[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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