[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Rules and Regulations]
[Pages 35564-35566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11029]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2019-0592; FRL-10009-39-Region 4]


Ocean Dumping: Cancellation of Final Designation for an Ocean 
Dredged Material Disposal Site

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) cancels the final 
designation of the original Wilmington, North Carolina Ocean Dredged 
Material Disposal Site (ODMDS), referred to as the 1987 Wilmington 
ODMDS, pursuant to the Marine Protection, Research and Sanctuaries Act 
(MPRSA), as amended. The 1987 Wilmington ODMDS, which was designated in 
1987, is in the Atlantic Ocean offshore Wilmington, North Carolina. 
This action is being taken because the 1987 Wilmington ODMDS was 
previously replaced in 2002 by the existing New Wilmington ODMDS and is 
no longer needed. In addition, this action changes the name of New 
Wilmington ODMDS to the Wilmington, North Carolina ODMDS.

DATES: This rule is effective July 13, 2020.

ADDRESSES: Docket: All documents in the Docket are listed in the 
www.regulations.gov index, some information may not be publicly 
available, e.g., confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available or 
in hard copy at the EPA Region 4 Office, 61 Forsyth Street SW, Atlanta, 
Georgia 30303. The file will be made available for public inspection in 
the Region 4 library between the hours of 9:00 a.m. and 4:30 p.m. 
weekdays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section below to make an appointment. If possible, please make 
your 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.

FOR FURTHER INFORMATION CONTACT: Gary W. Collins, U.S. Environmental 
Protection Agency, Region 4, Water Division, Oceans and Estuarine 
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone 
number: (404) 562-9395; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval to dispose of dredged material into 
ocean waters pursuant to the MPRSA (33 U.S.C. 1401 et seq.), 33 U.S.C. 
1401 to 1445. The EPA's action would be relevant to persons, including 
organizations, and government bodies seeking to dispose of dredged 
material in ocean waters offshore of Wilmington, North Carolina. 
Currently, the U.S. Army Corps of Engineers (USACE) would be most 
affected by this action. Potentially affected categories and persons 
include:

------------------------------------------------------------------------
                                      Examples of potentially regulated
             Category                              persons
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Federal Government................  U.S. Army Corps of Engineers Civil
                                     Works projects, U.S. Navy 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.
------------------------------------------------------------------------

    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

    Section 102(c) of the MPRSA, 33 U.S.C. 1412(c), gives the 
Administrator of the EPA authority to designate sites where ocean 
disposal may be permitted. On October 1, 1986, the Administrator 
delegated the authority to designate ocean disposal sites to the 
Regional Administrator of the Region in which the sites are located. 
This cancellation is being made pursuant to that authority.
    The EPA Ocean Dumping Regulations promulgated under MPRSA at 40 CFR 
228.11, state that modifications in disposal site use which involve 
withdrawal of disposal sites from use will be made by promulgation 
pursuant to 40 CFR part 228. This site cancellation is being published 
as final rulemaking in accordance with 40 CFR 228.11(a) of the Ocean 
Dumping Regulations, which permits the withdrawal of designated 
disposal sites from use based upon changed circumstances concerning use 
of the site.

III. Action

    The cancellation of the designation of the ODMDS, which was 
designated offshore Wilmington, North Carolina, in 1987 at 40 CFR 
228.15(h)(2), is needed as a housekeeping measure. This 1987 Wilmington 
ODMDS is no longer a suitable disposal option and has no foreseeable 
need. The 1987 Wilmington ODMDS was replaced by the larger New 
Wilmington ODMDS, which was designated in 2002 at 40 CFR 228.15(h)(20), 
due to changes in alignment of the Federal navigation channel, which 
now cuts through the 1987 ODMDS, and for other applicable reasons. In 
this action, the EPA also changes the name of the New Wilmington ODMDS 
to the Wilmington, North Carolina ODMDS.
    On November 6, 2019, the EPA issued a draft rule for public review 
and comment in the Federal Register [84 FR 59744 (Nov. 6, 2019)] which 
proposed the cancelation of the designation of the 1987 Wilmington 
ODMDS and renaming the New Wilmington ODMDS to the Wilmington, North 
Carolina ODMDS. Four comments were received on the proposed rule. Of 
the four comments, two were not related to this action and do not need 
responses. Of the two remaining comments, one stated that ODMDS 
designations seem to trend toward a pattern of moving further and 
further offshore which the individual attributes to improper long-term 
planning by the EPA. The second comment stated that ``[s]ome evidence 
showed that shrimpers have complained that wood debris attributed to 
dredged

[[Page 35565]]

materials placed within the [1987 Wilmington ODMDS] interfere with 
shrimping.''
    Regarding the issue of long-term planning, the EPA historically 
designates sites that are environmentally suitable, minimizes the haul 
distance and associated costs, and maximizes the feasibility and ease 
for monitoring while considering the known longer-term needs of 
federally authorized projects. With the recent improvements to the 
Panama Canal, nearly every port in the southeastern U.S. has proceeded 
with plans to deepen and widen navigation channels for federally 
authorized projects, as well as all the associated turning basins and 
terminal berthing areas. Prudent use of the Agency's resources does not 
allow for planning beyond the known needs of the major site users at 
any given time and thus the site designated in 1987 was not designated 
with adequate capacity to meet the current need.
    The EPA understands that the comment regarding wood debris in 
dredged material and its interference with shrimping is referencing 
historical events that occurred at shrimping grounds that lie offshore 
of Frying Pan Shoals. In 1987-1988, shrimp fishermen operating in areas 
outside the 1987 Wilmington ODMDS had reported fouling and tearing of 
their nets with roots, tree limbs, and other natural origin wood 
debris. The fishermen attributed the wood debris to ``short dumped'' 
(i.e., outside the disposal area) ocean disposal of dredged material 
from the ``river'' reaches of the Wilmington Harbor navigation channel 
as well as reaches of the Military Ocean Terminal Sunny Point (MOTSU). 
To remedy this, the dredging contractor at the time conducted a cleanup 
of the impacted areas using heavy-duty scallop-style nets for 20 days 
(approximately 228 tows were made). In an effort to maximize the 
distance from the disposal location to the shrimp fishing area, between 
1988 and 2002, dredged materials from river sources were placed in the 
most seaward (southern) half of the 1987 Wilmington ODMDS. However, in 
1996, fishermen complaints regarding wood debris in areas near the 1987 
Wilmington ODMDS were again received. In July 1996, the USACE 
Wilmington District employed two trawlers to drag heavy-duty nets in 
the shrimp-trawling areas in order to assess the wood debris problem. 
This USACE determined that wood debris was present in the traditional 
shrimping bottoms in sufficient amounts to interfere with shrimping but 
the USACE was unable to determine the source of the wood debris. The 
contention that the dredged material placed in the 1987 Wilmington 
ODMDS was a source of the wood debris impacting shrimpers' towing 
bottoms was neither confirmed nor denied. Extreme weather events, 
including hurricanes, periodically pass over the 1987 Wilmington ODMDS 
and surrounding areas and may naturally redistribute debris on the sea 
floor, regardless of their source. The 1987 Wilmington ODMDS, currently 
inactive, has not received dredged material since 2002. There are no 
plans to remove any wood debris or other material from the 1987 
Wilmington ODMDS; rather, the 1987 Wilmington ODMDS footprint will be 
allowed to continue its transition back to a more natural state as it 
has been for the past 18 years. Since its designation in 2002, all 
dredged materials originating from Wilmington Harbor and MOTSU have 
been placed in the New Wilmington ODMDS. The New Wilmington ODMDS is 
located further seaward (south) than the 1987 Wilmington ODMDS, and was 
specifically sited to keep disposal operations and any wood debris that 
might be associated with the dredged material as far as possible from 
these shrimping grounds while maintaining the economic feasibility of 
federally authorized projects that require the transport and disposal 
of dredged material.

IV. Statutory and Executive Order Reviews

    This 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 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 action does not require 
persons to obtain, maintain, retain, report, or publicly disclose 
information to or for a Federal agency.

c. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 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, 5 U.S.C. 551 et seq., 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 U.S. 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. 
After considering the economic impacts of this rule, the EPA certifies 
that this action will not have a significant economic impact on a 
substantial number of small entities. This rule will not impose any 
requirements on small entities.

d. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531 et seq., 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.

e. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on States, on the relationship between the 
Federal Government and 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. The EPA specifically solicited comment on this action from 
State and local officials.

[[Page 35566]]

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

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the action 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 solicited 
additional comments on this action from tribal officials.

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

    The EPA interprets Executive Order 13045 (62 FR 19885) 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 action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

h. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355) 
because it is not a ``significant regulatory action'' as defined under 
Executive Order 12866.

i. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995 
(NTTAA), Public Law 104-113 (15 U.S.C. 3701 et seq.), 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 the Office of Management and Budget, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards. This action does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.

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 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. This action is only cancelling the designation of an ODMDS 
which is no longer viable.

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. 1412.

Mary Walker,
Regional Administrator, Region 4.

    For the reasons set out in the preamble, The EPA amends 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 removing and reserving paragraph (h)(2) 
and revising paragraph (h)(20) introductory text to read as follows:


Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (20) Wilmington, North Carolina; Ocean Dredged Material Disposal 
Site.
* * * * *

[FR Doc. 2020-11029 Filed 6-10-20; 8:45 am]
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