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Ocean Dumping: Designation of Site
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 18, 2000 (Volume 65, Number 97)]
[Rules and Regulations]
[Page 31492-31498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my00-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-6702-1]
Ocean Dumping: Designation of Site
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) designates an
existing dredged material disposal site located in the Gulf of Mexico
at the mouth of Atchafalaya Bay for the continued disposal of dredged
material removed from the bar channel of the Atchafalaya River and
Bayous Chene, Boeuf, and Black, Louisiana. This action is necessary to
provide an acceptable ocean dumping site for current and future
disposal of this material. This final site designation is for an
indefinite period and is subject to monitoring to insure that
unacceptable adverse environmental impacts do not occur.
DATES: This rule is effective on June 19, 2000.
ADDRESSES: Monica Young (6WQ-EM), EPA Region 6, 1445 Ross Avenue,
Dallas, TX 75202-2733.
Information supporting this designation is available for review at
the following location: EPA, Region 6, 1445 Ross Ave, 9th floor file
room, Dallas, TX 75202.
FOR FURTHER INFORMATION CONTACT: Monica Young 214-665-7349.
SUPPLEMENTARY INFORMATION:
Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act of 1972 (MPRSA), as amended, (33 U.S.C. 1401 et seq.), gives the
Administrator of EPA the authority to designate sites where ocean
dumping may be permitted. On December 23, 1986, the Administrator
delegated the authority to designate ocean dumping sites to the
Regional Administrator of the Region in which the site is located. This
site designation is being made pursuant to that authority.
EPA's Ocean Dumping Regulations (40 CFR Chapter I, Subchapter H,
Section 228.4) state that ocean dumping sites will be designated by
promulgation in Part 228. A list of ``Approved Interim and Final Ocean
Dumping Sites'' was published on January 11, 1977 (42 FR 2461 et seq.).
That list established the Atchafalaya River Bar Channel ocean dredged
material disposal site (ODMDS) on an interim basis.
The interim designation of the Atchafalaya River Bar Channel ODMDS
was extended indefinitely in January 1980. However, Section 506 of the
Water Resources Development Act (WRDA) of 1992, amended MPRSA such that
beginning January 1, 1997, open water offshore disposal could only be
into ODMDSs either designated by EPA under Sec. 102(c) of the Act or
selected by the Corps of Engineers (COE) under Sec. 103(b) as an
alternative site. Since EPA had not ruled on final designation by
January 1, 1997, the Atchafalaya River Bar Channel ODMDS was selected
by the New Orleans District COE as a Sec. 103(b) alternative to
accommodate annual channel maintenance dredging beyond 1996.
Recognizing a five (5) year extension of the COE's Sec. 103(b)
selection allowed the continued use of the Atchafalaya River Bar
Channel ODMDS through the year 2006, EPA was to designate the
Atchafalaya River Bar Channel ODMDS site pursuant to Sec. 102(c) of
MPRSA, or to find that the site is inappropriate for final designation.
This site designation is being published as final rulemaking in
accordance with Sec. 228.4(e) of the Ocean Dumping Regulations, which
permits the designation of ocean disposal sites for dredged material.
Regulated Entities
Entities potentially regulated by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material in ocean waters at the Atchafalaya River Bar Channel ODMDS,
under the MPRSA, 33 U.S.C. 1401 et seq. The Rule would be primarily of
relevance to parties in the Morgan City area seeking permits from the
COE to transport dredged material for the purpose of disposal into
ocean waters at the Atchafalaya River Bar Channel ODMDS, as well as the
COE itself (when proposing to dispose of dredged material at the
ODMDS). Potentially regulated categories and entities seeking to use
the ODMDS and thus subject to this Rule include:
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Category Examples of regulated entities
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Federal Government........... U.S. Army Corps of Engineers Civil Works
Projects. Other Federal Agencies,
including the Department of Defense.
Industry and General Public.. Port Authorities. Marinas and Harbors.
Shipyards and Marine Repair Facilities.
Berth Owners.
State, local and tribal Governments owning and/or responsible for
governments. ports, harbors, and/or berths.
Government agencies requiring disposal
of dredged material associated with
public works projects.
------------------------------------------------------------------------
This table lists the types of entities that EPA is now aware could
potentially be regulated. EPA notes, however, that nothing in this
final ruling alters in any way, the jurisdiction of EPA, or the types
of entities regulated under the MPRSA. To determine if you or your
organization is potentially regulated by this action, you should
carefully consider whether you expect to propose ocean disposal of
dredged material, in accordance with the Purpose and Scope provisions
of 40 CFR 220.1, and if you wish to use the Atchafalaya River Bar
Channel ODMDS. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section. Since ODMDS use is
restricted to dredged material removed from the bar channel of the
Atchafalaya River, EPA anticipates that the COE will be the only user
of the ODMDS.
EIS Development
Section 102 (2)(c) of the National Environmental Policy Act of 1969
(NEPA), as amended (Pub. L. 91-190, 42 U.S.C. 4321 et seq.), requires
that
[[Page 31493]]
Federal agencies prepare Environmental Impact Statements (EISs) on
proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment. NEPA does not apply to
ODMDS designations, however EPA voluntarily prepared an EIS in
connection with this designation action.
EPA prepared a Draft EIS on the designation of the Atchafalaya
River Bar Channel ODMDS in November, 1983. Six comment letters were
received on the Draft EIS. Based on the comments received, EPA
determined that a Supplemental Draft EIS was appropriate to correct
information deficiencies and include more recent data in response to
the commenting agencies. EPA and the COE jointly prepared the
Supplemental Draft EIS, which was distributed to interested agencies,
environmental groups and individuals for review in December, 1990. Five
comments letters were received on the Supplemental Draft EIS. Responses
to these comments were included in EPA's Final EIS, which was completed
and distributed to interested agencies, environmental groups and
individuals in November, 1998. The 30-day comment period on EPA's Final
EIS closed on January 11, 1999.
Only one comment letter, from the State of Louisiana, Department of
Culture, Recreation and Tourism, Office of Cultural Development, was
received on the Final EIS. The Louisiana Office of Cultural Development
found the document to be thorough and well written, and concurred with
the evaluation that there would be no effect on significant cultural
resources, and as such, had no objections to the proposal.
EPA's NEPA review included coordination with the State of Louisiana
under requirements of the Coastal Zone Management Act. The State of
Louisiana concurred with EPA's determination that final designation of
the Atchafalaya River Bar Channel ODMDS is consistent, to the maximum
extent practicable, with the Louisiana Coastal Resources Program.
This final rulemaking document fills the same role as the Record of
Decision required under regulations promulgated by the Council on
Environmental Quality for agencies subject to NEPA.
Site Designation
EPA's proposal to designate the Atchafalaya River Bar Channel ODMDS
was published in the Federal Register on February 6, 1991 (pages 4777-
4781). The public comment period on this proposed rule closed on March
25, 1991. One comment letter was received on the proposed rule from the
U.S. Department of the Interior (DOI), Office of the Secretary, in
Washington, D.C. The DOI recommended: (1) That dredged material be used
for beneficial purposes (e.g., to rebuild eroded shoreline and increase
marsh habitats); (2) that the final rule include a requirement for
dredged material to be used to build bird islands and avoid shell
reefs, in consultation with the U.S. Fish and Wildlife Service and the
Louisiana Department of Wildlife and Fisheries; and (3) that the final
rule require, prior to each dredging event, an interagency evaluation
of the feasibility of using the dredged material to create marsh,
reduce shoreline erosion, or build bird nesting/roosting islands.
In response to DOI's comments on the proposed rule (and similar
comments received on the Supplemental Draft EIS), the Final EIS
evaluated these recommendations, and other reasonable, beneficial use
alternatives. EPA's action [i.e., site designation under Sec. 102(c) of
MPRSA] does not authorize the placement of dredged materials or require
interagency evaluation of beneficial use alternatives. However,
beneficial use alternatives and other options for the placement of
dredged material are evaluated through annual COE dredging conferences.
The Atchafalaya River Bar Channel ODMDS is located east of, and
parallel to, the Atchafalaya River bar channel and is approximately
18.5 miles long. The center of the ODMDS is approximately 16 miles from
the mouth of the Atchafalaya River. North Point of Point au Fer Island
is about 2 miles east of the northern end of the site. The average
water depth at the site is approximately 16 feet. Boundary coordinates
of the rectangular shaped site are as follows: 29E20'59.92"N, 91E
23'33.23"W; 29E20'43.94"N, 91E23'09.73"W; 29E08'15.46"N, 91E34'51.02"W;
and 29E07'59.43"N, 91E34'27.51"W.
Ocean Dumping Site Designation Criteria
Five general criteria are used in the selection and approval of
ocean disposal sites for continuing use. Sites are selected so as to
minimize interference with other marine activities, to keep any
temporary perturbations from the disposal from causing impacts outside
the disposal site, and to permit effective monitoring to detect any
adverse impacts at an early stage. Where feasible, locations off the
Continental Shelf are chosen. If at any time disposal operations at a
site cause unacceptable adverse impacts, further use of the site may be
terminated or limitations placed on the use of the site to reduce the
impacts to acceptable levels.
The five general criteria are given in 40 CFR 228.5 of the Ocean
Dumping Regulations. EPA has determined, based on the information and
analyses in the Draft EIS, Supplemental Draft EIS, and Final EIS, that
the site is acceptable under the five general criteria. The Continental
Shelf location is not feasible and no environmental benefit would be
obtained by selecting such a site. Historical use of the site has not
resulted in substantial adverse impacts to living resources of the
ocean or to other uses of the marine environment.
Section 228.6 of the Ocean Dumping Regulations lists eleven
specific factors to be used in evaluating a proposed disposal site to
assure that the general criteria are met. The characteristics of the
site are reviewed below in terms of these eleven specific factors.
1. Geographical position, depth of water, bottom topography, and
distance from coast (40 CFR 228.6(a)(1)).
Geographical position and average water depth are given above. The
Atchafalaya River Bar Channel ODMDS is located in the near shore area
of the Gulf of Mexico (i.e., to a depth of about 75 feet). The ODMDS
gently slopes from a depth of about 5 feet at its near shore end to
about 22 feet at its seaward end. Except for being located adjacent to
the dredged channel, the area occupied by the ODMDS is similar in depth
and bottom topography to the overall lower Atchafalaya River area.
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 northwestern Gulf of Mexico is a breeding, spawning, nursery,
and feeding area for shrimp, menhaden, and bottomfish. To complete
their life cycles, many of the species migrate seasonally between the
coastal estuaries and the Gulf. Because the timing varies by species,
some migration can occur at almost any time of the year. The ODMDS is
located in a region dominated by species that are estuary-related. The
ODMDS represents a small area (9.14 square miles) of the total range of
the white and brown shrimp and their related communities; however, the
nearby Atchafalaya River estuarine area is one of the region's major
nursery areas.
Disposal of material at the ODMDS would have negligible effects on
Federally listed endangered and threatened species. Endangered whale
species which may be found in the vicinity of the ODMDS are the sei,
fin, humpback, right, and sperm. However, occurrences of whales off
Louisiana are
[[Page 31494]]
considered rare, and because the animals generally inhabit waters far
deeper than those in the ODMDS, it is unlikely that disposal operations
would have any impact on whale species.
Three species of sea turtles (hawksbill, Kemp's ridley, and
leatherback) classified as endangered and two species of sea turtles
(green and loggerhead) classified as threatened could potentially
inhabit the ODMDS. Hopper dredging has been identified as a source of
mortality (incidental take) to sea turtles in inshore waters. However,
disposal of maintenance material dredged from the Atchafalaya River Bar
Channel is by hydraulic cutter head pipeline dredge, which has not been
identified as a source of sea turtle mortality.
3. Location in relation to beaches and other amenity areas (40 CFR
228.6(a)(3)).
The nearest point of land is North Point of Point au Fer Island,
about 2 miles from the northeast end of the ODMDS. While it may be
possible to observe the disposal plume, the plume is expected to
dissipate quickly after completion of the disposal operations. Except
for minor affects of these limited observations, there should be no
effects on the aesthetics of the area. There are no known recreational
parks, beaches, or other amenity areas in proximity to the ODMDS.
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)).
Material dredged from the upper one-third of the bar channel
generally is comprised of 26% sand, 30% silt, and 44% clay, and
material from the lower two-thirds of the bar channel generally is
comprised of 7% sand, 44% silt, and 49% clay. An estimated 9 to 11
million cubic yards of material is removed annually from the
Atchafalaya River Bar Channel using a hydraulic cutter head pipeline
dredge and released within the ODMDS as an un-cohesive slurry. Future
disposal operations will follow the past disposal pattern with respect
to types, quantities, and methods of release. Any material disposed of
at the site is required to comply with the criteria of the Ocean
Dumping Regulations. None of the material will be packaged in any way.
The COE will likely be the only user of the site.
5. Feasibility of surveillance and monitoring (40 CFR 228.6(a)(5)).
The ODMDS is shallow and close to shore, which facilitates
surveillance and monitoring of the site. Operational observations can
be made using shore-based radar, aircraft, ship riders, and day-use
boats. Monitoring would be facilitated by the database that has been
established for the ODMDS. A monitoring program has been developed by
EPA in cooperation with the COE for the ODMDS, as part of the
``Atchafalaya ODMDS Site Management Plan.''
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)).
Water currents in the vicinity of the ODMDS are very complex.
Although tides, loop current intrusions, and river flow may affect the
local currents, the currents are influenced predominantly by winds.
Thus, the direction and velocity of currents vary throughout the year.
Water currents in the area can reach velocities sufficient to
resuspend the disposed dredged material. The resuspended material would
be transported in the direction of the current causing the
resuspension. During these periods, constant mixing of the dredged
material and sediments originally in the area takes place. The mixed
dredged material and background sediments settle as the velocity
decreases, and become resuspended when some event again raises the
current velocity.
Sediment transport at the ODMDS is both to the northwest and to the
southeast. The prevailing northwest currents are relatively weak and
generally transport silt-sized and clay-sized particles. In the winter,
however, stronger currents to the southeast, which are driven by the
passage of cold-air outbreaks (northers), transport the latter particle
sizes plus sand-sized particles. Gale-force winds for a duration of 20
to 30 hours are common during the passage of one of the cold-air
outbreaks, which occur from 15 to 30 times each year.
7. Existence and effects of current and previous discharges dumping
in the area (including cumulative effects) (40 CFR 228.6(a)(7)).
Sediment physical and chemical characteristics are generally
similar within and adjacent to the ODMDS. Identified effects of dredged
material disposal on sediments within the ODMDS include a few
relatively high concentrations for sedimentary constituents (alpha
chlordane, some chlorinated biphenols, para-para-DDD, iron, aluminum,
perylene, zinc, oil, and grease). However, the area is influenced by
shallow water depths, frequent resuspension of bottom sediments by
winds and waves, and input of large quantities of fine sediments from
riverine sources. Furthermore, dredged materials released at the ODMDS
are similar to background sediments in the vicinity and are widely
distributed by natural processes after deposition. Since the effects of
disposal area temporary, there are no cumulative effects.
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)).
The ODMDS is outside the navigation channel and, thus, not in the
path of ocean-going vessels. Some smaller boats may pass over the site;
however, since any mounds are expected to be short-lived, there should
be no interference. All dredging and disposal operations are closely
coordinated among the dredging operators and the shipping interests to
avoid interference with ship traffic. Without dredging, the channel
would be impassible to most shipping.
There is periodic, short-term, interference with recreational
activities at the ODMDS during disposal operations. The plumes of
dredged material have a minor impact on targeted fish stocks,
temporarily affecting recreational fishing in the area. This
interference is temporary and restricted to the relatively small area
of the ODMDS being used for disposal at the particular time. Past
experience with use of the site for disposal of dredged material has
not indicated interference with oil and gas exploration or production.
No other types of mineral extraction are taking place either within the
site or in the general vicinity of the site.
The nearest oyster leases are located about 4 miles to the east of
the ODMDS, near Point au Fer. Because the transport of suspended
materials from the ODMDS is mainly parallel to the coastline, adverse
effects of disposal operations on these oyster beds should be minimal.
In addition, the oyster beds are naturally subjected to periodic
episodes of high, suspended-solid concentrations from the waters of the
Atchafalaya River. There have been no impacts to oyster leases from
past use, and no impact is expected to result from future use of the
ODMDS.
The Atchafalaya Delta Wildlife Management Area is located about 8
miles to the north of the ODMDS. Shell Keys National Wildlife Refuge
and Russell Sage--Marsh Island State Wildlife Refuge are located about
29 miles to the west of the ODMDS. There has been no impact to the
refuges from past use, and none is expected to result from future use
of the ODMDS.
Periodically, scientific studies are carried out in the area. Use
of the site
[[Page 31495]]
is not expected to interfere with any such studies. It is not expected
that use of the site for disposal of dredged material would interfere
with any other legitimate uses of the ocean.
9. The existing water quality and ecology of the site as determined
by available data or by trend assessment of baseline surveys (40 CFR
228.6(a)(9)).
The water quality and ecology of the ODMDS generally reflect that
of the near shore region off the Louisiana coast affected by discharges
from the Atchafalaya River. The variations in water quality depend on
the amount and mixing of freshwater runoff, which are highly variable.
In the summer, calm winds, freshwater input, and intrusions of
offshore waters may restrict vertical mixing in the near shore waters.
Under these conditions, bottom waters can be depleted of oxygen. This
hypoxic condition (dissolved-oxygen content of less than 2 ppm) may be
an annual phenomenon, but the event is patchy and ephemeral and has
been shown to affect shelf waters from the Mississippi Delta to the
upper Texas coast.
With the following exceptions, concentrations of trace metals in
waters from the Atchafalaya River Bar Channel were below detection
limits: concentrations of barium, iron, and manganese from the channel
sample were greater, by a factor of 4, 2, and 3, respectively. There
are no EPA marine acute or chronic criteria for these elements,
however, and copper was less than the detection limit.
None of the water-column parameters measured during site surveys
indicated that dredged material after disposal has a permanent or
measurable effect on water quality in the area of the ODMDS. Waters off
southeastern Louisiana are generally turbid because of shallow depths
and riverine influences, and the levels of most parameters in the ODMDS
appear to be typical of the region.
A site survey of macrofaunal distribution and abundance found 40
taxa, with very little difference in average taxa richness or overall
average abundance. The general pattern of percent taxa and abundance
group was approximately similar to those identified in other near-
coastal and estuarine waters of the northern Gulf of Mexico.
The ODMDS benthic assemblage is dominated by species that live for
about 1 year and undergo rapid population expansions. Results of site
surveys indicated that most macrofaunal species were distributed in
patches throughout the study area and several are considered
opportunistic. Endemic species have considerable ability to adapt to a
range of natural disturbances in their habitat. Thus, if dredged-
material disposal had affected the density of these organisms, these
effects could not be discerned.
Fish collected during site surveys are characteristic of the area.
Furthermore, relative numbers of dominant organisms collected, such as
large numbers of sciaenids (drums and croakers), are similar to results
of other baseline studies conducted in the area.
10. Potentiality for the development or recruitment of nuisance
species in the disposal site (40 CFR 228.6(a)(10)).
Past disposal of dredged material at the existing ODMDS has not
resulted in the development or recruitment of nuisance species.
Considering the similarity of the dredged material with the existing
sediments, it is expected that continued disposal of dredged material
will not result in the development or recruitment of such species.
11. Existence at or in close proximity to the site of any
significant natural or cultural features of historical importance (40
CFR 228.6(a)(11)).
Studies, which involved literature search and coordination with the
Louisiana State Historic Preservation Officer, did not demonstrate any
known features of historical importance within the ODMDS. However,
results from the literature review indicate shipwrecks may be found
near the Point Au Fer Shell Reef and at the mouth of the Atchafalaya
River. Hence, the northernmost portion of the ODMDS is considered to
have the greatest potential to contain submerged cultural resources.
Future dredging and disposal operations at the ODMDS will consider
the results of the submerged cultural resources survey. Plans and
specifications for dredging contracts would be reviewed by COE cultural
resources specialists to ensure that significant cultural resources are
not impacted by any proposed action. In addition, future disposal into
the ODMDS area will be reviewed by the COE in compliance of Section 106
of the National Historic Preservation Act of 1966 (as amended), Final
Rule for Operation and Maintenance Of Army Corps of Engineers Civil
Works Projects Involving the Discharge of Dredged Material Into Waters
of the U.S. or Ocean Waters (33 CFR parts 209, 335, 336, 337, and 338),
and requirements of the Louisiana SHPO.
Action
The action evaluated through this EPA rulemaking and completed
NEPA/EIS processes is designation under Sec. 102(c) of MPRSA of the
existing COE Sec. 103(b) alternative ODMDS for dredged material removed
from the Atchafalaya River Bar Channel. The purpose of the designation
is to provide an environmentally acceptable location for ocean disposal
of dredged materials removed from the Atchafalaya River Bar Channel.
The evaluative processes provide a thorough and objective evaluation of
reasonable alternatives, including no action, and the information
needed to evaluate the suitability of an ocean disposal area for final
site designation. EPA's final site designation is being conducted in
accordance with the MPRSA, the Ocean Dumping Regulations, and other
applicable Federal environmental legislation. Once designated, the
appropriateness of ocean disposal is determined on a case-by-case
basis.
EPA emphasizes that ocean disposal site designation does not
constitute or imply EPA Region VI's or the COE's approval of ocean
disposal of dredged material from any project. Before disposal of any
dredged material at the Atchafalaya River Bar Channel ODMDS may occur,
EPA Region VI and the COE must evaluate the proposed project according
to the Ocean Dumping Criteria (40 CFR part 227) adopted pursuant to the
MPRSA. EPA Region VI or the COE will not allow ocean disposal of
dredged material if either agency determines that the Ocean Dumping
Criteria are not met. In addition, the COE is required to evaluate all
proposed dredging projects associated with the Atchafalaya River in
accordance with the Coastal Zone Management Act, the Magnuson-Stevens
Fishery Conservation and Management Act, and the Endangered Species
Act.
Administrative Requirements
1. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the OMB a
description of the extent of EPA's prior consultation with
representatives of affected State, local, and tribal governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of
[[Page 31496]]
State, local, and tribal governments to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.
Today's final Rule does not create a mandate on State, local, or
tribal governments. As described elsewhere in this preamble, today's
final Rule would only have the effect of designating an existing ocean
disposal site pursuant to section 102(c) of MPRSA. This final Rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of Executive Order 12875 do not apply to
this Rule.
2. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the OMB, in a separately identified section
of the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.
Today's final Rule does not significantly or uniquely affect the
communities of Indian tribal governments. As described elsewhere in
this preamble, today's final Rule would only have the effect of
designating an existing ocean disposal site pursuant to section 102(c)
of MPRSA. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
3. Executive Order 12866
Under Executive Order 12866, (58 FR51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and other requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to lead to a rule that may:
(a) Have an annual effect on the economy of $100 million or
more, or adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(b) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency
(c) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principals set forth in
the Executive Order.
This final Rule should have minimal impact on permittees. As
described elsewhere in this preamble, today's final Rule would only
have the effect of designating an existing ocean disposal site pursuant
to section 102(c) of MPRSA. Consequently, EPA has determined that this
Rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866 and is therefore not subject to OMB review.
4. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
This final Rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not have any reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. As described elsewhere in this
preamble, today's final Rule would only have the effect of designating
an existing ocean disposal site pursuant to section 102(c) of MPRSA.
5. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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 the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is no required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the Agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft final rule with federalism
implications to OMB for review pursuant to Executive Order 12866, EPA
must include a certification from the agency's Federalism Official
stating that EPA has met the requirements of Executive Order 13132 in a
meaningful and timely manner.
This final rule will 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 the
various levels of government, as specified in Executive Order 13132
because it only has the effect of designating an existing ocean
disposal site and does not alter the relationship or the distribution
of power and responsibilities among the levels of government. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
[[Page 31497]]
6. Regulatory Flexibility Act, as Amended by the Small Businesses
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA) provides that whenever an
agency promulgates a final rule under 5 U.S.C. 553, the agency must
prepare a regulatory flexibility analysis (RFA) unless the head of the
agency certifies that the final Rule will not have a significant
economic impact on a substantial number of small entities (5 U.S.C. 604
and 605). Today's final Rule would only have the effect of designating
an existing ocean disposal site pursuant to section 102(c) of MPRSA.
Consequently, EPA's final Rule will not impose any additional economic
burden on small entities. For this reason, the Regional Administrator
certifies, pursuant to section 605(b) of the RFA, that the final Rule
will not have a significant economic impact on a substantial number of
small entities.
7. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to
minimize the reporting and record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by OMB. Since the final Rule
would not establish or modify any information or record-keeping
requirements, but only finalizes existing requirements, it is not
subject to the provisions of the Paperwork Reduction Act.
8. The Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. As described elsewhere in this
preamble, today's final Rule would only have the effect of designating
an existing ocean disposal site pursuant to section 102(c) of MPRSA.
Consequently, it imposes no new enforceable duty on any State, local,
or tribal governments or the private sector. Similarly, EPA has also
determined that this Rule contains no regulatory requirements that
might significantly or uniquely affect small government entities. Thus,
the requirements of section 203 of the UMRA do not apply to this Rule.
9. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995
(NTTAA), Public Law No. 104-113, section 12 (d) (15 U.S.C. 272 note)
directs 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 standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This Rule does
not involve technical standards. Therefore, EPA did not consider the
use of any voluntary consensus standards.
10. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. 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 June 19, 2000.
11. Endangered Species Act
Pursuant to section 7(a) of the Endangered Species Act, federal
agencies must insure that their actions are unlikely to jeopardize the
continued existence of listed threatened or endangered species or
result in adverse modification or destruction of designated critical
habitat. Continuing to dispose of dredged material at the designated
site will not materially change the status quo and there is no
designated critical habitat in the area. Moreover, the COE will
continue to consult with the National Marine Fisheries Service (NMFS)
on its own project-specific use of the site and on any project for
which it proposes to issue a permit authorizing disposal of dredged
material at the site. EPA accordingly found today's designation action
was unlikely to adversely affect any listed species or critical
habitat. NMFS concurred in that finding by letter dated September 9,
1999.
12. Magnuson-Stevens Fishery Conservation and Management Act
Under section 305(b)(2) of the Magnuson-Stevens Fishery
Conservation and Management Act, federal agencies must consult with the
NMFS and appropriate fisheries councils before undertaking actions that
may adversely affect designated essential fish habitat. NMFS has
designated most of the Gulf of Mexico, including the area in which the
designated disposal site is located, as essential fish habitat. It is
unlikely that today's designation action will adversely affect
essential fish habitat because it will not materially change the status
quo. Because potentially adverse effects might be associated with its
future use in the context of a specific project, the COE will continue
to consult NMFS on a case-by-case basis. See 50 CFR 605.920(2).
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: January 25, 2000.
Jerry Clifford,
Acting Regional Administrator of Region 6.
In consideration of the foregoing, EPA amends subchapter H of
chapter I of title 40 of the Code of Federal Regulations as set forth
below.
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
1. The authority citation for part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
Sec. 228.14 [Amended]
2. Amend Sec. 228.14 by removing and reserving paragraph (j)(5).
3. Amend Sec. 228.15 by adding a new paragraph (j)(21) to read as
follows:
[[Page 31498]]
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(j) * * *
(21) Atchafalaya River and Bayous Chene, Boeuf, and Black, LA
(i) Location: 29E20'59.92" N, 91E 23' 33.23" W; 29E20'43.94" N,
91E23'09.73" W; 29E08'15.46" N, 91E34'51.02" W; and 29E07'59.43" N,
91E34'27.51" W.
(ii) Size: 9.14 square miles.
(iii) Depth: Average water depth of 16 feet.
(iv) Primary Use: Dredge material.
(v) Period of Use: Indefinite period of time.
(vi) Restriction: Disposal shall be limited to dredged material
from the bar channel of the Atchafalaya River and Bayous Chene, Boeuf,
and Black, Louisiana.
* * * * *
[FR Doc. 00-12388 Filed 5-17-00; 8:45 am]
BILLING CODE 6560-50-P