0 nautical miles south of Dauphin
Island, Alabama. The proposed modified ODMDS would expand the existing
Mobile ODMDS from a size of approximately 4 nmi\2\ to approximately
23.8 nmi\2\ in size. The location of the proposed modified ODMDS is
bounded by the coordinates listed below. The proposed coordinates for
the site are in North American Datum 83 (NAD 83):
Proposed Modified Mobile ODMDS
(A) 30[deg] 13.0' N, 88[deg] 08.8' W
(B) 30[deg] 09.6' N, 88[deg] 04.8' W
(C) 30[deg] 08.5' N, 88[deg] 05.8' W
(D) 30[deg] 08.5' N, 88[deg] 12.8' W
(E) 30[deg] 12.4' N, 88[deg] 12.8' W
The proposed modification of the existing ODMDS will allow the EPA to
adaptively manage the site to maximize its capacity, minimize the
potential for mounding and associated safety concerns, and minimize the
potential for any long-term adverse effects to the marine environment.
c. Management and Monitoring of the Site
The proposed modified ODMDS is expected to receive dredged material
from the federally authorized navigation project at Mobile Harbor,
Alabama, and dredged material from other applicants who have obtained a
permit for the disposal of dredged material at the proposed modified
ODMDS. All persons using the site will be required to follow the Site
Management and Monitoring Plan (SMMP) for the ODMDS that is
specifically developed for the proposed modified ODMDS. A draft SMMP
for the proposed modified ODMDS was been publicly reviewed and will be
finalized by the EPA Region 4 and the USACE Mobile District prior to a
final decision on this rule. The SMMP includes management and
monitoring requirements to ensure that dredged materials disposed at
the proposed modified ODMDS are suitable for disposal in the ocean and
that adverse impacts of disposal, if any, are addressed to the maximum
extent practicable. This includes provisions to avoid and minimize
potential impacts to artificial reefs and cultural resources. The SMMP
for the proposed modified ODMDS also addresses management of the site
to ensure adverse mounding does not occur and ensures that disposal
events minimize interference with other uses of ocean waters near the
proposed modified ODMDS.
d. MPRSA Criteria
In evaluating the proposed modified ODMDS, the EPA assessed the
site according to the criteria of the MPRSA, with emphasis on the
general and specific regulatory criteria of 40 CFR part 228, to
determine whether the proposed site designation satisfies those
criteria. The EPA's Draft Environmental Assessment for Modification of
the Ocean Dredged Material Disposal Site Mobile, Alabama, September
2018 (DEA), provides an extensive evaluation of the criteria and other
related factors for the modification of the existing ODMDS.
General Criteria (40 CFR 228.5)
(1) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
The location of the proposed modified ODMDS was screened in 1982 by
the USACE as part of their evaluation of the area for selection of a
location for ocean dumping of dredged material under Section 103 of
MPRSA, as there was no
[[Page 29830]]
EPA designated ODMDS at the time. That evaluation included
considerations of potential interference with other activities in the
marine environment including avoiding areas of existing critical
fisheries or shellfisheries, and regions of heavy commercial or
recreational navigation. These evaluations were re-considered from 2002
through to the present time, as the proposed modified ODMDS continued
to be assessed.
(2) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
The proposed ODMDS modification area will be used for disposal of
suitable dredged material as determined by Section 103 of the MPRSA.
Based on the USACE and EPA sediment testing and evaluation of dredged
maintenance material and proposed new work material, disposal is not
expected to have any long-term impact on water quality. The existing
Mobile ODMDS and proposed modified ODMDS are located sufficiently far
from shore (two to six miles) and fisheries resources to allow
temporary water quality disturbances caused by placement of dredged
material to be reduced to ambient conditions before reaching any
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 (40 CFR 228.5 (c)).
This criterion has been removed from the regulations and no longer
applies.
(4) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
The location, size, and configuration of the proposed modified
ODMDS provides long-term capacity, while also permitting effective site
management, site monitoring, and limiting environmental impacts to the
surrounding area to the greatest extent practicable.
Based on 25 years of projected new work and maintenance dredging,
and permitted dredged material disposal needs, it is estimated that the
proposed modified ODMDS should be approximately 24 nmi \2\ in size to
meet the anticipated long-term disposal needs of the area. This would
provide the proposed modified ODMDS with an estimated capacity of
approximately 260 million cubic yards, which is sufficient to manage
risk, account for future unknown disposal operations from private
entities, and provides a margin of navigation safety.
By adding approximately 19 nmi\2\ to the existing Mobile ODMDS, the
total area of the proposed modified Mobile ODMDS would be 23.8 nmi\2\.
An ODMDS of this size and capacity will provide a long-term ocean
disposal option for the Mobile Bay area.
When determining the size of the proposed site, the ability to
implement effective monitoring and surveillance programs was considered
to ensure that the environment of the site could be protected, and that
navigational safety would not be compromised by the mounding of dredged
material, which could result in adverse wave conditions. A SMMP is
being developed and will be implemented to determine if disposal at the
site is significantly affecting adjacent areas and to detect the
presence of adverse effects. At a minimum, the monitoring program will
consist of bathymetric surveys, sediment grain size analysis, chemical
analysis of constituents of concern in the sediments, and a health
assessment of the benthic community.
(5) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
Locating the disposal site near the continental shelf is not
feasible and would be cost prohibitive. Transporting material to and
performing long-term monitoring of a site located off the continental
shelf is not economically or operationally feasible.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance from Coast (40 CFR 228.6(a)(1)).
The proposed modified ODMDS is in the Gulf of Mexico, between two
and six miles offshore of Dauphin Island, Alabama. Water depths range
from -34 to -57 feet (10.4 to 17.4 meters) with an overall average
depth of -45 feet (13.7 meters). Sediments consist of sands to clays,
with various mixtures of sand, silts, and clays. Most areas in the
proposed modified ODMDS have a higher percentage of silt/clay than
sand. There tends to be slightly more fine material in the northern
portion of the site, and more fine sand on the southern portion of the
proposed modified ODMDS. There is a shallower mound (approximately -18
feet MLLW) located in the southeastern portion of the site, where
material has historically been placed for disposal. There are numerous
oil and gas wells located throughout the proposed expansion area. The
September 2018 DEA contains a map of the proposed ODMDS modification.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
The proposed modified ODMDS has been selected to avoid the presence
of any exclusive breeding, spawning, nursery, feeding, or passage areas
for adult or juvenile phases of living resources.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
The center of the proposed modified ODMDS is several miles from any
beaches or amenity areas. No significant impacts to beaches or amenity
areas associated with the existing Mobile ODMDS have been detected.
(4) Types and Quantities of Wastes Proposed to be Disposed of, and
Proposed Methods of Release, including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4)).
Only suitable dredged material that meets the EPA Ocean Dumping
Criteria in 40 CFR 220-229 and receives a permit or is otherwise
authorized for dumping by USACE will be disposed in the proposed
modified ODMDS. Dredged materials dumped in this area will be primarily
silts and clays with some sands that originate from the Federal Mobile
Harbor navigation project. Average yearly disposal of dredged material
into the proposed modified ODMDS is expected to be approximately 2.9
million cubic yards of maintenance and new work dredged material.
Hopper dredge, barge, and scow combinations are the usual vehicles of
transport for the dredged material, resulting in release of dredged
material closer to the bottom of the site. None of the material is
packaged in any manner.
Under section 103 of the MPRSA, USACE is the Federal agency that
decides whether to issue a permit authorizing the ocean disposal of
dredged materials. In the case of Federal navigation projects involving
ocean
[[Page 29831]]
disposal of dredged materials, USACE is subject to MPRSA, but does not
require a USACE permit. USACE relies on EPA's ocean dumping criteria
when evaluating permit requests for (and implementing Federal projects
involving) the transportation of dredged material for the purpose of
dumping it into ocean waters. MPRSA permits and Federal projects
involving ocean dumping of dredged material are subject to EPA review
and concurrence. EPA may concur with or without conditions or decline
to concur on the permit, i.e. non-concur. If EPA concurs with
conditions, the final permit must include those conditions. If EPA
declines to concur (non-concurs) on an ocean dumping permit for dredged
material, the USACE cannot issue the permit.
(5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
The EPA expects monitoring and surveillance at the proposed
modified ODMDS to be feasible and readily performed from ocean or
regional class research vessels. The entire area of the proposed
modified ODMDS has been surveyed and sampled in 2009 and 2017. The EPA
will monitor the site for physical, biological and chemical attributes
as well as for potential impacts. Bathymetric surveys will be conducted
routinely, and benthic infauna and epibenthic organisms will be
monitored, as described in the SMMP for the site.
(6) Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, including Prevailing Current Direction and
Velocity, if any (40 CFR 228.6(a)(6)).
Current velocities are greatest at the water's surface due to wind
and wave action. Intermediate and bottom layer currents are driven by
thermohaline and tidal circulations. Currents measured at gauge
stations surrounding the ODMDS are predominantly to the west or
southwest on the order of 10-30 centimeters per second (cm/s).
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (Including Cumulative Effects) (40 CFR
228.6(a)(7)).
Previous disposal of dredged material in the existing Mobile ODMDS
has resulted in temporary increases in suspended sediment
concentrations during disposal operations, localized mounding within
the site, burial of benthic organisms within the site, slight changes
in the abundance and composition of benthic assemblages, and changes in
the sediment composition from sandy sediments to finer-grained silts.
Short-term, long-term, and cumulative effects of dredged material
disposal in the proposed modified ODMDS would be similar to those for
the existing Mobile 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 (40 CFR
228.6(a)(8)).
There will be minor, short-term interferences with commercial and
recreational boat traffic during the transport of dredged material to
the proposed modified ODMDS. There are several oil and gas extraction
platforms in both the proposed and existing Mobile ODMDS. The site has
not been identified as an area of special scientific importance. There
are no aquaculture areas near the site. There may be recreational
fishing in the area. The likelihood of direct interference with these
activities is low, provided there is close communication and
coordination among users of the ocean resources. There is one
artificial reef site located approximately a quarter mile south of the
proposed modified ODMDS. The SMMP for the proposed modified ODMDS
contains provisions for corrective measures if impacts to the
artificial reef related to dredged material disposal are identified.
Additionally, modification of the ODMDS will allow for disposal to
occur farther away from the artificial reef than the currently-sized
site allows.
(9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
Water quality of the existing site is typical of the Gulf of
Mexico. Water and sediment quality analyses conducted in the vicinity
of the proposed modified ODMDS and experience with past disposals in
the existing Mobile ODMDS have not identified any adverse water quality
impacts from ocean disposal of dredged material. The site supports
benthic and epibenthic fauna characteristic of the shallow Gulf of
Mexico and are widespread off of the Gulf coast.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a) (10)).
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the proposed modified ODMDS. Disposal of dredged material,
as well as monitoring, has been ongoing for the past 40 to 50 years.
Nuisance species have not been found. The dredged material to be
disposed of at the ODMDS is expected to be from similar locations to
those dredged previously, therefore it expected that any benthic
organisms transported to the site would be relatively similar in nature
to those already there.
(11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a) (11)).
A maritime investigation of this site was conducted in 1982 to
identify areas of high and low probability of submerged resources. Past
efforts showed the presence of magnetic anomalies that may be
indicative of potential resources. Until further analysis is conducted,
these anomalies should be avoided in the proposed modified Mobile
ODMDS.
The SMMP for the ODMDS contains measures to ensure that resources
identified in up-to-date maritime investigations are avoided and are
not adversely affected by dredged material disposal.
III. Environmental Statutory Review--National Environmental Policy Act
of 1969, as Amended (NEPA); Magnuson-Stevens Fisheries Conservation and
Management Act (MSA); Marine Mammal Protection Act (MMPA); Coastal Zone
Management Act (CZMA); Endangered Species Act, as Amended (ESA);
National Historic Preservation Act, as Amended (NHPA)
a. NEPA
The EPA's primary voluntary NEPA document for expanding the
existing Mobile ODMDS is the Draft Environmental Assessment for
Modification of the Mobile ODMDS, Mobile, Alabama, September 2018
(DEA), prepared by the EPA in cooperation with the USACE. Anyone
desiring a copy of the DEA may obtain one from the addresses given
above. This document was released for public review and comment on
September 26, 2018. The public comment period on the Draft
Environmental Assessment (DEA) closed on October 29, 2018.
The EPA received four comment letters on the DEA. There were three
main concerns expressed in those letters: (1) Potential movement of
disposed material impacting nearby artificial reefs; (2) consideration
of impacts to the giant manta ray, a newly listed threatened species;
and (3) the age of the existing cultural resource surveys. No
objections to the proposed modification of the Mobile ODMDS were
received. The EPA and USACE responded to all comments and they will be
provided in the Final Environmental Assessment (FEA) for this proposed
action. The DEA and its Appendices provide the threshold
[[Page 29832]]
environmental review for modification of the ODMDS. The information
from the DEA is used above, in the discussion of the ocean dumping
criteria, and can be provided upon written request, using the contact
information provided in this document.
The proposed action discussed in the DEA is the permanent
designation of a modified ODMDS offshore Mobile, Alabama. The purpose
of the proposed action is to provide an environmentally acceptable
option for the ocean disposal of dredged material. The need for the
proposed modified ODMDS is based on a demonstrated USACE need for ocean
disposal of dredged material from the Mobile Harbor Federal Navigation
Project, including the potential for deepening and widening portions of
the Project. The need for ocean disposal for these and other projects,
and the suitability of the material for ocean disposal, will be
determined on a case-by-case basis as part of the USACE process for
reviewing ocean disposal for private/Federal actions and a public
review process for its own actions to ocean dump dredged material from
Federal Projects. These permit/authorization evaluations will include
evaluation of disposal alternatives.
The DEA discusses the need for the proposed modified ODMDS and
examines ocean disposal site alternatives to the proposed actions. The
need for expanding the existing Mobile ODMDS is based on future
capacity modeling, historical dredging volumes, estimated dredging
volumes for proposed projects, and limited capacity of upland disposal
facilities in the area.
The following ocean disposal alternatives were considered in the
DEA:
No Action Alternative.
The No Action Alternative is defined as not modifying the size of
the existing Mobile ODMDS. Implementation of this alternative would not
address the need for an adequately sized ocean dumpsite to accommodate
Federal channel dredging projections, and/or any future private needs
for ocean disposal. The existing Mobile ODMDS is too small and only
provides disposal capacity for up to five years. It is not large enough
to meet the existing and projected disposal needs for proposed Federal
new work and O&M projects. As a result, the No Action Alternative does
not meet the proposed action's purpose and need. However, it was
evaluated in the DEA as a basis to compare the effects of the other
alternatives considered.
Alternative 2: Modification of the existing Mobile ODMDS to
encompass a larger area capable of meeting the capacity needs of the
next 25 years (Preferred Alternative).
Modification of the existing Mobile ODMDS to encompass a larger
area capable of meeting the capacity needs of the next 25 years
(approximately 25 nmi\2\) is the preferred alternative and considered
the most viable option. A detailed justification for this preferred
alternative is included in Section 1.3 Purpose and Need for the
Proposed Action in the DEA. The existing Mobile ODMDS is relatively
small and has a limited capacity of approximately five years if
continued use occurs. Modifying the existing Mobile ODMDS to increase
capacity for the next 25 years would sustain the disposal needs for the
federally authorized Mobile Harbor navigation project (including
proposed deepening and widening), along with providing a disposal
option for private interests. It is the most economic and
environmentally feasible option.
Alternative 3: Modification of the existing Mobile ODMDS to
encompass a much larger area capable of meeting the capacity needs of
the next 50 years (approximately 46 nmi\2\).
Modification of the existing Mobile ODMDS to encompass a much
larger area capable of meeting the capacity needs of the next 50 years
was considered as the originally preferable alternative for this
proposed modification. As such, the May 2010 Final Report: Mobile ODMDS
Designation Study, Mobile AL was conducted based upon this larger site.
Although designating the larger area as a modified ODMDS would provide
more than adequate site capacity, the overly large-sized ODMDS would
far exceed the actual projected need for a 25-year project life. With
the projections set forth in Section 1.3 Purpose and Need for the
Proposed Action of the DEA, a site more adequately sized was selected
as the preferred alternative (Alternative 2).
Alternative 4: Designation of a new site further from the areas
where the Federal navigational dredging will occur.
This alternative would involve designation of a new site further
south (away from shore) than the existing Mobile ODMDS. This new site
(referred to as the Mobile-South site) was previously considered by the
USACE in the mid-1980s under section 103 of the MPRSA. Under section
103 of the MPRSA, the USACE, in consultation with EPA, can select an
``alternative'' site for dredged material disposal for short-term use
in the cases where it is not feasible to use a designated ocean
disposal site. EPA must concur on use of ``alternative'' ocean sites
selected by USACE for the disposal of dredged material. Disposal at a
USACE-selected ``alternative'' site shall be limited to a period not
greater than five years unless the site is subsequently designated by
EPA pursuant to section 102 of the MPRSA. This site was never used for
the disposal of dredged material. Primary concerns with the use of the
Mobile South site in the 1980s were safety, logistics, and additional
cost. These concerns still exist today. The sailing path for a hopper
or scow from Mobile Harbor to the Mobile-South site would require
traversing through two different Safety Fairways, one in a parallel
direction and the other at a perpendicular angle to the Federal
channel. Due to large vessel passing restrictions in the Mobile Ship
Channel, typically there are at least 12 deep draft ships holding
position in the Safety Fairway awaiting their turn to enter Mobile
Harbor. Using the Mobile-South site would require constant coordination
and logistical planning given the high volume of daily loads going out
to the site, in addition to the added safety concerns when towing scows
on long lines in rough seas through numerous anchored deep draft
vessels.
The additional sail time added using the Mobile South site is
estimated to be approximately 25% to 30% greater, which, under the
current method of rental contracts, represents $2,000,000 to $2,500,000
per contract (or $4,000,000 to $5,000,000 annually). Therefore,
designation of a new site farther from shore was not proposed as a
preferred alternative.
b. MSA
The USACE, in conjunction with EPA, submitted an essential fish
habitat (EFH) assessment, pursuant to Section 305(b), 16 U.S.C.
1855(b)(2), of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C.
1801 to 1891d, to the National Marine Fisheries Service (NMFS) on
December 19, 2002. The original assessment considered the entire
Mobile-North (46 nmi\2\) site. The USACE determined that the
modification of the existing Mobile ODMDS will not significantly affect
managed species or EFH. In a letter dated January 17, 2003, NMFS
responded that no EFH conservation recommendations were required for
the proposed action. In an email dated March 17, 2016, USACE contacted
NMFS, inquiring if the current proposed project (approximately 24
nmi\2\ ODMDS) was still consistent with the initial consultation. NMFS
responded that they believed that no further consultation for the
project was
[[Page 29833]]
required. The EPA notified NMFS of the publication of the DEA by letter
on September 25, 2018 and received no further communication regarding
the proposed action.
c. CZMA
Pursuant to an Office of Water policy memorandum dated October 23,
1989, the EPA has evaluated the proposed site designations for
consistency with the State of Alabama's (the State) approved coastal
zone management program. On behalf of the EPA, the USACE, Mobile
District determined that the proposed action is consistent with the
Alabama Coastal Management Program to the maximum extent practicable.
Alabama Department of Environmental Management (ADEM) issued Coastal
Zone Consistency for the Mobile Harbor Federal Navigation Project on
March 9, 2017, which included the modification of the existing Mobile
ODMDS. The EPA notified the ADEM of the publication of the DEA by
public notice and by letter on September 25, 2018 and received no
further communication regarding the proposed action.
d. ESA
The ESA, as amended, 16 U.S.C. 1531 to 1544, requires Federal
agencies to consult with NMFS and the U.S. Fish and Wildlife Service
(USFWS) to ensure that any action authorized, funded, or carried out by
the Federal agency is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in the
destruction or adverse modification of any critical habitat. The EPA
assessed the potential effects of modifying the Mobile ODMDS on aquatic
and wildlife species and submitted the DEA to the NMFS and USFWS on
September 25, 2018. The EPA concluded that the proposed project would
not adversely affect any threatened or endangered species, nor would it
adversely modify any designated critical habitat. In a letter dated
October 8, 2018, the USFWS concurred with the EPA's determination that
the proposed action is not likely to adversely affect listed endangered
or threatened species under the jurisdiction of the USFWS. In an email
dated November 26, 2018, NMFS informed the EPA that a consultation for
the giant manta ray (Manta birostris) was needed. The EPA concluded
that the proposed action may affect but was not likely to adversely
affect the species, added that evaluation and determination to the EA,
and is working with NMFS to finalize the consultation. Consultation
with NMFS will be completed prior to final rule-making or any final
NEPA decision.
e. NHPA
The USACE and the EPA initiated consultation with the State of
Alabama's Historic Preservation Officer (SHPO) on September 25, 2018 to
address the NHPA, 16 U.S.C. 470 to 470a-2, which requires Federal
agencies to consider the effect of their actions on districts, sites,
buildings, structures, or objects, included in, or eligible for
inclusion in the National Register of Historic Places (NRHP). In a
letter dated October 13, 2018, the Alabama Historical Commission (AHC)
recommended more up to date maritime surveys in the proposed action
area. The EPA added additional management provisions intended to be
protective of potential cultural resources into the EA and SMMP,
including phased use of the proposed ODMDS to avoid areas previously
unimpacted by dredged material disposal, and is working with the AHC to
finalize NHPA consultation. Any requirements to protect cultural
resources will be concluded based upon additional consultation with the
SHPO and will be incorporated into project commitments prior to final
rulemaking or any final NEPA decision.
IV. Statutory and Executive Order Reviews
This rule proposes to modify the Mobile ODMDS pursuant to Section
102 of the MPRSA. This proposed action complies with applicable
executive orders and statutory provisions as follows:
a. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
b. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This proposed site designation,
does not require persons to obtain, maintain, retain, report, or
publicly disclose information to or for a Federal agency.
c. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires Federal
agencies to prepare a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities,
small entity is defined as: (1) A small business defined by the Small
Business Administration's size regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. The EPA determined that this proposed action
will not have a significant economic impact on small entities because
the proposed rule will only have the effect of regulating the location
of site to be used for the disposal of dredged material in ocean
waters. After considering the economic impacts of this proposed rule,
EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities.
d. Unfunded Mandates Reform Act
This proposed action contains no Federal mandates under the
provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of
1995, 2 U.S.C. 1531 to 1538, for State, local, or tribal governments or
the private sector. This action imposes no new enforceable duty on any
State, local or tribal governments or the private sector. Therefore,
this action is not subject to the requirements of sections 202 or 205
of the UMRA. This action is also not subject to the requirements of
section 203 of the UMRA because it contains no regulatory requirements
that might significantly or uniquely affect small government entities.
Those entities are already subject to existing permitting requirements
for the disposal of dredged material in ocean waters.
e. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this action. In the spirit of Executive Order 13132, and
consistent with the EPA policy to
[[Page 29834]]
promote communications between the EPA and State and local governments,
the EPA specifically solicited comments on this proposed action from
State and local officials.
f. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 because the modification of the
existing Mobile ODMDS will not have a direct effect on Indian Tribes,
on the relationship between the Federal government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes. Thus, Executive Order 13175 does
not apply to this action. The EPA specifically solicits additional
comments on this proposed action from tribal officials.
g. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under Section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed action is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks. The
proposed action concerns the modification of the existing Mobile ODMDS
and only has the effect of providing a designated location for ocean
disposal of dredged material pursuant to Section 102 (c) of the MPRSA.
However, the EPA welcomes comments on this proposed action related to
this Executive Order.
h. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211,
``Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355) because it is not a
``significant regulatory action'' as defined under Executive Order
12866. However, we welcome comments on this proposed action related to
this Executive Order.
i. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs the EPA to provide
Congress, through Office of Management and Budget, explanations when
the Agency decides not to use available and applicable voluntary
consensus standards. This proposed action includes environmental
monitoring and measurement as described in the EPA's proposed SMMP. The
EPA will not require the use of specific, prescribed analytic methods
for monitoring and managing the proposed modified ODMDS. The Agency
plans to allow the use of any method, whether it constitutes a
voluntary consensus standard or not, that meets the monitoring and
measurement criteria discussed in the SMMP. The EPA welcomes comments
on this aspect of the proposed rulemaking and, specifically, invites
the public to identify potentially-applicable voluntary consensus
standards and to explain why such standards should be used in this
proposed action.
j. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The EPA determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The EPA has assessed the overall protectiveness of
modifying the existing Mobile ODMDS 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. The
EPA welcomes comments on this proposed action related to this Executive
Order.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: June 7, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
For the reasons set out in the preamble, The EPA proposes to amend
chapter I, title 40 of the Code of Federal Register 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 revising paragraphs (h)(14) (i) through
(iii) and (vi) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(h) * * *
(14) * * *
(i) Location: Corner Coordinates (NAD 1983) 30[deg]13.0' N,
88[deg]08.8' W; 30[deg]09.6' N, 88[deg]04.8' W; 30[deg]08.5' N,
88[deg]05.8' W; 30[deg]08.5' N, 88[deg]12.8' W; 30[deg]12.4' N,
88[deg]12.8' W.
(ii) Size: Approximately 23.8 square nautical miles in size.
(iii) Depth: Ranges from approximately 34 to 57 feet (10.4 to 17.4
meters).
* * * * *
(vi) Restrictions: (A) Disposal shall be limited to dredged
material from the Mobile, Alabama area;
(B) Disposal shall be limited to dredged material determined to be
suitable for ocean disposal according to 40 CFR 220-228;
(C) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(D) Monitoring, as specified in the currently-approved SMMP, is
required.
* * * * *
[FR Doc. 2019-13396 Filed 6-24-19; 8:45 am]
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