[Federal Register Volume 85, Number 150 (Tuesday, August 4, 2020)]
[Rules and Regulations]
[Pages 47035-47042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15963]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R04-OW-2016-0354; FRL-10012-27-Region 4]
Ocean Dumping: Modification of an Ocean Dredged Material Disposal
Site Offshore of Mobile, Alabama
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing a rule
that modifies the existing EPA-designated ocean dredged material
disposal site (ODMDS) offshore of Mobile, Alabama (referred to
hereafter as the existing Mobile ODMDS), pursuant to the Marine
Protection, Research and Sanctuaries Act of 1972, as amended (MPRSA).
The primary purpose for the
[[Page 47036]]
site modification is to enlarge the site to serve the long-term need
for a location to dispose of suitable material dredged from the Mobile
Harbor Federal navigation channel, and for the disposal of suitable
dredged material for persons who receive a MPRSA permit for such
disposal from other sites within Mobile Bay/Port of Mobile. The
modified site will be subject to monitoring and management to ensure
continued protection of human health and the marine environment.
DATES: This final rule is effective on September 3, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R04-OW-2016-0354. All documents in the docket are
listed on the http://www.regulations.gov website. Publicly available
docket materials are available electronically through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental
Protection Agency, Region 4, Water Division, Oceans and Estuarine
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone
number (404) 562-8082; 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 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 Mobile, Alabama. Currently, the U.S. Army Corps of
Engineers (USACE) would be most affected by this action. Potentially
affected categories and persons include:
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Examples of potentially regulated
Category persons
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Federal government................ USACE Civil Works projects, and
other Federal agencies.
Industry and general public....... Port authorities, marinas and
harbors, shipyards and marine
repair facilities, berth owners.
State, local and tribal Governments owning and/or
governments. responsible for ports, harbors, and/
or berths, Government agencies
requiring disposal of dredged
material associated with public
works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular person, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
a. History of Disposal Sites Offshore of Mobile, Alabama
The Mobile ODMDS is located between two and six miles south of
Dauphin Island in the Gulf of Mexico and is 4.75 square nautical miles
(nmi\2\) in size. The Mobile ODMDS received interim site designation
status in 1977 and final designation in 1988.
The USACE Mobile District and the EPA Region 4 have identified a
need to either designate a new ODMDS or modify the existing Mobile
ODMDS. The need for modifying the ocean disposal capacity is based on
future capacity requirements, historical dredging volumes, estimates of
dredging volumes for future proposed projects, and limited capacity of
upland confined disposal facilities (CDFs) in the area.
The EPA is modifying the existing Mobile ODMDS rather than
designate a new site off the coast of Mobile for ocean disposal of
dredged material. The modification of the existing Mobile ODMDS for
dredged material does not mean that the USACE or the EPA has approved
the use of the Mobile ODMDS for open water disposal of dredged material
from any specific project. Before any person can ocean dump dredged
material at the Mobile ODMDS, the EPA and the USACE must evaluate the
project according to the ocean dumping regulatory criteria (40 CFR,
part 227) and the USACE must authorize the disposal. The EPA
independently evaluates proposed dumping and has the right to restrict
and/or disapprove of the actual disposal of dredged material if the EPA
determines that environmental requirements under the MPRSA have not
been met. This action is supported by an Environmental Assessment,
which was established in accordance with the National Environmental
Policy Act.
b. Location and Configuration of the Modified Mobile ODMDS
The modified ODMDS is in approximately 34 to 57 feet of water and
is located between 2.0 and 6.0 nautical miles south of Dauphin Island,
Alabama. The modified ODMDS would expand the existing Mobile ODMDS from
a size of approximately 4.75 nmi\2\ to approximately 23.8 nmi\2\ in
size. The location of the modified ODMDS is bounded by the coordinates
listed below. The coordinates for the site are in North American Datum
83 (NAD 83):
Modified Mobile ODMDS
(A) 30[deg] 13.0' N, 88[deg] 08.8' W
(B) 30[deg] 09.6' N, 88[deg] 04.8' W
(C) 30[deg] 08.5' N, 88[deg] 05.8' W
(D) 30[deg] 08.5' N, 88[deg] 12.8' W
(E) 30[deg] 12.4' N, 88[deg] 12.8' W
The modification of the existing ODMDS will allow the EPA to
adaptively manage the site to maximize its capacity, minimize the
potential for mounding and associated safety concerns, and minimize the
potential for any long-term adverse effects to the marine environment.
c. Management and Monitoring of the Site
The modified ODMDS is expected to receive dredged material from the
federally authorized navigation project at Mobile Harbor, Alabama, and
dredged material from other applicants who have obtained a MPRSA permit
for the ocean disposal of dredged material. All persons using the site
will be required to follow the Site Management and Monitoring Plan
(SMMP) for the ODMDS that is specifically developed for the modified
ODMDS. The SMMP includes management and monitoring measures to ensure
that dredged materials disposed at the modified ODMDS are suitable for
disposal in the ocean and that adverse impacts of disposal, if any, are
addressed to the maximum extent practicable. This includes provisions
to avoid and minimize potential impacts to artificial reefs and
cultural resources. The SMMP for the modified ODMDS also addresses
management of the site to ensure adverse mounding does not occur and
ensures that disposal events minimize interference with other uses of
ocean waters near the modified ODMDS. Future transportation to the
ODMDS and disposal of dredged material at the
[[Page 47037]]
ODMDS will be governed by the currently approved version of the SMMP.
d. MPRSA Criteria
In evaluating the modified ODMDS, the EPA assessed the site
according to the criteria set forth in the MPRSA, with emphasis on the
general and specific regulatory criteria of 40 CFR part 228, to
determine whether the site designation satisfies those criteria. The
EPA's Final Environmental Assessment for Modification of the Ocean
Dredged Material Disposal Site Mobile, Alabama, May 2020 (FEA),
provides an extensive evaluation of the criteria and other related
factors for the modification of the existing ODMDS.
General Criteria (40 CFR 228.5)
(1) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
The location of the modified ODMDS was screened in 1982 by the
USACE as part of their evaluation of the area for selection of a
location for ocean dumping of dredged material under Section 103 of the
MPRSA, as there was no EPA-designated ODMDS at the time. That
evaluation included considerations of potential interference with other
activities in the marine environment including avoiding areas of
existing critical fisheries or shellfisheries, regions of heavy
commercial or recreational navigation, and potential historic
properties. These evaluations were re-considered from 2002 through to
the present time, as the modified ODMDS continued to be assessed.
(2) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
The modified ODMDS will only be used for disposal of suitable
dredged material as determined by Section 103 of the MPRSA. Based on
the USACE and the EPA's sediment testing and evaluation of dredged
material, disposal is not expected to have any long-term impact on
water quality. The modified ODMDS is located sufficiently far from
shore (two to six miles) and fisheries resources to allow temporary
water quality disturbances caused by ocean disposal of dredged material
to be reduced to ambient conditions before reaching any environmentally
sensitive areas.
(3) This criterion has been removed from the regulations and no
longer applies.
(4) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
The location, size, and configuration of the modified ODMDS will
provide long-term capacity, while also allowing effective site
management, site monitoring, and limiting environmental impacts to the
surrounding area to the greatest extent practicable.
Based on 25 years of projected new work and maintenance dredging,
and permitted dredged material disposal needs, it is estimated that the
modified ODMDS should be approximately 24 nmi\2\ in size to meet the
anticipated long-term disposal needs of the area. This would provide
the modified ODMDS with an estimated capacity of approximately 260
million cubic yards, which is sufficient to manage risk, account for
future unknown disposal operations from private entities, and provide a
margin of navigation safety.
By adding approximately 19 nmi\2\ to the existing Mobile ODMDS, the
total area of the modified Mobile ODMDS is 23.8 nmi\2\. An ODMDS of
this size and capacity will provide a long-term ocean disposal option
for the Mobile Bay area.
When determining the size of the proposed site, the ability to
implement effective monitoring and surveillance programs was considered
to ensure that the environment of the site could be protected, and that
navigational safety would not be compromised by the mounding of dredged
material, which could result in adverse wave conditions. A SMMP has
been developed and will be implemented to determine if disposal at the
site is significantly affecting adjacent areas and to detect the
presence of adverse effects. At a minimum, the monitoring program will
consist of bathymetric surveys, sediment grain size analysis, chemical
analysis of constituents of concern in the sediments, and a health
assessment of the benthic community.
(5) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
Locating the disposal site near the continental shelf is not
feasible and would be cost prohibitive. Transporting material to and
performing long-term monitoring of a site located off the continental
shelf is not economically or operationally feasible.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance from Coast (40 CFR 228.6(a)(1)).
The modified ODMDS is in the Gulf of Mexico, between two and six
miles offshore of Dauphin Island, Alabama. Water depths range from -34
to -57 feet (10.4 to 17.4 meters) with an overall average depth of -45
feet (13.7 meters). Sediments consist of sands to clays, with various
mixtures of sand, silts, and clays. Most areas in the modified ODMDS
have a higher percentage of silt/clay than sand. There tends to be more
fine material in the northern portion of the site, and more fine sand
on the southern portion of the modified ODMDS. There is a shallower
mound (approximately -18 feet MLLW) located in the southeastern portion
of the site, where material was historically placed for disposal. There
are numerous oil and gas wells located throughout the proposed
expansion area. Disposal shall not occur closer than 1,300 feet to any
oil or gas rig that may be present within the site boundaries. The FEA
contains a map of the ODMDS modification.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
The modified ODMDS has been selected to avoid the presence of any
exclusive breeding, spawning, nursery, feeding, or passage areas for
adult or juvenile phases of living resources.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
The center of the modified ODMDS is several miles from any beaches
or amenity areas. No significant impacts to beaches or amenity areas
associated with the existing Mobile ODMDS have been detected.
(4) Types and Quantities of Wastes Proposed to be Disposed of, and
Proposed Methods of Release, including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4)).
Only dredged material that meets the EPA Ocean Dumping Criteria in
40 CFR 220-228 and has been deemed suitable can be disposed of in the
ODMDS. Dredged materials dumped in this area will primarily be silts
and clays with some sands that originate from Mobile Bay including the
Federal Channel and
[[Page 47038]]
areas of the Port. Average yearly disposal of dredged material into the
modified ODMDS is expected to be approximately 2.9 million cubic yards
of maintenance and new work dredged material. Hopper dredge, barge, and
scow combinations are the usual vehicles of transport for the dredged
material, resulting in release of dredged material closer to the bottom
of the site which reduces resultant turbidity. None of the dredged
material is packaged in any manner.
Under section 103 of the MPRSA, the USACE is the federal agency
that decides whether to issue a permit authorizing the ocean disposal
of dredged materials. In the case of federal navigation projects
involving ocean disposal of dredged materials, transportation to and
disposal in ocean waters for disposal by the USACE is subject to the
MPRSA, but not to a USACE permit. The USACE relies on the EPA's ocean
dumping criteria when evaluating permit requests for (and implementing
federal projects involving) the transportation of dredged material for
the purpose of dumping it into ocean waters. MPRSA permits and federal
projects involving ocean dumping of dredged material are subject to the
EPA's review and concurrence. The EPA may concur with or without
conditions or decline to concur on the permit or federal project, i.e.,
non-concur. If the EPA concurs with conditions, the final permit or
federal project authorization must include those conditions. If the EPA
declines to concur (non-concurs) on an ocean dumping permit for dredged
material, the USACE cannot issue the permit or authorize the
transportation to and disposal of dredged material in the ocean
associated with the federal project.
(5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
The EPA expects monitoring and surveillance at the modified ODMDS
to be feasible and readily performed from ocean or regional class
research vessels. The entire area of the modified ODMDS has been
surveyed and sampled in 2009 and 2017. The EPA will monitor the site
for physical, biological, and chemical attributes as well as for
potential impacts. Bathymetric surveys will be conducted routinely, and
benthic infauna and epibenthic organisms will be monitored, as
described in the SMMP for the site.
(6) Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, including Prevailing Current Direction and
Velocity, if any (40 CFR 228.6(a)(6)).
Current velocities are greatest at the water's surface due to wind
and wave action. Intermediate and bottom layer currents are driven by
thermohaline and tidal circulations. Currents measured at gauge
stations surrounding the ODMDS are predominantly to the west or
southwest on the order of 10-30 centimeters per second.
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (including Cumulative Effects) (40 CFR
228.6(a)(7)).
Previous disposal of dredged material in the existing Mobile ODMDS
has resulted in temporary increases in suspended sediment
concentrations during disposal operations, localized mounding within
the site, burial of benthic organisms within the site, slight changes
in the abundance and composition of benthic assemblages, and changes in
the sediment composition from sandy sediments to finer-grained silts.
Short-term, long-term, and cumulative effects of dredged material
disposal in the modified ODMDS would be similar to those for the
previously designated Mobile ODMDS.
(8) Interference with Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8)).
There will be minor, short-term interferences with commercial and
recreational boat traffic during the transport of dredged material to
the modified ODMDS. There are several oil and gas extraction platforms
in the existing and modified Mobile ODMDS. The site has not been
identified as an area of special scientific importance. There are no
aquaculture areas near the site. There may be recreational fishing in
the area. The likelihood of direct interference with these activities
is low, provided there is close communication and coordination among
users of the ocean resources. There is one artificial reef site located
approximately a quarter mile south of the modified ODMDS. The SMMP for
the modified ODMDS contains provisions for corrective measures if
impacts to the artificial reef related to dredged material disposal are
identified.
(9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
Water quality of the existing site is typical of the Gulf of
Mexico. Water and sediment quality analyses conducted in the vicinity
of the modified ODMDS and experience with past disposals in the
previously designated Mobile ODMDS have not identified any adverse
water quality impacts from ocean disposal of dredged material. The site
supports benthic and epibenthic fauna characteristic of the shallow
Gulf of Mexico and are widespread off the Gulf coast.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10)).
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the modified ODMDS. Disposal of dredged material, as well
as monitoring, has been ongoing for the past 40 to 50 years. Nuisance
species have not been found. The dredged material to be disposed of at
the ODMDS is expected to be from similar locations to those dredged
previously, therefore it expected that any benthic organisms
transported to the site would be relatively similar in nature to those
already there.
(11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)).
A maritime investigation of this site was conducted in 1982 to
identify areas of high and low probability of submerged resources. Past
efforts showed the presence of magnetic anomalies that may be
indicative of potential resources. Until further analysis is conducted,
these anomalies should be avoided in the modified Mobile ODMDS.
The SMMP for the ODMDS contains measures to ensure that resources
identified in up-to-date maritime investigations are avoided and are
not adversely affected by dredged material disposal.
III. Environmental Statutory Review--National Environmental Policy Act
of 1969, as Amended (NEPA); Magnuson-Stevens Fisheries Conservation and
Management Act (MSA); Marine Mammal Protection Act (MMPA); Coastal Zone
Management Act (CZMA); Endangered Species Act, as Amended (ESA);
National Historic Preservation Act, as Amended (NHPA)
a. National Environmental Policy Act
Section 102 of the National Environmental Policy Act of 1969, as
amended (NEPA), 42 U.S.C. 4321 to 4370, requires Federal agencies to
prepare an Environmental Impact Statement (EIS) for major federal
actions significantly affecting the quality of the human environment.
NEPA does not apply to EPA designations of ocean disposal sites under
the MPRSA because the courts have exempted the EPA's
[[Page 47039]]
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, is appropriate.
The EPA's ``Notice of Policy and Procedures for Voluntary Preparation
of NEPA Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29,
1998), sets out both the policy and procedures the EPA uses when
preparing such environmental review documents.
A Draft Environmental Assessment (DEA) for the modification of the
Mobile ODMDS was released for public review and comment for a 35-day
period on September 26, 2018. The EPA re-noticed the DEA for public
review and comment for a 34-day period on October 17, 2019. In
addition, the EPA issued a preliminary Finding of No Significant Impact
for public review and comment for a 30-day period on June 2, 2020.
The DEA presented the analysis and alternatives considered for the
permanent designation of a modified ODMDS offshore Mobile, Alabama, for
the purpose of providing an environmentally acceptable option for the
ocean disposal of dredged material. The alternatives included: (1) No
action/continued use of the previously designated ODMDS; (2)
modification of the previously designated Mobile ODMDS to encompass a
larger area capable of meeting the capacity needs during the next 25
years; (3) modification of the previously designated Mobile ODMDS to
encompass a much larger area capable of meeting the capacity needs
during the next 50 years; and (4) designation of a new site. The second
alternative was presented as the selected alternative in the EA.
The EPA received comments on the DEA regarding issues that
included: (1) Potential movement of disposed material impacting nearby
artificial reefs; (2) consideration of impacts to the giant manta ray,
a newly listed threatened species; (3) the age of the existing cultural
resource surveys; and (4) a request for additional opportunity for
public review and comment. A detailed responsiveness summary is
included in the appendices in the FEA. In addition, a summary of the
EPA's consideration of comments received regarding the proposal to
modify the Mobile ODMDS is included below.
Following the consideration of comments received, the EPA has
issued a Finding of No Significant Impact and the FEA. These documents
are included in the docket for this action and may be accessed from
http://www.regulations.gov.
b. Magnuson-Stevens Fishery Conservation and Management Act
The FEA includes a description of the history during the past 18
years of consultation with the National Marine Fisheries Service (NMFS)
regarding the assessment of essential fish habitat (EFH), pursuant to
Section 305(b), 16 U.S.C. 1855(b)(2), of the MSA with respect to the
Mobile ODMDS. On July 24, 2018, the USACE issued a Draft Integrated
General Reevaluation Report with Supplemental Environmental Impact
Statement on the Mobile Harbor Navigation Project, which included an
assessment of EFH regarding the disposal of dredged material to the
Mobile ODMDS. On September 7, 2018, NMFS issued a letter to the USACE
that stated its agreement with the USACE's determination that the
project will not adversely affect EFH. The EPA notified NMFS by letter
dated September 25, 2018, of the proposed action to modify the Mobile
ODMDS and provided the EPA's assessment that this action would not
likely adversely affect EFH. On May 13, 2020, NMFS notified the EPA by
email that the required EFH consultation under the MSA has been
successfully concluded.
c. Coastal Zone Management Act
Pursuant to an Office of Water policy memorandum dated October 23,
1989, the EPA has evaluated the proposed site designations for
consistency with the State of Alabama's approved coastal zone
management program. On September 25, 2018, the EPA notified the Alabama
Department of Environmental Management of the proposed modification of
the Mobile ODMDS and provided them with the EPA's assessment that the
proposed action was consistent with Alabama's coastal zone management
program to the maximum extent practicable. On April 10, 2020, ADEM
notified the EPA by email that the Alabama Coastal Area Management
Program does not object to the proposal to expand the ODMDS on the
basis that all placed material is required to meet the EPA's
environmental criteria and it keeps the mineral resource within the
system.
d. Endangered Species Act
The ESA, as amended, 16 U.S.C. 1531 to 1544, requires Federal
agencies to consult with NMFS and the U.S. Fish and Wildlife Service
(USFWS) to ensure that any action authorized, funded, or carried out by
the Federal agency is not likely to jeopardize the continued existence
of any federally listed endangered or threatened species or result in
the destruction or adverse modification of any critical habitat. The
EPA notified NMFS and USFWS respectively by letters dated September 25,
2018, of the proposed action to modify the Mobile ODMDS and provided
the EPA's assessment that this action would not likely adversely affect
federally listed species or their critical habitat.
In a letter dated October 8, 2018, the USFWS concurred with the
EPA's determination that the proposed action is not likely to adversely
affect federally listed species under the jurisdiction of the USFWS.
The USFWS further stated that no further endangered species
consultation will be required unless: The proposed action is
subsequently modified in a manner that causes an effect on listed
species or their critical habitat; new information reveals that the
proposed action may affect listed species or their critical habitat in
a manner or to an extent not previously considered, or a new species is
listed or critical habitat is designated under the ESA that may be
affected by the proposed action. As of the date of this action, there
are no new federally listed species under jurisdiction of the USFWS in
the project area. There are also no new information or changes to the
project that may affect species or their critical habitat in a manner
or extent not previously considered.
Following the issuance of the EPA's letter dated September 25,
2018, the EPA learned of additional federally listed species under the
jurisdiction of NMFS including the giant manta ray (Manta birostris)
and the Bryde's whale (Balaenoptera edeni brydei). In addition, NMFS is
in the process of developing a Gulf of Mexico Regional Biological
Opinion, which is expected to address all federally listed species that
may be affected by the modification of the Mobile ODMDS. Based on the
EPA's May 8, 2020 communication with NMFS, the EPA is deferring
completion of consultation with respect to the modification of the
Mobile ODMDS pursuant to ESA Section 7(d).
e. National Historic Preservation Act
The USACE and the EPA initiated consultation with the State of
Alabama's Historic Preservation Officer (SHPO) on September 25, 2018,
to address the NHPA, 16 U.S.C. 470 to 470a-2, which requires Federal
agencies to consider the effect of their actions on districts, sites,
buildings, structures, or objects, included in, or eligible for
inclusion in the National Register of Historic Places. In a letter
dated October 13, 2018, the Alabama Historical Commission (AHC)
[[Page 47040]]
recommended more up to date maritime surveys in the proposed action
area.
During the public comment period for the draft rule to modify the
Mobile ODMDS, the EPA received an email from the Choctaw Nation of
Oklahoma (CNO) dated July 30, 2019 that notified the EPA that the
proposed modification of the Mobile ODMDS lies within the CNO's area of
historic interest and that unidentified cultural resources may be
located in this area. The CNO also issued an email to the EPA dated
November 18, 2019 that requested that they be a consulting party on the
modification to the ODMDS pursuant to the NHPA. Following discussions
with the AHC and the CNO, the EPA issued letters to the AHC and CNO
dated January 24, 2020 that presented language that set forth
management provisions to be included in the SMMP to ensure protection
of historic and cultural archaeological resources and address the
interests expressed by the AHC and the CNO. The EPA specifically
proposed language in the SMMP that references a Programmatic Agreement
between the USACE and the AHC regarding the Mobile Harbor General
Reevaluation Study (Programmatic Agreement), which was signed on July
26, 2019, and sets forth surveys and other activities that would need
to be conducted prior to the disposal of dredged material to unused
portions of the expanded Mobile ODMDS. On February 25, 2020, the AHC
responded by letter and informed the EPA of its agreement with the
proposed language. During subsequent communications with the EPA
through email and teleconference on February 24, and March 23, 2020,
the CNO stated that they had no objections to the proposed language and
had no further comments on the EPA's proposed modification of the
Mobile ODMDS.
IV. Responses to Comments Received on the Proposed Rule
On June 25, 2019, the EPA published a proposed rule (docket number
EPA-R04-OW-2016-0356) to modify the site for public review and comment
for a 45-day period. During that time, the EPA received comments from
government agencies including the CNO, the National Oceanic and
Atmospheric Administration (NOAA), and the U.S. Department of Interior
(DOI). The EPA also received comments from two members of the public
during this time. The specific comments received on the proposed rule
and the EPA's responses to such comments are included in the
Responsiveness Summary of Appendix C of the FEA, which may be accessed
at http://www.regulations.gov. Below is a summary of the EPA's
consideration of the comments received regarding the proposed rule.
The comments from the CNO and the EPA's consideration of such
comments are described above in Section III.e.
NOAA issued a comment from its Marine Chart Division requesting
clarity regarding the boundaries of the modified ODMDS and the
boundaries that are currently defined on marine charts. The boundaries
of the modified ODMDS were established to ensure protection of human
health and the marine environment pursuant to the requirements of
MPRSA. The boundaries are set forth by the coordinates of this
regulation and are also presented in tables ES-3 and ES-4 of the FEA.
The DOI recommended that the modified ODMDS be re-surveyed prior to
the deposition of dredged material using more modern equipment than
what was available nearly 40 years ago. The SMMP for the Mobile ODMDS
includes language that references a Programmatic Agreement that
specifies work, including modern surveys, to be conducted prior to the
disposal of dredged material for unused portions of the ODMDS.
The comments received from members of the public included concerns
about the adequacy of the opportunity to provide comments on the DEA.
The EPA subsequently reopened the public comment period for the DEA for
a 34-day period on October 17, 2019. The public comments also
referenced the DEA and expressed concerns about the description of the
respective roles of the EPA and the USACE regarding the modification of
the Mobile ODMDS. The FEA includes updated language from the language
included in the DEA to ensure clarity regarding the responsibilities of
the EPA under the MPRSA, including coordination with the USACE, with
respect to the modification of the Mobile ODMDS. The public also
provided recommended revisions to some of the language in the DEA,
which are addressed in the FEA as described in more detail in the
responsiveness summary in Appendix C of the FEA.
A member of the public requested that the rule be clarified to
define the changes that would be expected to occur within the modified
ODMDS that demonstrate that the capacity has been exhausted. The member
of the public further requested that the rule explain how the USACE
would be prevented from exceeding this capacity. The exhaustion of the
capacity of the ODMDS will ultimately be evaluated based on monitoring
data obtained from the ODMDS. The requirements for monitoring and
management of the ODMDS, including the monitoring of changes in
bathymetry, are set forth in the SMMP. The EPA and the USACE will
utilize the monitoring data collected as the basis for understanding
the changes in available capacity over time for the Mobile ODMDS. In
addition, no material can be disposed of in the ODMDS without the EPA's
review and concurrence in accordance with MPRSA Section 103. The EPA
will consider all available data and information, including monitoring
data from the site, prior to taking management action pursuant to MPRSA
for the Mobile ODMDS.
A member of the public stated that the rule and the DEA should be
revised to reflect a modification to the Mobile ODMDS that would
accommodate the disposal needs during the next 50 years, instead of 25
years. A Memorandum of Understanding between the USACE South Atlantic
Division and EPA Region 4 specifically identifies a period of 10 to 25
years for considering the long-term use for designation or modification
of an ODMDS. Basing the size of an ODMDS on a longer planning period,
such as 50 years, would significantly increase the necessary resources
to manage and monitor the ODMDS. The decision to utilize a 25-year time
frame for disposal was made by the USACE and the EPA in consideration
of the agreed-upon provisions of the 2017 MOU. If it is found that
material is accumulating in the site to a degree at which there are
concerns (biological, chemical, physical), modeling will be undertaken
to reassess the capacity as specified in the SMMP.
A member of the public expressed that the rule fails to address
some key provisions to protect the water from contamination and illegal
dumping. In accordance with the MPRSA and the criteria set forth by its
implementing regulations, as described in Section II above,
contaminated material cannot not be disposed in the Mobile ODMDS. Any
unauthorized dumping of material to the Mobile ODMDS is not allowed by
the rule that is being issued today and is subject to enforcement for
illegal dumping.
V. Statutory and Executive Order Reviews
This rule modifies the Mobile ODMDS pursuant to Section 102 of the
MPRSA. This action complies with applicable executive orders and
statutory provisions as follows:
[[Page 47041]]
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 site designation, does not
require persons to obtain, maintain, retain, report, or publicly
disclose information to or for a Federal agency.
c. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires Federal
agencies to prepare a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities,
small entity is defined as: (1) A small business defined by the Small
Business Administration's size regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. 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.
d. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for State, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.
e. Executive Order 13132: Federalism
This action does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this action. In the spirit of Executive Order 13132, and consistent
with the EPA policy to promote communications between the EPA and State
and local governments, the EPA specifically solicited comments on this
action from State and local officials.
f. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
As described in Section III.e. above, the CNO notified the EPA that
the proposed modification of the Mobile ODMDS lies within the CNO's
area of historic interest and requested to be a consulting party on the
modification to the ODMDS pursuant to the NHPA. The EPA conducted a
teleconference with the CNO on January 13, 2020 and discussed the CNO's
interests regarding the EPA's proposed action. The EPA issued a letter
to the CNO on January 24, 2020, that presented language that set forth
management provisions to be included in the SMMP to ensure protection
of historic and cultural archaeological resources and address the
interests expressed by the CNO. During subsequent communications with
the EPA through email and teleconference, the CNO stated that they had
no objections to the proposed language and had no further comments on
the EPA's proposed modification of the Mobile ODMDS.
g. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under Section 5-501 of the Executive Order has the
potential to influence the regulation. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks. The action
concerns the modification of the existing Mobile ODMDS and only has the
effect of providing a designated location for ocean disposal of dredged
material pursuant to Section 102 (c) of the MPRSA.
h. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355) because it is not a ``significant
regulatory action'' as defined under Executive Order 12866.
i. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs the EPA to provide
Congress, through Office of Management and Budget, explanations when
the Agency decides not to use available and applicable voluntary
consensus standards. This action includes environmental monitoring and
measurement as described in the SMMP. The EPA will not require the use
of specific, prescribed analytic methods for monitoring and managing
the modified ODMDS. The Agency plans to allow the use of any method,
whether it constitutes a voluntary consensus standard or not, that
meets the monitoring and measurement criteria discussed in the SMMP.
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,
[[Page 47042]]
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. The EPA has assessed the overall protectiveness of
modifying the existing Mobile ODMDS against the criteria established
pursuant to the MPRSA to ensure that any adverse impact to the
environment will be mitigated to the greatest extent practicable.
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: July 17, 2020.
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 revising paragraphs (h)(14)(i) through
(iii) and (vi) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(h) * * *
(14) * * *
(i) Location: Corner Coordinates (NAD 1983) 30[deg] 13.0' N,
88[deg] 08.8' W; 30[deg] 09.6' N, 88[deg] 04.8' W; 30[deg] 08.5' N,
88[deg] 05.8' W; 30[deg] 08.5' N, 88[deg] 12.8' W; 30[deg] 12.4' N,
88[deg] 12.8' W.
(ii) Size: Approximately 23.8 square nautical miles in size.
(iii) Depth: Ranges from 34 to 57 feet (10.4 to 17.4 meters).
* * * * *
(vi) Restrictions: (A) Disposal shall be limited to dredged
material from the Mobile, Alabama area;
(B) Disposal shall be limited to dredged material determined to be
suitable for ocean disposal according to 40 CFR 220-228;
(C) Transportation and Disposal shall be managed by the
restrictions and requirements contained in the Site Management and
Monitoring Plan (SMMP).;
(D) Monitoring of the site also shall be governed by the currently
approved SMMP.
* * * * *
[FR Doc. 2020-15963 Filed 8-3-20; 8:45 am]
BILLING CODE 6560-50-P