[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Rules and Regulations]
[Pages 36681-36684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09694]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R10-OW-2024-0123; FRL-11819-01-R10]
Ocean Dumping; Withdrawal of Designated Disposal Sites; Nome,
Alaska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to withdraw from EPA regulation and management two
designated ocean dredged material disposal sites, the Nome East and
Nome West Sites (Sites), located near Nome, Alaska, pursuant to the
Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended.
The EPA is taking this action because the United States Army Corps of
Engineers (USACE) has not used the Sites for disposal of dredged
material since 2009, has no plans to use the Sites for any future
disposal of dredged material, and the Sites are no longer suitable for
USACE's needs. This action will withdraw these sites from the
regulations.
DATES: This rule is effective on August 1, 2024 without further notice
unless the EPA receives adverse comment by June 3, 2024. If the EPA
receives adverse comment, the Agency will publish a timely withdrawal
in the Federal Register informing the public that the rule will not
take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OW-2024-0123; FRL-11819-01-R10, at https://www.regulations.gov. Follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. The EPA may
publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the https://www.regulations.gov/ index. Although listed in the 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 only in hard copy. Publicly available docket
materials are available either electronically in https://www.regulations.gov/ or in hard copy at the EPA Region 10 Library, 1200
Sixth Avenue Seattle, Washington 98101. The EPA Region 10 Library is
open from 9 a.m. to noon, and 1:00 to 4:00 p.m. Monday through Friday,
excluding Federal holidays. The EPA Region 10 Library telephone number
is (206) 553-1289.
FOR FURTHER INFORMATION CONTACT: Betsy McCracken, Water Division, U.S.
Environmental Protection Agency, Region 10, Alaska Operations Office,
222 W 7th Avenue, #19, Anchorage, AK 99513; (907) 271-1206,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Why is the EPA using a direct final rule?
The EPA is publishing this rule without a prior proposed rulemaking
because we view this as a noncontroversial action and anticipate no
adverse comment. In 1989, the EPA designated the Sites for the disposal
of dredged material removed from the Nome Channel and harbor areas (54
FR 23481 June 1, 1989). The Sites have not been used since 2009 because
the USACE has instead placed dredged material from the Nome Channel and
harbor area onshore for the beneficial use of beach nourishment. The
USACE intends to continue to place such dredged material onshore for
the
[[Page 36682]]
beneficial use of beach nourishment. Placement of dredged material
onshore for the beneficial use of beach nourishment is not affected by
this withdrawal and will continue to be available for the disposal of
suitable dredged material. The ability of the USACE, the Port of Nome,
and other interested parties to find suitable dredged material disposal
options will not be changed by this action. Environmental assessments
conducted by the USACE indicates that there will be no unacceptable
adverse impacts to the marine environment once the EPA relinquishes
management of the Sites. Therefore, the EPA is now taking the
administrative action of withdrawing the Sites from regulation and
relinquishing future management of the Sites.
II. Does this action apply to me?
In 1989, the EPA designated the Sites to be used for dredged
material from the Nome channel and harbor area. The USACE is most
affected by this action because it had used the Sites for disposal of
Nome channel and harbor area operations and maintenance (O&M) dredged
material. However, since 2009, the USACE has placed dredged material
from Nome channel and harbor O&M dredging onshore for the beneficial
use of beach nourishment. The USACE intends to continue to place such
dredged material onshore for the beneficial use of beach nourishment.
Placement of dredged material onshore for the beneficial use of beach
nourishment is not affected by this withdrawal and will continue to be
available for the disposal of suitable dredged material. For any
questions regarding the applicability of this action to a particular
person or entity, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
III. What is the legal authority of this final rule?
Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1402(c),
provides that the Administrator of the EPA may, in a manner consistent
with established criteria, designate sites for ocean dumping. 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 withdrawal is made pursuant to that
authority.
The EPA Ocean Dumping Regulations provide that modifications in
disposal site use that involve withdrawal of designated disposal sites
from use or permanent changes in the total specified quantities or
types of wastes permitted to be discharged to a specific disposal site
will be made through promulgation of an amendment to the disposal site
designation set forth in 40 CFR part 228 and will be based on the
results of the analyses of impact described in 40 CFR 228.10 or upon
changed circumstances concerning use of the site (40 CFR 228.11(a)).
This site withdrawal is made in accordance with 40 CFR 228.11(a) based
upon changed circumstances concerning use of the Sites.
IV. Background
A. History of Disposal Sites Near Nome, Alaska
The USACE began to dispose of dredged material offshore of Nome,
Alaska around 1923. The disposal of dredged material offshore was
necessary to keep navigation open to the Snake River and the City of
Nome from Norton Sound. On January 11, 1977, the EPA published a list
of ``Approved and Final Ocean Dumping Sites'' that established the Nome
East and Nome West Sites as interim sites (42 FR 2461, January 11,
1977) The interim Sites were used by the USACE for disposal of dredged
material as part of harbor maintenance. The EPA designated the Sites as
final sites on June 1, 1989 (54 FR 23481).
The Nome East and Nome West Sites extend 1.75 nautical miles (2
statute miles) offshore of the coast east of the entrance to the Port
of Nome (Please see map of Nome West and Nome East disposal Sites in
the docket for this action). The Nome East Site covers an area of
approximately 0.49 square miles (0.37 square nautical miles) and the
Nome West Site covers an area of approximately 0.40 square miles (0.30
square nautical miles). Water depths at the Nome West Site ranges from
1-11 meters mean lower low water (MLLW). Water depths at the Nome East
Site range from 1-12 meters MLLW. Prior to the harbor expansion, the
Sites were situated in an open, dynamic ocean environment. The seafloor
is characterized as relatively uniform and featureless with highly
active shifting sands grading to shifting silts as it slopes along the
southern boundary of the Sites into deeper water.
The Sites are trapezoidal with the following corner coordinates
based upon the North American Datum of 1927:
Nome East Site:
64[deg]29'54'' N, 165[deg]24'41'' W
64[deg]29'45'' N, 165[deg]23'27'' W
64[deg]28'57'' N, 165[deg]23'29'' W
64[deg]29'07'' N, 165[deg]24'25'' W
Nome West Site:
64[deg]30'04'' N, 165[deg]25'52'' W
64[deg]29'18'' N, 165[deg]26'04'' W
64[deg]29'13'' N, 165[deg]25'22'' W
64[deg]29'54'' N, 165[deg]24'45'' W
Disposal at the Nome East Site was limited to dredged material from
Nome, Alaska, and adjacent areas. Disposal at the Nome West Site was
also limited to material dredged from Nome, Alaska, and adjacent areas
with preference given to placement of materials in the inner third of
the Site to compliment littoral drift patterns and prevent significant
build-up or erosion of sediments. Coordination with the City of Nome
prior to dredging was required for use of both Sites.
The Sites were used routinely for disposal of dredged material from
USACE O&M dredging until the USACE opted to alter the location of the
Nome harbor entrance. In 2005, the USACE began major adjustments to the
harbor including re-routing the entrance to the Snake River. The old
entrance was filled in and a 3,025-foot breakwater was added to the
existing causeway along with a 270-foot spur. The Nome City dock was
expanded, and the new harbor entrance was widened to 500 feet. As part
of the harbor entrance project, the USACE also changed its method for
managing dredged material. In 2009, the USACE used the dredged material
for onshore placement east of the breakwater for beach nourishment.
These major changes spatially overlapped with a portion of the Nome
West Site, reducing the availability of the Site to receive dredged
material while also altering the need for the use of the Nome East
Site.
B. Relevant Recent Events
In 2020, the USACE released an Environmental Assessment and Finding
of No Significant Impact (FONSI) for modification to the entrance to
the Port of Nome.\1\ In the 2019 FONSI, the USACE stated that they
would continue to place dredged material onshore for beach nourishment,
which has contributed to widening of the beach in front of the Nome
seawall. The USACE does not plan to dispose of dredged material in the
EPA-designated Nome East Site or Nome West Site. Based on the FONSI and
communication with the USACE (email from Mr. Matthew Ferguson, October
31, 2023), the USACE does not use the Sites because they are no longer
suitable for its needs.
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\1\ US Army Corps of Engineers. March 2020. Integrated
Feasibility Report and Final Environmental Assessment. Port of Nome
Modification Feasibility Study Nome, Alaska.
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V. Final Action
This action is an administrative procedure to formally remove the
Nome
[[Page 36683]]
East and Nome West Sites from regulation (40 CFR 228.15(n)(12) and (13)
and EPA management. The withdrawal of the Sites is necessary to remove
the oversight of these Sites from EPA management. The USACE has not
used the Sites for disposal of dredged material since 2009 and has no
foreseeable need to use the Sites as they are no longer suitable.
The two Sites proposed for withdrawal are trapezoidal with the
following corner coordinates based upon the North American Datum of
1927:
Nome East Site:
64[deg]29'54'' N, 165[deg]24'41'' W
64[deg]29'45'' N, 165[deg]23'27'' W
64[deg]28'57'' N, 165[deg]23'29'' W
64[deg]29'07'' N, 165[deg]24'25'' W
Nome West Site:
64[deg]30'04'' N, 165[deg]25'52'' W
64[deg]29'18'' N, 165[deg]26'04'' W
64[deg]29'13'' N, 165[deg]25'22'' W
64[deg]29'54'' N, 165[deg]24'45'' W
If finalized, the Sites will not exist and will not be available
for the disposal of dredged material under the MPRSA from any person or
for any purpose. The USACE and EPA will coordinate, consistent with the
MPRSA and EPA's Ocean Dumping regulations, should the USACE decide in
the future that ocean disposal of dredged material is needed for
dredged material from Nome, Alaska, and/or adjacent areas.
VI. Environmental Statutory Review
A. National Environmental Policy Act of 1969
Section 102 of the National Environmental Policy Act of 1969
(NEPA), as amended, (42 U.S.C. 4321) requires Federal agencies to
prepare an Environmental Impact Statement for major Federal actions
significantly affecting the quality of the human environment. NEPA does
not apply to this action because the courts have exempted the EPA's
actions under the MPRSA from the procedural requirements of NEPA
through the functional equivalence doctrine. The EPA has, by policy,
determined that the preparation of NEPA documents for certain EPA
regulatory actions, including actions under the MPRSA, may be
appropriate. The EPA has determined that no environmental review
document is necessary for withdrawal of the Nome East and Nome West
Sites.
B. Coastal Zone Management Act
The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451
to 1465, requires Federal agencies to determine whether their actions
will be consistent to the maximum extent practicable with the
enforceable policies of approved state programs. By operation of Alaska
State law, the federally approved Alaska Coastal Management Program
expired on July 1, 2011, resulting in a withdrawal from participation
in the CZMA's National Coastal Management Program. The CZMA Federal
consistency provision, Section 307, no longer applies in Alaska.
C. National Historic Preservation Act
The National Historic Preservation Act (NHPA), as amended, 16
U.S.C. 470 to 470a-2, requires Federal agencies to account for the
effect of their actions on districts, sites, buildings, structures, or
objects, included in, or eligible for inclusion in the National
Register. Withdrawal of the Sites will not affect any historic
properties.
VII. Statutory and Executive Order Review
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 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 Small Business Administration's size
regulations at 13 CFR part 121; (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 small
entities as they were formally used only by the USACE for dredged
material removed from the Nome channel and harbor area. The USACE has
not used the Sites since 2009 and has no foreseeable need to use the
Sites as they are no longer suitable.
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandates as described in
the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does
not significantly affect small governments. The action imposes no new
enforceable duty on any state, local, or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
This 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.
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 withdrawal of the Sites 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. Although
Executive Order 13175 does not apply to this action, the EPA provided
electronic notification of the proposed withdrawal, including a Fact
Sheet about the Sites, to the Nome Eskimo Community and the Bering
Straits Native Corporation in the development of this action. EPA
received no comments as a result of the electronic notification.
[[Page 36684]]
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to Executive Order 13045 because it is
not ``economically significant'' as defined in Executive Order 12866
and does not concern an environmental health or safety risk that the
EPA believes may disproportionately affect children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a ``significant regulatory action'' under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rule does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
Executive Order 12898 (59 FR 7629; February 16, 1994) 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 communities with environmental justice concerns.
Executive Order 14096 (88 FR 25251, April 21, 2023) supplements the
foundational efforts of Executive Order 12898 to address environmental
justice.
The EPA recognizes that the burdens of environmental pollution and
climate change often fall disproportionately on communities with
environmental justice concerns. Climate change will exacerbate the
existing risks faced by communities with environmental justice
concerns. However, the EPA does not believe that this action will have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629;
February 16, 1994).
K. Congressional Review Act
This action is subject to the Congressional Review Act. The EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. A ``major rule'' cannot take
effect until 60 days after it is published in the Federal Register.
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
rule will be effective on August 1, 2024 unless the EPA receives
adverse comment.
Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
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: April 25, 2024.
Casey Sixkiller,
Regional Administrator, Region 10.
For the reasons set out in the preamble, the EPA amends 40 CFR part
228 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.
Section 228.15 [Amended]
0
2. Section 228.15 is amended by removing and reserving paragraphs
(n)(12) and (13).
[FR Doc. 2024-09694 Filed 5-2-24; 8:45 am]
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