Ocean Dumping; Guam Ocean Dredged Material Disposal Site Designation, 19311-19318 [2010-8515]
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Federal Register / Vol. 75, No. 71 / Wednesday, April 14, 2010 / Proposed Rules
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(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7259, fax (214)
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SUPPLEMENTARY INFORMATION:
Dated: February 8, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010–8524 Filed 4–13–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 228
[FRL–9136–9]
Ocean Dumping; Guam Ocean
Dredged Material Disposal Site
Designation
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The EPA is proposing to
designate the Guam Deep Ocean
Disposal Site (G–DODS) as a permanent
ocean dredged material disposal site
(ODMDS) located offshore of Guam.
Dredging is essential for maintaining
safe navigation at port and naval
facilities in Apra Harbor and other
locations around Guam. Not all dredged
materials are suitable for beneficial reuse (e.g., construction materials, landfill
cover), and not all suitable materials can
be re-used or stockpiled for future use
given costs, logistical constraints, and
capacity of existing land disposal or rehandling sites. Therefore, there is a need
to designate a permanent ODMDS
offshore of Guam. Disposal operations at
the site will be limited to a maximum
of 1 million cubic yards (764,555 cubic
meters) per calendar year and must be
conducted in accordance with the Site
Management and Monitoring Plan. The
proposed ODMDS will be monitored
periodically to ensure that the site
operates as expected.
DATES: Comments on this proposed rule
must be received no later than May 14,
2010.
FOR FURTHER INFORMATION CONTACT: Mr.
Allan Ota, Dredging and Sediment
Management Team, U.S. Environmental
Protection Agency, Region IX (WTR–8),
75 Hawthorne Street, San Francisco, CA
94105, telephone (415) 972–3476 or
FAX: (415) 947–3537 or E-mail:
ota.allan@epa.gov.
The
supporting document for this site
designation is the Final Environmental
SUPPLEMENTARY INFORMATION:
Category
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State, local and Tribal governments ........................................................
Federal government .................................................................................
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Impact Statement for the Designation of
an Ocean Dredged Material Disposal
Site Offshore of Guam. This document
is available for public inspection at the
following locations:
1. Guam EPA’s Main Office, 17–3304
Mariner Avenue, Tiyan, Guam 96913.
2. Nieves M. Flores Memorial Public
Library, 254 Martyr Street, Hagatna,
Guam 96910.
3. Barrigada Public Library, 177 San
Roque Drive, Barrigada, Guam 96913.
4. Dededo Public Library, 283 West
Santa Barbara Avenue, Dededo, Guam
96929.
5. Maria R. Aguigui Memorial Library
(Agat Public Library), 376 Cruz Avenue,
Guam 96915.
6. Rosa Aguigui Reyes Memorial
Library (Merizo Public Library), 376
Cruz Avenue, Merizo, Guam 96915.
7. Yona Public Library, 265 Sister
Mary Eucharita Drive, Yona, Guam
96915.
8. EPA Region IX, Library, 75
Hawthorne Street, 13th Floor, San
Francisco, California 94105.
9. EPA Public Information Reference
Unit, Room 2904, 401 M Street, SW.,
Washington, DC 20460.
10. EPA Web site: https://
www.epa.gov/region9/.
11. U.S. Army Corps of Engineers’
(USACE) Web site: https://
www.poh.usace.army.mil.
A. Potentially Affected Entities
Entities potentially affected by this
action are persons, organizations, or
government bodies seeking to dispose of
dredged material in ocean waters at the
G–DODS, under the Marine Protection
Research and Sanctuaries Act, 33 U.S.C.
1401 et seq. The Rule would be
primarily of relevance to parties of the
island of Guam seeking permits from the
USACE to transport dredged material for
the purpose of disposal into ocean
waters at the G–DODS, as well as the
USACE itself (when proposing to
dispose of dredged material at the G–
DODS). Potentially affected categories
and entities seeking to use the G–DODS
and thus subject to this Rule include:
Examples of potentially affected entities
Industry and General Public .....................................................................
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•
•
•
•
•
Ports.
Marinas and Harbors.
Shipyards and Marine Repair Facilities.
Berth owners.
Governments owning and/or responsible for ports, harbors, and/or
berths.
• Government agencies requiring disposal of dredged material associated with public works projects.
• USACE Civil Works and O & M projects.
• Other Federal agencies, including the Department of Defense.
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This table lists the types of entities
that EPA is now aware potentially could
be affected. EPA notes, however, that
nothing in this Rule alters in any way,
the jurisdiction of EPA, or the types of
entities regulated under the Marine
Protection Research and Sanctuaries
Act. To determine if you or your
organization may be potentially affected
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 G–DODS. If you have
questions regarding the applicability of
this action to a particular entity, consult
the persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
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B. Background
Ocean disposal of dredged materials
is regulated under Title I of the Marine
Protection, Research and Sanctuaries
Act (MPRSA; 33 U.S.C. 1401 et seq.).
The EPA and the USACE share
responsibility for the management of
ocean disposal of dredged material.
Under Section 102 of MPRSA, EPA has
the responsibility for designating an
acceptable location for the ODMDS.
With concurrence from EPA, the USACE
issues permits under MPRSA Section
103 for ocean disposal of dredged
material deemed suitable according to
EPA criteria in MPRSA Section 102 and
EPA regulations in Title 40 of the Code
of Federal Regulations Part 227 (40 CFR
227).
It is EPA’s policy to publish an EIS for
all ODMDS designations (Federal
Register, Volume 63, Page 58045 [63 FR
58045], October 1998). A site
designation EIS is a formal evaluation of
alternative sites which examines the
potential environmental impacts
associated with disposal of dredged
material at various locations. The EIS
must first demonstrate the need for the
ODMDS designation action (40 CFR
6.203(a) and 40 CFR 1502.13) by
describing available or potential aquatic
and non-aquatic (i.e., land-based)
alternatives and the consequences of not
designating a site—the No Action
Alternative. Once the need for an ocean
disposal site is established, potential
sites are screened for feasibility through
the Zone of Siting Feasibility (ZSF)
process. Potential alternative sites are
then evaluated using EPA’s ocean
disposal criteria at 40 CFR Part 228 and
compared in the EIS. Of the sites which
satisfy these criteria, the site which best
complies with them is selected as the
preferred alternative for formal
designation through rulemaking
published in the Federal Register (FR).
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Formal designation of an ODMDS in
the Federal Register does not constitute
approval of dredged material for ocean
disposal. Designation of an ODMDS
provides an ocean disposal alternative
for consideration in the review of each
proposed dredging project. Before any
ocean disposal may take place, dredging
projects must demonstrate a need for
ocean disposal. Alternatives to ocean
disposal, including the option for
beneficial re-use of dredged material,
will be evaluated for each dredging
project. Ocean disposal is only allowed
when EPA and USACE determine that
the proposed activity is environmentally
acceptable according to the criteria at 40
CFR Part 227. Decisions to allow ocean
disposal are made on a case-by-case
basis through the MPRSA Section 103
permitting process, resulting in a
USACE permit or its equivalent process
for USACE’s Civil Works projects.
Material proposed for disposal at a
designated ODMDS must conform to
EPA’s permitting criteria for acceptable
quality (40 CFR Parts 225 and 227), as
determined from physical, chemical,
and bioassay/bioaccumulation tests as
prescribed by national sediment testing
protocols (EPA and USACE 1991). Only
clean non-toxic dredged material is
acceptable for ocean disposal. The
proposed ODMDS will be monitored
periodically to ensure that the site
operates as expected. This proposed site
designation has been prepared pursuant
to Section 102 of the Marine Protection,
Research and Sanctuaries Act (MPRSA).
This ocean disposal site designation is
based on EPA’s general and specific
criteria as evaluated in the March 2010
‘‘Final Environmental Impact Statement
for Designation of an Ocean Dredged
Material Disposal Site Offshore of
Guam’’ (Final EIS).
Historically, dredged material
generated around Guam by the Navy
and the Port Authority of Guam (PAG)
has either been placed in upland
dewatering/disposal sites or beneficially
used. These are currently the only
management options for dredged
material. The anticipated volume of
dredged material generated around
Guam over the next 30 years would
exceed the capacity of known or
existing stockpile or beneficial use
options. The need for additional
dredged material disposal options is
exacerbated by the planned increase in
military presence on Guam, which
would include extensive Navy and PAG
harbor and navigation improvements.
Assuming all existing upland
dewatering facilities are used and all
known beneficial use options are fully
implemented, there would still be a
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substantial excess of dredged material to
be managed. An ODMDS provides an
important management option for
dredged material that is suitable and
non-toxic, but for which other
management options are not practical.
The purpose of this action is to ensure
that adequate, environmentallyacceptable ocean disposal site capacity,
in conjunction with other management
options including upland disposal and
beneficial reuse, is available for suitable
dredged material generated from Apra
Harbor and other locations on and
around Guam.
EPA and USACE encourage the use of
dredged material for beach
replenishment in areas degraded by
erosion. The grain size distribution of
dredged material must be compatible
with the receiving beach, and biological
and water quality impacts must be
considered prior to permitting of beach
disposal. EPA and USACE evaluate the
selection of appropriate disposal
methods on a case-by-case basis for each
permit. Additionally, opportunities
arise periodically to use dredged
material for marine landfilling projects,
also referred to as the creation of
‘‘fastlands.’’ When the need arises, the
use of dredged material for the creation
of fastlands is considered a viable
alternative to ocean disposal. Other
potential beneficial uses for dredged
material include construction fill, use as
cap material in aquatic remediation
projects, wetland creation, habitat
restoration, landfill daily cover, and
recycling into commercial products
such as construction aggregate, ceramic
tiles, or other building materials.
Potentially practicable management
options are evaluated as part of the
permitting process for individual
dredging projects.
EPA has determined that the
Northwest Alternative identified in the
Final EIS is the environmentally
preferred site, and this action proposes
to designate the G–DODS as an ocean
dredged material disposal site, located
approximately 11 nautical miles (21
kilometers) west of Apra Harbor. The
circular seafloor boundary of the
permanently designated G–DODS would
be centered at 13°35.500′ North latitude
by 144°28.733′ West longitude (North
American Datum from 1983), with a
diameter of 3 nautical miles (5.6
kilometers). However, all dredged
material must be discharged within a
smaller 3,280 foot (1,000 meter)
diameter Surface Disposal Zone (SDZ) at
the center of the overall site. The depth
of the center of the site is 8,790 feet
(2,680 meters). The action provides for
adequate, environmentally-acceptable
ocean disposal site capacity for suitable
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dredged material generated from
dredging projects in Apra Harbor and
other areas in and around Guam by
formally designating the G–DODS.
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C. Disposal Volume Limit
The action is formal designation of
the G–DODS managed at a maximum
annual dredged material disposal
quantity of 1 million cubic yards
(764,555 cubic meters) for the ocean
disposal of dredged material from Apra
Harbor and other areas in and around
Guam. The need for ongoing ocean
disposal capacity is based on historical
dredging volumes from the local port
districts, marinas and harbors, and
Federal navigational channels, as well
as estimates of future average annual
dredging.
D. Site Management and Monitoring
Plan
Verification that significant impacts
do not occur outside of the disposal site
boundaries will be demonstrated
through implementation of the Site
Management and Monitoring Plan
(SMMP) developed as part of the action
and included with the Final EIS. The
main purpose of the SMMP is to provide
a structured framework to ensure that
dredged material disposal activities will
not unreasonably degrade or endanger
human health, welfare, the marine
environment, or economic potentialities
(Section 103(a) of the MPRSA). Three
main objectives for management of the
G–DODS are: (1) Protection of the
marine environment; (2) beneficial use
of dredged material whenever practical;
and (3) documentation of disposal
activities at the ODMDS.
The EPA and USACE Honolulu
District personnel will achieve these
objectives by jointly administering the
following activities: (1) Regulation and
administration of ocean disposal
permits; (2) development and
maintenance of a site monitoring
program; (3) evaluation of permit
compliance and monitoring results; and
(4) maintenance of dredged material
testing and site monitoring records to
insure compliance with annual disposal
volume targets and to facilitate future
revisions to the SMMP.
The SMMP includes periodic physical
monitoring to confirm that disposal
material is deposited within the seafloor
disposal boundary, as well as chemical
monitoring to confirm that the sediment
actually disposed at the site is in fact
suitable (is consistent with the predisposal testing results). Other activities
implemented through the SMMP to
achieve these objectives include: (1)
Regulating quantities and types of
material to be disposed, including the
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time, rates, and methods of disposal;
and (2) recommending changes to site
use requirements, including disposal
amounts or timing, based on periodic
evaluation of site monitoring results.
E. Ocean Dumping Site Designation
Criteria
Five general criteria and 11 specific
site selection criteria are used in the
selection and approval of ocean disposal
sites for continued use (40 CFR 228.5
and 40 CFR 228.6(a)).
General Selection Criteria
1. The dumping of materials into the
ocean will be permitted only at sites or
in areas selected to minimize the
interference of disposal activities with
other activities in the marine
environment, particularly avoiding
areas of existing fisheries or
shellfisheries, and regions of heavy
commercial or recreational navigation.
The ZSF specifically screened the
marine environment to avoid areas of
existing fisheries or shellfisheries, and
regions of heavy commercial or
recreational navigation. The alternatives
evaluated in the Final EIS each avoid
such areas to the maximum extent
practicable.
2. Locations and boundaries of
disposal sites will be so chosen that
temporary perturbations in water
quality or other environmental
conditions during initial mixing caused
by disposal operations anywhere within
the site can be expected to be reduced
to normal ambient seawater levels or to
undetectable contaminant
concentrations or effects before reaching
any beach, shoreline, marine sanctuary,
or known geographically limited fishery
or shellfishery.
Both alternative site boundaries are
located sufficiently from shore
(minimum 11 nautical miles [21
kilometers]) and from geographically
limited fishing areas or other sensitive
fishery resources to allow water quality
perturbations caused by dispersion of
disposal material to be reduced to
ambient conditions before reaching
environmentally sensitive areas.
3. If at any time during or after
disposal site evaluation studies, it is
determined that existing disposal sites
presently approved on an interim basis
for ocean dumping do not meet the
criteria for site selection set forth in
Sections 228.5 through 228.6, the use of
such sites will be terminated as soon as
suitable alternate disposal sites can be
designated.
The interim ODMDS established for
Guam does not meet current EPA
criteria. It was never used and the
designation was terminated.
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4. The sizes of the ocean disposal sites
will be limited in order to localize for
identification and control any
immediate adverse impacts and permit
the implementation of effective
monitoring and surveillance programs
to prevent adverse long-range impacts.
The size, configuration, and location of
any disposal site will be determined as
a part of the disposal site evaluation or
designation study.
The size and shape of the G–DODS is
the minimum necessary to limit
environmental impacts to the
surrounding area and facilitate
surveillance and monitoring operations,
determined by computer modeling as
described in the Final EIS. In addition,
all dredged material discharge must take
place within a smaller 3,280 foot (1,000
meter) diameter Surface Disposal Zone
(SDZ) at the center of the overall site.
5. EPA will, wherever feasible,
designate ocean dumping sites beyond
the edge of the continental shelf and
other such sites that have been
historically used.
The island of Guam is volcanic and
not part of a continental land mass and
does not have a continental shelf. In the
absence of a shelf break, continental
shelf can be defined as submerged land
between shoreline and depth of 656 ft
(200 m). On Guam, this typically occurs
within 1 nautical mile (1.9 kilometers)
of shore. The slope tends to increase
rapidly offshore of Guam and depths
can reach 6,000 ft (1.829 km) within 3
nm (5.6 km) (Weston Solutions and Belt
Collins 2006). The center point of G–
DODS is well beyond the continental
shelf, 11 nautical miles (21 kilometers)
from the shoreline. No ocean dumping
sites have been used for Guam dredging
projects.
Specific Selection Criteria
1. Geographical position, depth of
water, bottom topography, and distance
from the coast.
Centered at 13°35.500′ N and
144°28.733′ E and 11.1 nm (20.6 km)
from Apra Harbor. The bottom
topography at the site is essentially flat
and the depth at the center of the site
is 8,790 ft (2,680 m).
2. Location in relation to breeding,
spawning, nursery, feeding, or passage
areas of living resources in adult or
juvenile phases.
Due to the marine open water locale
of this site, the presence of aerial,
pelagic, or benthic living resources is
likely within these areas. However, the
site location, water depth and sparse
biological communities would minimize
any potential impacts to pelagic and
benthic resources.
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3. Location in relation to beaches and
other amenity areas.
The site is greater than 8.0 nm (14.8
km) from the jurisdictional 3nm coastal
zone boundary and unlikely to interfere
with coastal amenities. This site is not
visible from shore. No adverse impacts
from dredged material disposal
operations are expected on these
amenity areas.
4. Types and quantities of wastes
proposed to be disposed of, and
proposed methods of release, including
methods of packaging the waste, if any.
Only suitable dredged material may
be disposed at the site—no dumping of
toxic materials or industrial or
municipal waste would be allowed.
Dredged material proposed for ocean
disposal is subject to strict testing
requirements established by the EPA
and USACE, and only clean (non-toxic)
dredged materials are allowed to be
disposed at the G–DODS. Most dredged
material to be disposed will likely be
fine-grained material (clays and silts)
originating from the Inner Apra Harbor
area, and coarser-grained material
(sands and gravels) originating from the
Outer Apra Harbor area. Maximum
annual dredged material volumes would
be set at 1,000,000 cy (764,555 m3).
Dredged material is expected to be
released from split hull barges.
5. Feasibility of surveillance and
monitoring.
EPA (and USACE for Federal projects
in consultation with EPA) is responsible
for site and compliance monitoring.
USCG is responsible for vessel trafficrelated monitoring. Monitoring of the
disposal site is feasible and facilitated
through use of a satellite-based remote
tracking system as specified in the
SMMP.
6. Dispersal, horizontal transport, and
vertical mixing characteristics of the
area, including prevailing current
direction and velocity, if any.
Oceanographic current velocities are
greatest at the surface due to
atmospheric circulation (e.g., winddriven) events, while intermediate and
bottom layer currents are much slower,
driven by thermohaline circulation and
influenced by tidal circulation.
Computer modeling, taking into account
all current depths and speeds, results in
a 2.98 mile diameter footprint of
deposits greater than 1 cm.
7. Existence and effects of current and
previous discharges and dumping in the
area (including cumulative effects).
No evidence of previous dumping
activities was observed during field
reconnaissance and there are no
designated discharge areas in the
vicinity. No interactions with other
discharges are anticipated due to the
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distances from existing discharge points
located on the island of Guam.
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.
Minor short-term interferences with
commercial and recreational boat traffic
may occur due to the transport of
dredged material along established
shipping lanes to/from G–DODS. There
are no oil or other mineral extraction
platforms offshore of Guam. The site has
not been identified as an area of special
scientific importance. There are no fish/
shellfish culture enterprises near the
site, and transportation to the site
avoids any fish aggregation devices
(FADs). There may be recreational
vessels passing through the site, but the
area is not a recreational destination.
9. Existing water quality and ecology
of the site as determined by available
data or by trend assessment or baseline
surveys.
Water quality is excellent with no
evidence of degradation. Sediment
quality is also typical of unaffected
deep-ocean environments removed from
pollutant sources. Baseline studies
showed no significant benthic fish or
shellfish resources in the area.
10. Potentiality for the development
or recruitment of nuisance species in
the disposal site.
The potential that any transported
nuisance species would survive at the
ODMDS is low due to depth and
temperature differences between the
deep ocean disposal site and the likely
sources of dredged material in the
harbors and other shallower areas in
and around Guam.
11. Existence at or in close proximity
to the site of any significant natural or
cultural features of historical
importance.
No culturally significant natural or
cultural features, including shipwrecks,
were identified in the vicinity of the
ODMDS.
F. Responses to Comments
The draft EIS was published in the
Federal Register on August 7, 2009. A
45-day public review and comment
period was extended to 60 days.
Comments were received from 10
individuals, organizations, and agencies
during the public review and comment
period. In addition to the comments
received, a public meeting was held on
August 20, 2009, to solicit comments
from interested parties. The comments,
and associated responses, are
summarized topically below.
Comments on the Draft EIS were
received by letter, e-mail, and at
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meetings during the public review and
comment period from various
individuals, organizations, and
agencies. Many of the comments
focused on specific errors, missing
information, or outdated information,
and the Final EIS was revised and
updated accordingly. Other substantive
comments and associated responses are
summarized topically below. Detailed
responses to individual comments are
presented in Appendix A of the Final
EIS.
Modeling
(1) Type of model used—STFATE
model, a standard model used for
dredged material dispersion and
deposition modeling, has been validated
by monitoring studies around the U.S.,
including at a deepwater site located
offshore of San Francisco, California.
(2) Dredged material dispersing or
settling outside of proposed site
boundaries, including potential impacts
to areas beyond the site boundaries,
such as seamounts—Site boundaries are
set such that outside of these
boundaries, plumes have already
dispersed to background conditions and
sediment deposits are indistinguishable
from native sediments on the seafloor.
No significant effects are expected
outside site boundaries, including to
seamounts or other major features.
Site Selection
(1) Placement of site should be in a
deep area away from shallow areas
containing corals—A Zone of Siting
Feasibility Study (ZSF) was conducted
to evaluate existing physical, geological,
and biological features as well as
military, commercial, and recreational
uses of the marine environment offshore
of Guam. This ZSF study eliminated
those areas from consideration resulting
in the study areas evaluated in the EIS,
all of which are in deep water many
miles from areas containing corals.
(2) General site selection criteria for
placement of the ocean disposal site
beyond the continental shelf should not
apply to Guam’s tropical setting—The
EIS evaluation noted the absence of
continental shelf offshore of Guam and
proposed alternative sites on abyssal
plains away from submarine slopes,
seamounts, or other unique features.
While the temperate and tropical
ecosystems are different in many
aspects in the surface coastal waters, the
physical oceanographic environments of
the deep ocean are fairly consistent
throughout the world, and EPA’s site
selection criteria remain valid for such
areas.
(3) Historic sites should be removed
from consideration—The EIS evaluation
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eliminated the nearshore interim site
(which expired in 1997) from
consideration.
(4) Waters near the equator have been
scientifically determined to meet these
qualifications [location in relation to
breeding, spawning, nursery, feeding or
passage areas of living resources in
adult or juvenile stage] and should be
avoided—The EIS evaluation notes that
due to the marine open water locale of
this ocean disposal site, the presence of
living organisms is likely within this
very large region. However, any
potential impacts to the overall pelagic
and benthic communities would be
minimized due to the site location (i.e.,
very small percentage of area occupied
offshore in the region), water depth,
absence of unique physical features or
habitats, and sparse biological
communities.
(5) Location relative to other amenity
areas should not be limited to local
jurisdictional areas but be inclusive of
all historic fishing areas and Fish
Aggregation Device placement areas
with the same buffer zone consideration
given to coastal areas—The ZSF study
did exclude the FAD areas from further
consideration and modeling results
indicate that potential impacts from
disposal operations are not expected to
reach those areas. Pelagic fishing can
occur anywhere throughout this very
large region, but impacts to pelagic
fishing or fishery resources are not
anticipated because disposal operations
will affect a very small percentage of the
area and discharge plumes will disperse
to background conditions within the G–
DODS boundary.
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Beneficial Reuse of Dredged Material
(1) Quality of sediments to be
considered—Only suitable (non-toxic)
dredged material may be considered for
ocean disposal. However, even
sediments that are tested and
determined to be suitable for ocean
disposal must be evaluated for
beneficial reuse opportunities such as
beach nourishment, habitat restoration,
or construction fill before ocean
disposal will be permitted. Sediments
that are not suitable for ocean disposal
may still be considered for reuse in
construction fill or landfill cover, etc.
(2) Need for additional dewatering
and stockpile sites—EPA encourages
evaluation of creating additional
capacity of this nature to increase
opportunities for beneficial reuse.
However there remains a need for an
ocean disposal site to address situations
when suitable dredged material cannot
be reused because of timing or logistics
issues.
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Oceanography/Currents
(1) One full year of oceanographic
current meter data collection is not
sufficient to characterize ocean current
anomalies seen periodically, so
sediment plumes created by surface
discharges may occasionally impact
resources (pelagic and reef species,
including larvae) much farther away
than indicated by the computer
modeling—The potential effects of El
˜
˜
Nino and La Nina conditions, in
addition to local current patterns
documented by the current meter study,
were considered in the EIS evaluation
by modeling ‘‘worst case’’ conditions
including ‘‘accelerated’’ current speeds
(up to an order of magnitude greater
than actually observed in the current
meter data records), various current
directions, and current reversals in the
surface layer (down to 300 meters). The
result of this evaluation showed that
surface layer dispersion would still be
contained within the disposal site
boundaries. It also showed that seafloor
deposits would not be significantly
different, because subsurface currents
(which have the predominant effect on
overall deposition) are not affected by
even these severe surface current
anomalies.
(2) Ocean disposal site impacts to
coral reef fish species which begin their
life cycle as pelagic larvae, drifting with
the currents and returning to the island
in juvenile stage—Pelagic larvae of coral
and coral reef fish that may be present
far offshore in the vicinity of the ocean
disposal site for the most part would not
be expected to return to Guam since the
prevailing easterly tradewind patterns
would result in them drifting farther
offshore. Therefore, offshore disposal
operations are not expected to have any
significant effect on nearshore
recruitment of coral or coral reef fish.
Impacts to Corals
(1) Disposal should be conducted
outside of annual coral spawning
period—This restriction has been
included in the SMMP, and conditions
on ocean disposal permits must reflect
this SMMP requirement.
(2) Degradation to water quality
resulting from dredging project
operations (i.e., turbidity, siltation,
dredging/filling, debris, fueling of
equipment)–On a project by project
basis, best management practices
(BMPs) as permit conditions will be
implemented as appropriate to
minimize impacts associated with
dredging operations themselves,
including use of silt curtains and other
measures to minimize turbidity,
avoiding transportation during coral
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spawning periods, implementing a
debris management plan, and
implementing other BMPs as needed. At
an ocean disposal site, located at least
11 nautical miles from Guam, offshore
disposal operations are not expected to
affect corals located in Apra Harbor or
along the coast of the island.
Impacts to Fishing
(1) Site selection should consider
avoidance of historic and current
fishing areas, particularly in the vicinity
of offshore seamounts such as Perez
Bank and Spoon Bank—The EIS
evaluation did consider the locations of
prominent submarine features and
avoided those locations in selecting the
preferred alternative. Furthermore,
modeling showed surface plumes
dispersed to background conditions
within the site boundaries, even using
severe (‘‘accelerated’’) surface current
speeds for worst case scenarios. No
significant effects are expected to
fishery resources, or to fishing activities,
outside the disposal site boundaries.
(2) The proposed alternative sites are
located in areas of upwelling which
attract large fish as a result of
deepwater nutrients rising to the surface
resulting in high plankton production—
Extensive studies of seamounts suggest
that Perez Bank and Spoon Bank are not
shallow enough features (i.e., summits
are not close enough to the sea surface)
to create substantial upwelling to
provide nutrient benefits to the photic
zone above. Measured nutrients were
typical of tropical ocean environments
and not indicative of upwelling zones.
(3) Use of bottom trawl to determine
species composition does not address
impacts to surface fishery—The EIS
field studies were intended to fill in
data gaps and to look for unknown or
unexpected habitat types or species in
the abyssal regions, about which much
less is known relative to pelagic habitats
where available information suggest that
pelagic species are wide-ranging in the
marine environment offshore of Guam.
Threatened and Endangered Species
(1) The ocean disposal site should be
limited in size for monitoring and
surveillance but the limits should
include an area up to five miles from the
center—The five mile extent is not
necessary because the modeling results
suggest that surface plumes dissipate to
background with the site boundaries
(out to 1.5 nautical mile radius) and the
deposit footprint on the seafloor is also
contained with these boundaries.
Disposal operations are expected to
result in temporary localized impacts
within the site boundaries and to not
have significant adverse impacts on
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pelagic species which are known to
occupy a wide range of the marine
environment offshore of Guam.
Nevertheless, when site monitoring is
conducted, adjacent areas outside the
official site boundary will be included.
(2) Published scientific reports
document valuable marine life
deserving of protection at depths along
the coast down to 35,000 feet, the latter
recognized by Presidential
Proclamation—The EIS evaluation
considered important resource areas to
avoid for site selection, including the
areas identified by the Presidential
Proclamation that established the
Marianas Trench Marine National
Monument which is located several
miles to the east of Guam and well out
of the influence of ocean dredged
material disposal activities west of
Guam.
Sediment Testing
(1) Dredged material testing is site
specific and does not characterize any
potential shipboard contamination—
Project site sediments determined to be
suitable (non-toxic) for ocean disposal
are not expected to become
contaminated in the dump scows during
transportation to the ocean disposal site
because the scows themselves do not
contain machinery or other materials
that can pollute the sediments in the bin
of these vessels. Any disposal vessels
that have handled contaminated
material prior to ocean disposal
operations should have their bins
cleaned prior to taking on any clean
dredged material.
(2) The EPA should conduct an
extensive series of tests and studies to
determine if radiation exists in Apra
Harbor waters or its sediments to
independently confirm the Navy’s claim
that the amount of leakage from
nuclear-powered vessels [submarines
such as the USS Houston] is
insignificant—The designation of an
ODMDS does not pre-approve any
dredging project sediments for ocean
disposal. Each proposed project must
subject its sediments to a battery of
physical, chemical, and biological tests
to determine suitability (non-toxicity)
for ocean disposal. Because EPA’s
Ocean Dumping Regulations explicitly
prohibit the disposal or discharge of
‘‘high-level radioactive wastes * * *
[and] materials produced or used for
radiological * * * warfare’’ at ocean
disposal sites [40 CFR 227.5], EPA
provided comments on the Joint Guam
Program Office (JGPO) draft EIS for the
Guam and CNMI military relocation
recommending that Dept of Defense
summarize past survey data for Apra
Harbor. Based on that information, EPA
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would require radioactivity assessment
as part of pre-dredging sediment
sampling where appropriate. Any
sediments with elevated radioactivityproposed to be dredged from Apra
Harbor must be managed separately at
an appropriate upland location.
Mitigation
Mitigation for unavoidable resource
losses as a result of ocean disposal of
sediments—Evaluation in the EIS
indicates that there may be localized
temporary physical impacts within the
ocean disposal site boundaries, but
benthic community recovery between
disposal operations is expected to be
rapid, and no long term adverse
environmental impacts to the
surrounding marine region offshore of
Guam are expected. Due to extreme
distance offshore and prevailing
currents away from Guam, no adverse
impacts are expected in Apra Harbor or
on the coast.
Disposal Operations
(1) Lack of monitoring for transport of
dredged material from the dredging site
to the ocean disposal site—The SMMP
contains ocean disposal site use
requirements that include automated
satellite-based tracking of the
transportation and disposal phases for
each trip to document that no leaking or
spilling of dredged material has
occurred during transport and that
proper placement occurs at the ocean
disposal site (discharge only within the
Surface Disposal Zone at the center of
the overall site).
(2) Observers should be present to
authorize disposal operations after
confirming the absence of seabirds,
schooling fish, and marine mammals—
The EIS evaluation determined that use
of G–DODS would not be expected to
result in long term adverse
environmental impact to the wideranging species of seabirds, schooling
fish, and marine mammals in the region
offshore of Guam, therefore EPA has not
included a requirement for independent
on-board observers. Automated
compliance monitoring would ensure
that disposal operations are restricted to
the transportation route to and from the
ocean disposal site.
(3) Compounded environmental
impacts of repeated disposals per day if
weather days restrict trips to the ocean
disposal site to accommodate one
million cubic yards per year—One
million cubic yards represents the
maximum disposal volume scenario,
which is not expected to occur every
year. No more than one scow would be
allowed in the disposal site at a time,
and turbidity impacts following
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disposal operations are expected to be
localized and temporary (reduced to
background in less than four hours).
Cultural/Environmental Justice
(1) Documentation that indigenous
populace of Guam has long utilized the
resources within the waters surrounding
Guam for over 3500 years, hence the
resource has historic significance and
adverse impacts which may alter
beneficial use should be [avoided]—The
EIS evaluation shows that there are no
historic resources in deepwater in the
vicinity of G–DODS, and there would be
no expected restrictions on historic
uses. As such, there will be no
expectation of significant or long term
impacts requiring mitigation.
(2) Designation of an ocean disposal
site may result in an environmental
injustice perpetrated against minority
and low-income populations, in this
case, the Chamorro people—The EIS
evaluation does not indicate that
designation of an offshore ocean
disposal site more than 11 nautical
miles offshore will result in any
significant or long term impacts on
island residents that would require
mitigation.
Nuisance Species
Presence of nuisance species in Apra
Harbor has been documented, and while
they are not expected to survive in the
deep depths of the ODMDS, it may be
possible for these invasive species to
float or drift back to Guam or other
islands areas, exacerbating the
problem—Prevailing currents to the
west would prevent these organisms
from drifting back to Apra Harbor or
other locations on Guam, and significant
dispersion over longer distance would
make survival unlikely in sufficiently
numbers before encountering another
island or land mass to the west.
Vessel Safety and Economics
Due to loss of fishing area as a result
of designation of ODMDS, the fishing
community may be forced to travel to
other fishing areas where rescue or other
services are not easily available; the
change of fishing habits to unfamiliar
may be considered a safety at sea issue
as well as added expense to travel a
greater distance to fish—The EIS
evaluation concludes that the site
designation does not restrict fishing in
the area and the potential adverse
impacts are not expected with regard to
vessel safety and operational costs. The
lack of impact is expected because the
frequency of dredged material transport
vessels encountering fishing vessels at
the site or along the transit route from
Apra Harbor will be much lower than
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frequency of encounter with other
commercial and recreational vessels,
due to the much larger numbers of the
latter group.
material meeting the criteria for ocean
disposal would not jeopardize the
continued existence of any Federally
listed species.
NEPA/Consultation
H. Administrative Review
(1) Effects of mammals were not fully
addressed, (2) consultation with
Western Pacific Regional Fishery
Management Council (WPRFMC), and
(3) Essential Fish Habitat—The
WPRFMC is not a formal consultation
agency under NEPA. The required
consultations were completed with
NOAA and US FWS with regard to
seabirds, marine mammals, threatened
and endangered species, fisheries, and
essential fish habitat. These agencies
provided recommendations on
additional information for EPA’s
assessment, contained in the draft EIS,
to clarify the basis for overall
conclusion of no significant impacts
resulting from designation of an
ODMDS in the marine region offshore of
Guam. Additional information and
revisions were incorporated into the
final EIS in accordance with these
recommendations. No significant
resource issues were raised by these
agencies.
1. Executive Order 12866
G. Regulatory Requirements
1. Consistency With the Coastal Zone
Management Act
Consistent with the Coastal Zone
Management Act (CZMA), EPA
prepared a Coastal Zone Consistency
Determination (CZCD) document based
on information presented in the site
designation DEIS. The CZCD evaluated
whether the action—permanent
designation of G–DODS would be
consistent with the provisions of the
CZMA. The CZCD was formally
submitted to the Bureau of Statistics and
Planning (BSP, Guam’s CZM agency) on
July 24, 2009. The BSP staff concurred
with EPA’s CZCD. The Proposed Rule is
consistent with the CZMA.
jlentini on DSKJ8SOYB1PROD with PROPOSALS
2. Endangered Species Act Consultation
During development of the site
designation EIS, EPA consulted with the
National Oceanic and Atmospheric
Administration (NOAA) Fisheries and
the U.S. Fish and Wildlife Service
(FWS) pursuant to the provisions of the
Endangered Species Act (ESA),
regarding the potential for designation
and use of the ocean disposal sites to
jeopardize the continued existence of
any Federally listed species. This
consultation process is fully
documented in the site designation EIS.
NOAA and FWS concluded that
proposed designation and use of the
disposal site for disposal of dredged
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Under Executive Order 12866 (58 FR
51735, October 4, 1993), EPA must
determine whether the regulatory action
is ‘‘significant’’, and therefore subject to
Office of Management and Budget
(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, a sector of 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 principles
set forth in the Executive Order.
This Proposed Rule should have
minimal impact on State, local or Tribal
governments or communities.
Consequently, EPA has determined that
this Proposed Rule is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866.
2. Paperwork Reduction Act
The Paperwork Reduction Act, 44
U.S.C. 3501 et seq., is intended to
minimize the reporting and recordkeeping 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 Proposed
Rule would not establish or modify any
information or record-keeping
requirements, but only clarifies existing
requirements, it is not subject to the
provisions of the Paperwork Reduction
Act.
3. Regulatory Flexibility Act, as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996
The Regulatory Flexibility Act (RFA)
provides that whenever an agency
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19317
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). The site
designation and management actions
would only have the effect of setting
maximum annual disposal volume and
providing a continuing disposal option
for dredged material. Consequently,
EPA’s action 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
Proposed Rule will not have a
significant economic impact on a
substantial number of small entities.
4. Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act (UMRA) of 1995 (Pub. L.
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 year.
This Proposed 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. The Proposed Rule
would only provide a continuing
disposal option for dredged material.
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 Proposed Rule.
5. Executive Order 13132: Federalism
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
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between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This Proposed Rule does not have
federalism implications. It 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. The Proposed
Rule would only have the effect of
setting maximum annual disposal
volumes and providing a continuing
disposal option for dredged material.
Thus, Executive Order 13132 does not
apply to this Proposed Rule.
6. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ This Proposed Rule does
not have Tribal implications, as
specified in Executive Order 13175. The
Proposed Rule would only have the
effect of setting maximum annual
disposal volumes and providing a
continuing disposal option for dredged
material. Thus, Executive Order 13175
does not apply to this Proposed Rule.
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7. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This Executive Order (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 Proposed 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 reason to believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children.
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8. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use Compliance With
Administrative Procedure Act
This Proposed Rule is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355 (May
22, 2001)) because it is not a significant
regulatory action under Executive Order
12866. The Proposed Rule would only
have the effect of setting maximum
annual disposal volumes and providing
a continuing disposal option for
dredged material. Thus, EPA concluded
that this Proposed Rule is not likely to
have any adverse energy effects.
9. National Technology Transfer
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 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
Proposed Rule does not involve
technical standards. Therefore, EPA is
not considering the use of any voluntary
consensus standards.
10. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and Low
Income Populations
Executive Order 12898 (59 FR 7629)
establishes Federal executive policy on
environmental justice. Its main
provision directs Federal agencies, to
the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States. EPA
determined that this proposed rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
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the level of protection provided to
human health or the environment. EPA
has assessed the overall protectiveness
of designating the disposal Sites 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.
Dated: April 6, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
In consideration of the foregoing, EPA
is proposing to amend part 228, chapter
I of title 40 of the Code of Federal
Regulations as follows:
PART 228—[AMENDED]
1. The authority citation for part 228
continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by
adding paragraph (l)(12) to read as
follows:
§ 228.15 Dumping sites designated on a
final basis.
*
*
*
*
*
(l) * * *
(12) Guam Deep Ocean Disposal Site
(G–DODS)—Region IX.
(i) Location: Center coordinates of the
circle-shaped site are: 13° 35.500′ North
Latitude by 144° 28.733′ West Longitude
(North American Datum from 1983),
with a radius of 3 nautical miles (5.6
kilometers).
(ii) Size: 7.1 square nautical miles
(24.3 square kilometers).
(iii) Depth: 8,790 feet (2,680 meters).
(iv) Use Restricted to Disposal of:
Dredged materials.
(v) Period of Use: Continuing use.
(vi) Restrictions: Disposal shall be
limited to a maximum of 1 million cubic
yards (764,555 cubic meters) per
calendar year of dredged materials that
comply with EPA’s Ocean Dumping
Regulations; disposal operations shall
be conducted in accordance with
requirements specified in a Site
Management and Monitoring Plan
developed by EPA and USACE, to be
reviewed periodically, at least every 10
years.
*
*
*
*
*
[FR Doc. 2010–8515 Filed 4–13–10; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 75, Number 71 (Wednesday, April 14, 2010)]
[Proposed Rules]
[Pages 19311-19318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8515]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-9136-9]
Ocean Dumping; Guam Ocean Dredged Material Disposal Site
Designation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing to designate the Guam Deep Ocean Disposal
Site (G-DODS) as a permanent ocean dredged material disposal site
(ODMDS) located offshore of Guam. Dredging is essential for maintaining
safe navigation at port and naval facilities in Apra Harbor and other
locations around Guam. Not all dredged materials are suitable for
beneficial re-use (e.g., construction materials, landfill cover), and
not all suitable materials can be re-used or stockpiled for future use
given costs, logistical constraints, and capacity of existing land
disposal or re-handling sites. Therefore, there is a need to designate
a permanent ODMDS offshore of Guam. Disposal operations at the site
will be limited to a maximum of 1 million cubic yards (764,555 cubic
meters) per calendar year and must be conducted in accordance with the
Site Management and Monitoring Plan. The proposed ODMDS will be
monitored periodically to ensure that the site operates as expected.
DATES: Comments on this proposed rule must be received no later than
May 14, 2010.
FOR FURTHER INFORMATION CONTACT: Mr. Allan Ota, Dredging and Sediment
Management Team, U.S. Environmental Protection Agency, Region IX (WTR-
8), 75 Hawthorne Street, San Francisco, CA 94105, telephone (415) 972-
3476 or FAX: (415) 947-3537 or E-mail: ota.allan@epa.gov.
SUPPLEMENTARY INFORMATION: The supporting document for this site
designation is the Final Environmental Impact Statement for the
Designation of an Ocean Dredged Material Disposal Site Offshore of
Guam. This document is available for public inspection at the following
locations:
1. Guam EPA's Main Office, 17-3304 Mariner Avenue, Tiyan, Guam
96913.
2. Nieves M. Flores Memorial Public Library, 254 Martyr Street,
Hagatna, Guam 96910.
3. Barrigada Public Library, 177 San Roque Drive, Barrigada, Guam
96913.
4. Dededo Public Library, 283 West Santa Barbara Avenue, Dededo,
Guam 96929.
5. Maria R. Aguigui Memorial Library (Agat Public Library), 376
Cruz Avenue, Guam 96915.
6. Rosa Aguigui Reyes Memorial Library (Merizo Public Library), 376
Cruz Avenue, Merizo, Guam 96915.
7. Yona Public Library, 265 Sister Mary Eucharita Drive, Yona, Guam
96915.
8. EPA Region IX, Library, 75 Hawthorne Street, 13th Floor, San
Francisco, California 94105.
9. EPA Public Information Reference Unit, Room 2904, 401 M Street,
SW., Washington, DC 20460.
10. EPA Web site: https://www.epa.gov/region9/.
11. U.S. Army Corps of Engineers' (USACE) Web site: https://www.poh.usace.army.mil.
A. Potentially Affected Entities
Entities potentially affected by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material in ocean waters at the G-DODS, under the Marine Protection
Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Rule would be
primarily of relevance to parties of the island of Guam seeking permits
from the USACE to transport dredged material for the purpose of
disposal into ocean waters at the G-DODS, as well as the USACE itself
(when proposing to dispose of dredged material at the G-DODS).
Potentially affected categories and entities seeking to use the G-DODS
and thus subject to this Rule include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
------------------------------------------------------------------------
Industry and General Public............ Ports.
Marinas and Harbors.
Shipyards and Marine
Repair Facilities.
Berth owners.
State, local and Tribal governments.... Governments owning and/
or responsible for ports,
harbors, and/or berths.
Government agencies
requiring disposal of dredged
material associated with
public works projects.
Federal government..................... USACE Civil Works and
O & M projects.
Other Federal
agencies, including the
Department of Defense.
------------------------------------------------------------------------
[[Page 19312]]
This table lists the types of entities that EPA is now aware
potentially could be affected. EPA notes, however, that nothing in this
Rule alters in any way, the jurisdiction of EPA, or the types of
entities regulated under the Marine Protection Research and Sanctuaries
Act. To determine if you or your organization may be potentially
affected 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 G-DODS. If you have questions regarding the applicability of
this action to a particular entity, consult the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Background
Ocean disposal of dredged materials is regulated under Title I of
the Marine Protection, Research and Sanctuaries Act (MPRSA; 33 U.S.C.
1401 et seq.). The EPA and the USACE share responsibility for the
management of ocean disposal of dredged material. Under Section 102 of
MPRSA, EPA has the responsibility for designating an acceptable
location for the ODMDS. With concurrence from EPA, the USACE issues
permits under MPRSA Section 103 for ocean disposal of dredged material
deemed suitable according to EPA criteria in MPRSA Section 102 and EPA
regulations in Title 40 of the Code of Federal Regulations Part 227 (40
CFR 227).
It is EPA's policy to publish an EIS for all ODMDS designations
(Federal Register, Volume 63, Page 58045 [63 FR 58045], October 1998).
A site designation EIS is a formal evaluation of alternative sites
which examines the potential environmental impacts associated with
disposal of dredged material at various locations. The EIS must first
demonstrate the need for the ODMDS designation action (40 CFR 6.203(a)
and 40 CFR 1502.13) by describing available or potential aquatic and
non-aquatic (i.e., land-based) alternatives and the consequences of not
designating a site--the No Action Alternative. Once the need for an
ocean disposal site is established, potential sites are screened for
feasibility through the Zone of Siting Feasibility (ZSF) process.
Potential alternative sites are then evaluated using EPA's ocean
disposal criteria at 40 CFR Part 228 and compared in the EIS. Of the
sites which satisfy these criteria, the site which best complies with
them is selected as the preferred alternative for formal designation
through rulemaking published in the Federal Register (FR).
Formal designation of an ODMDS in the Federal Register does not
constitute approval of dredged material for ocean disposal. Designation
of an ODMDS provides an ocean disposal alternative for consideration in
the review of each proposed dredging project. Before any ocean disposal
may take place, dredging projects must demonstrate a need for ocean
disposal. Alternatives to ocean disposal, including the option for
beneficial re-use of dredged material, will be evaluated for each
dredging project. Ocean disposal is only allowed when EPA and USACE
determine that the proposed activity is environmentally acceptable
according to the criteria at 40 CFR Part 227. Decisions to allow ocean
disposal are made on a case-by-case basis through the MPRSA Section 103
permitting process, resulting in a USACE permit or its equivalent
process for USACE's Civil Works projects. Material proposed for
disposal at a designated ODMDS must conform to EPA's permitting
criteria for acceptable quality (40 CFR Parts 225 and 227), as
determined from physical, chemical, and bioassay/bioaccumulation tests
as prescribed by national sediment testing protocols (EPA and USACE
1991). Only clean non-toxic dredged material is acceptable for ocean
disposal. The proposed ODMDS will be monitored periodically to ensure
that the site operates as expected. This proposed site designation has
been prepared pursuant to Section 102 of the Marine Protection,
Research and Sanctuaries Act (MPRSA). This ocean disposal site
designation is based on EPA's general and specific criteria as
evaluated in the March 2010 ``Final Environmental Impact Statement for
Designation of an Ocean Dredged Material Disposal Site Offshore of
Guam'' (Final EIS).
Historically, dredged material generated around Guam by the Navy
and the Port Authority of Guam (PAG) has either been placed in upland
dewatering/disposal sites or beneficially used. These are currently the
only management options for dredged material. The anticipated volume of
dredged material generated around Guam over the next 30 years would
exceed the capacity of known or existing stockpile or beneficial use
options. The need for additional dredged material disposal options is
exacerbated by the planned increase in military presence on Guam, which
would include extensive Navy and PAG harbor and navigation
improvements. Assuming all existing upland dewatering facilities are
used and all known beneficial use options are fully implemented, there
would still be a substantial excess of dredged material to be managed.
An ODMDS provides an important management option for dredged material
that is suitable and non-toxic, but for which other management options
are not practical. The purpose of this action is to ensure that
adequate, environmentally-acceptable ocean disposal site capacity, in
conjunction with other management options including upland disposal and
beneficial reuse, is available for suitable dredged material generated
from Apra Harbor and other locations on and around Guam.
EPA and USACE encourage the use of dredged material for beach
replenishment in areas degraded by erosion. The grain size distribution
of dredged material must be compatible with the receiving beach, and
biological and water quality impacts must be considered prior to
permitting of beach disposal. EPA and USACE evaluate the selection of
appropriate disposal methods on a case-by-case basis for each permit.
Additionally, opportunities arise periodically to use dredged material
for marine landfilling projects, also referred to as the creation of
``fastlands.'' When the need arises, the use of dredged material for
the creation of fastlands is considered a viable alternative to ocean
disposal. Other potential beneficial uses for dredged material include
construction fill, use as cap material in aquatic remediation projects,
wetland creation, habitat restoration, landfill daily cover, and
recycling into commercial products such as construction aggregate,
ceramic tiles, or other building materials. Potentially practicable
management options are evaluated as part of the permitting process for
individual dredging projects.
EPA has determined that the Northwest Alternative identified in the
Final EIS is the environmentally preferred site, and this action
proposes to designate the G-DODS as an ocean dredged material disposal
site, located approximately 11 nautical miles (21 kilometers) west of
Apra Harbor. The circular seafloor boundary of the permanently
designated G-DODS would be centered at 13[deg]35.500' North latitude by
144[deg]28.733' West longitude (North American Datum from 1983), with a
diameter of 3 nautical miles (5.6 kilometers). However, all dredged
material must be discharged within a smaller 3,280 foot (1,000 meter)
diameter Surface Disposal Zone (SDZ) at the center of the overall site.
The depth of the center of the site is 8,790 feet (2,680 meters). The
action provides for adequate, environmentally-acceptable ocean disposal
site capacity for suitable
[[Page 19313]]
dredged material generated from dredging projects in Apra Harbor and
other areas in and around Guam by formally designating the G-DODS.
C. Disposal Volume Limit
The action is formal designation of the G-DODS managed at a maximum
annual dredged material disposal quantity of 1 million cubic yards
(764,555 cubic meters) for the ocean disposal of dredged material from
Apra Harbor and other areas in and around Guam. The need for ongoing
ocean disposal capacity is based on historical dredging volumes from
the local port districts, marinas and harbors, and Federal navigational
channels, as well as estimates of future average annual dredging.
D. Site Management and Monitoring Plan
Verification that significant impacts do not occur outside of the
disposal site boundaries will be demonstrated through implementation of
the Site Management and Monitoring Plan (SMMP) developed as part of the
action and included with the Final EIS. The main purpose of the SMMP is
to provide a structured framework to ensure that dredged material
disposal activities will not unreasonably degrade or endanger human
health, welfare, the marine environment, or economic potentialities
(Section 103(a) of the MPRSA). Three main objectives for management of
the G-DODS are: (1) Protection of the marine environment; (2)
beneficial use of dredged material whenever practical; and (3)
documentation of disposal activities at the ODMDS.
The EPA and USACE Honolulu District personnel will achieve these
objectives by jointly administering the following activities: (1)
Regulation and administration of ocean disposal permits; (2)
development and maintenance of a site monitoring program; (3)
evaluation of permit compliance and monitoring results; and (4)
maintenance of dredged material testing and site monitoring records to
insure compliance with annual disposal volume targets and to facilitate
future revisions to the SMMP.
The SMMP includes periodic physical monitoring to confirm that
disposal material is deposited within the seafloor disposal boundary,
as well as chemical monitoring to confirm that the sediment actually
disposed at the site is in fact suitable (is consistent with the pre-
disposal testing results). Other activities implemented through the
SMMP to achieve these objectives include: (1) Regulating quantities and
types of material to be disposed, including the time, rates, and
methods of disposal; and (2) recommending changes to site use
requirements, including disposal amounts or timing, based on periodic
evaluation of site monitoring results.
E. Ocean Dumping Site Designation Criteria
Five general criteria and 11 specific site selection criteria are
used in the selection and approval of ocean disposal sites for
continued use (40 CFR 228.5 and 40 CFR 228.6(a)).
General Selection Criteria
1. The dumping of materials into the ocean will be permitted only
at sites or in areas selected to minimize the interference of disposal
activities with other activities in the marine environment,
particularly avoiding areas of existing fisheries or shellfisheries,
and regions of heavy commercial or recreational navigation.
The ZSF specifically screened the marine environment to avoid areas
of existing fisheries or shellfisheries, and regions of heavy
commercial or recreational navigation. The alternatives evaluated in
the Final EIS each avoid such areas to the maximum extent practicable.
2. Locations and boundaries of disposal sites will be so chosen
that temporary perturbations in water quality or other environmental
conditions during initial mixing caused by disposal operations anywhere
within the site can be expected to be reduced to normal ambient
seawater levels or to undetectable contaminant concentrations or
effects before reaching any beach, shoreline, marine sanctuary, or
known geographically limited fishery or shellfishery.
Both alternative site boundaries are located sufficiently from
shore (minimum 11 nautical miles [21 kilometers]) and from
geographically limited fishing areas or other sensitive fishery
resources to allow water quality perturbations caused by dispersion of
disposal material to be reduced to ambient conditions before reaching
environmentally sensitive areas.
3. If at any time during or after disposal site evaluation studies,
it is determined that existing disposal sites presently approved on an
interim basis for ocean dumping do not meet the criteria for site
selection set forth in Sections 228.5 through 228.6, the use of such
sites will be terminated as soon as suitable alternate disposal sites
can be designated.
The interim ODMDS established for Guam does not meet current EPA
criteria. It was never used and the designation was terminated.
4. The sizes of the ocean disposal sites will be limited in order
to localize for identification and control any immediate adverse
impacts and permit the implementation of effective monitoring and
surveillance programs to prevent adverse long-range impacts. The size,
configuration, and location of any disposal site will be determined as
a part of the disposal site evaluation or designation study.
The size and shape of the G-DODS is the minimum necessary to limit
environmental impacts to the surrounding area and facilitate
surveillance and monitoring operations, determined by computer modeling
as described in the Final EIS. In addition, all dredged material
discharge must take place within a smaller 3,280 foot (1,000 meter)
diameter Surface Disposal Zone (SDZ) at the center of the overall site.
5. EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites that have
been historically used.
The island of Guam is volcanic and not part of a continental land
mass and does not have a continental shelf. In the absence of a shelf
break, continental shelf can be defined as submerged land between
shoreline and depth of 656 ft (200 m). On Guam, this typically occurs
within 1 nautical mile (1.9 kilometers) of shore. The slope tends to
increase rapidly offshore of Guam and depths can reach 6,000 ft (1.829
km) within 3 nm (5.6 km) (Weston Solutions and Belt Collins 2006). The
center point of G-DODS is well beyond the continental shelf, 11
nautical miles (21 kilometers) from the shoreline. No ocean dumping
sites have been used for Guam dredging projects.
Specific Selection Criteria
1. Geographical position, depth of water, bottom topography, and
distance from the coast.
Centered at 13[deg]35.500' N and 144[deg]28.733' E and 11.1 nm
(20.6 km) from Apra Harbor. The bottom topography at the site is
essentially flat and the depth at the center of the site is 8,790 ft
(2,680 m).
2. Location in relation to breeding, spawning, nursery, feeding, or
passage areas of living resources in adult or juvenile phases.
Due to the marine open water locale of this site, the presence of
aerial, pelagic, or benthic living resources is likely within these
areas. However, the site location, water depth and sparse biological
communities would minimize any potential impacts to pelagic and benthic
resources.
[[Page 19314]]
3. Location in relation to beaches and other amenity areas.
The site is greater than 8.0 nm (14.8 km) from the jurisdictional
3nm coastal zone boundary and unlikely to interfere with coastal
amenities. This site is not visible from shore. No adverse impacts from
dredged material disposal operations are expected on these amenity
areas.
4. Types and quantities of wastes proposed to be disposed of, and
proposed methods of release, including methods of packaging the waste,
if any.
Only suitable dredged material may be disposed at the site--no
dumping of toxic materials or industrial or municipal waste would be
allowed. Dredged material proposed for ocean disposal is subject to
strict testing requirements established by the EPA and USACE, and only
clean (non-toxic) dredged materials are allowed to be disposed at the
G-DODS. Most dredged material to be disposed will likely be fine-
grained material (clays and silts) originating from the Inner Apra
Harbor area, and coarser-grained material (sands and gravels)
originating from the Outer Apra Harbor area. Maximum annual dredged
material volumes would be set at 1,000,000 cy (764,555 m\3\). Dredged
material is expected to be released from split hull barges.
5. Feasibility of surveillance and monitoring.
EPA (and USACE for Federal projects in consultation with EPA) is
responsible for site and compliance monitoring. USCG is responsible for
vessel traffic-related monitoring. Monitoring of the disposal site is
feasible and facilitated through use of a satellite-based remote
tracking system as specified in the SMMP.
6. Dispersal, horizontal transport, and vertical mixing
characteristics of the area, including prevailing current direction and
velocity, if any.
Oceanographic current velocities are greatest at the surface due to
atmospheric circulation (e.g., wind-driven) events, while intermediate
and bottom layer currents are much slower, driven by thermohaline
circulation and influenced by tidal circulation. Computer modeling,
taking into account all current depths and speeds, results in a 2.98
mile diameter footprint of deposits greater than 1 cm.
7. Existence and effects of current and previous discharges and
dumping in the area (including cumulative effects).
No evidence of previous dumping activities was observed during
field reconnaissance and there are no designated discharge areas in the
vicinity. No interactions with other discharges are anticipated due to
the distances from existing discharge points located on the island of
Guam.
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.
Minor short-term interferences with commercial and recreational
boat traffic may occur due to the transport of dredged material along
established shipping lanes to/from G-DODS. There are no oil or other
mineral extraction platforms offshore of Guam. The site has not been
identified as an area of special scientific importance. There are no
fish/shellfish culture enterprises near the site, and transportation to
the site avoids any fish aggregation devices (FADs). There may be
recreational vessels passing through the site, but the area is not a
recreational destination.
9. Existing water quality and ecology of the site as determined by
available data or by trend assessment or baseline surveys.
Water quality is excellent with no evidence of degradation.
Sediment quality is also typical of unaffected deep-ocean environments
removed from pollutant sources. Baseline studies showed no significant
benthic fish or shellfish resources in the area.
10. Potentiality for the development or recruitment of nuisance
species in the disposal site.
The potential that any transported nuisance species would survive
at the ODMDS is low due to depth and temperature differences between
the deep ocean disposal site and the likely sources of dredged material
in the harbors and other shallower areas in and around Guam.
11. Existence at or in close proximity to the site of any
significant natural or cultural features of historical importance.
No culturally significant natural or cultural features, including
shipwrecks, were identified in the vicinity of the ODMDS.
F. Responses to Comments
The draft EIS was published in the Federal Register on August 7,
2009. A 45-day public review and comment period was extended to 60
days. Comments were received from 10 individuals, organizations, and
agencies during the public review and comment period. In addition to
the comments received, a public meeting was held on August 20, 2009, to
solicit comments from interested parties. The comments, and associated
responses, are summarized topically below.
Comments on the Draft EIS were received by letter, e-mail, and at
meetings during the public review and comment period from various
individuals, organizations, and agencies. Many of the comments focused
on specific errors, missing information, or outdated information, and
the Final EIS was revised and updated accordingly. Other substantive
comments and associated responses are summarized topically below.
Detailed responses to individual comments are presented in Appendix A
of the Final EIS.
Modeling
(1) Type of model used--STFATE model, a standard model used for
dredged material dispersion and deposition modeling, has been validated
by monitoring studies around the U.S., including at a deepwater site
located offshore of San Francisco, California.
(2) Dredged material dispersing or settling outside of proposed
site boundaries, including potential impacts to areas beyond the site
boundaries, such as seamounts--Site boundaries are set such that
outside of these boundaries, plumes have already dispersed to
background conditions and sediment deposits are indistinguishable from
native sediments on the seafloor. No significant effects are expected
outside site boundaries, including to seamounts or other major
features.
Site Selection
(1) Placement of site should be in a deep area away from shallow
areas containing corals--A Zone of Siting Feasibility Study (ZSF) was
conducted to evaluate existing physical, geological, and biological
features as well as military, commercial, and recreational uses of the
marine environment offshore of Guam. This ZSF study eliminated those
areas from consideration resulting in the study areas evaluated in the
EIS, all of which are in deep water many miles from areas containing
corals.
(2) General site selection criteria for placement of the ocean
disposal site beyond the continental shelf should not apply to Guam's
tropical setting--The EIS evaluation noted the absence of continental
shelf offshore of Guam and proposed alternative sites on abyssal plains
away from submarine slopes, seamounts, or other unique features. While
the temperate and tropical ecosystems are different in many aspects in
the surface coastal waters, the physical oceanographic environments of
the deep ocean are fairly consistent throughout the world, and EPA's
site selection criteria remain valid for such areas.
(3) Historic sites should be removed from consideration--The EIS
evaluation
[[Page 19315]]
eliminated the nearshore interim site (which expired in 1997) from
consideration.
(4) Waters near the equator have been scientifically determined to
meet these qualifications [location in relation to breeding, spawning,
nursery, feeding or passage areas of living resources in adult or
juvenile stage] and should be avoided--The EIS evaluation notes that
due to the marine open water locale of this ocean disposal site, the
presence of living organisms is likely within this very large region.
However, any potential impacts to the overall pelagic and benthic
communities would be minimized due to the site location (i.e., very
small percentage of area occupied offshore in the region), water depth,
absence of unique physical features or habitats, and sparse biological
communities.
(5) Location relative to other amenity areas should not be limited
to local jurisdictional areas but be inclusive of all historic fishing
areas and Fish Aggregation Device placement areas with the same buffer
zone consideration given to coastal areas--The ZSF study did exclude
the FAD areas from further consideration and modeling results indicate
that potential impacts from disposal operations are not expected to
reach those areas. Pelagic fishing can occur anywhere throughout this
very large region, but impacts to pelagic fishing or fishery resources
are not anticipated because disposal operations will affect a very
small percentage of the area and discharge plumes will disperse to
background conditions within the G-DODS boundary.
Beneficial Reuse of Dredged Material
(1) Quality of sediments to be considered--Only suitable (non-
toxic) dredged material may be considered for ocean disposal. However,
even sediments that are tested and determined to be suitable for ocean
disposal must be evaluated for beneficial reuse opportunities such as
beach nourishment, habitat restoration, or construction fill before
ocean disposal will be permitted. Sediments that are not suitable for
ocean disposal may still be considered for reuse in construction fill
or landfill cover, etc.
(2) Need for additional dewatering and stockpile sites--EPA
encourages evaluation of creating additional capacity of this nature to
increase opportunities for beneficial reuse. However there remains a
need for an ocean disposal site to address situations when suitable
dredged material cannot be reused because of timing or logistics
issues.
Oceanography/Currents
(1) One full year of oceanographic current meter data collection is
not sufficient to characterize ocean current anomalies seen
periodically, so sediment plumes created by surface discharges may
occasionally impact resources (pelagic and reef species, including
larvae) much farther away than indicated by the computer modeling--The
potential effects of El Ni[ntilde]o and La Ni[ntilde]a conditions, in
addition to local current patterns documented by the current meter
study, were considered in the EIS evaluation by modeling ``worst case''
conditions including ``accelerated'' current speeds (up to an order of
magnitude greater than actually observed in the current meter data
records), various current directions, and current reversals in the
surface layer (down to 300 meters). The result of this evaluation
showed that surface layer dispersion would still be contained within
the disposal site boundaries. It also showed that seafloor deposits
would not be significantly different, because subsurface currents
(which have the predominant effect on overall deposition) are not
affected by even these severe surface current anomalies.
(2) Ocean disposal site impacts to coral reef fish species which
begin their life cycle as pelagic larvae, drifting with the currents
and returning to the island in juvenile stage--Pelagic larvae of coral
and coral reef fish that may be present far offshore in the vicinity of
the ocean disposal site for the most part would not be expected to
return to Guam since the prevailing easterly tradewind patterns would
result in them drifting farther offshore. Therefore, offshore disposal
operations are not expected to have any significant effect on nearshore
recruitment of coral or coral reef fish.
Impacts to Corals
(1) Disposal should be conducted outside of annual coral spawning
period--This restriction has been included in the SMMP, and conditions
on ocean disposal permits must reflect this SMMP requirement.
(2) Degradation to water quality resulting from dredging project
operations (i.e., turbidity, siltation, dredging/filling, debris,
fueling of equipment)-On a project by project basis, best management
practices (BMPs) as permit conditions will be implemented as
appropriate to minimize impacts associated with dredging operations
themselves, including use of silt curtains and other measures to
minimize turbidity, avoiding transportation during coral spawning
periods, implementing a debris management plan, and implementing other
BMPs as needed. At an ocean disposal site, located at least 11 nautical
miles from Guam, offshore disposal operations are not expected to
affect corals located in Apra Harbor or along the coast of the island.
Impacts to Fishing
(1) Site selection should consider avoidance of historic and
current fishing areas, particularly in the vicinity of offshore
seamounts such as Perez Bank and Spoon Bank--The EIS evaluation did
consider the locations of prominent submarine features and avoided
those locations in selecting the preferred alternative. Furthermore,
modeling showed surface plumes dispersed to background conditions
within the site boundaries, even using severe (``accelerated'') surface
current speeds for worst case scenarios. No significant effects are
expected to fishery resources, or to fishing activities, outside the
disposal site boundaries.
(2) The proposed alternative sites are located in areas of
upwelling which attract large fish as a result of deepwater nutrients
rising to the surface resulting in high plankton production--Extensive
studies of seamounts suggest that Perez Bank and Spoon Bank are not
shallow enough features (i.e., summits are not close enough to the sea
surface) to create substantial upwelling to provide nutrient benefits
to the photic zone above. Measured nutrients were typical of tropical
ocean environments and not indicative of upwelling zones.
(3) Use of bottom trawl to determine species composition does not
address impacts to surface fishery--The EIS field studies were intended
to fill in data gaps and to look for unknown or unexpected habitat
types or species in the abyssal regions, about which much less is known
relative to pelagic habitats where available information suggest that
pelagic species are wide-ranging in the marine environment offshore of
Guam.
Threatened and Endangered Species
(1) The ocean disposal site should be limited in size for
monitoring and surveillance but the limits should include an area up to
five miles from the center--The five mile extent is not necessary
because the modeling results suggest that surface plumes dissipate to
background with the site boundaries (out to 1.5 nautical mile radius)
and the deposit footprint on the seafloor is also contained with these
boundaries. Disposal operations are expected to result in temporary
localized impacts within the site boundaries and to not have
significant adverse impacts on
[[Page 19316]]
pelagic species which are known to occupy a wide range of the marine
environment offshore of Guam. Nevertheless, when site monitoring is
conducted, adjacent areas outside the official site boundary will be
included.
(2) Published scientific reports document valuable marine life
deserving of protection at depths along the coast down to 35,000 feet,
the latter recognized by Presidential Proclamation--The EIS evaluation
considered important resource areas to avoid for site selection,
including the areas identified by the Presidential Proclamation that
established the Marianas Trench Marine National Monument which is
located several miles to the east of Guam and well out of the influence
of ocean dredged material disposal activities west of Guam.
Sediment Testing
(1) Dredged material testing is site specific and does not
characterize any potential shipboard contamination--Project site
sediments determined to be suitable (non-toxic) for ocean disposal are
not expected to become contaminated in the dump scows during
transportation to the ocean disposal site because the scows themselves
do not contain machinery or other materials that can pollute the
sediments in the bin of these vessels. Any disposal vessels that have
handled contaminated material prior to ocean disposal operations should
have their bins cleaned prior to taking on any clean dredged material.
(2) The EPA should conduct an extensive series of tests and studies
to determine if radiation exists in Apra Harbor waters or its sediments
to independently confirm the Navy's claim that the amount of leakage
from nuclear-powered vessels [submarines such as the USS Houston] is
insignificant--The designation of an ODMDS does not pre-approve any
dredging project sediments for ocean disposal. Each proposed project
must subject its sediments to a battery of physical, chemical, and
biological tests to determine suitability (non-toxicity) for ocean
disposal. Because EPA's Ocean Dumping Regulations explicitly prohibit
the disposal or discharge of ``high-level radioactive wastes * * *
[and] materials produced or used for radiological * * * warfare'' at
ocean disposal sites [40 CFR 227.5], EPA provided comments on the Joint
Guam Program Office (JGPO) draft EIS for the Guam and CNMI military
relocation recommending that Dept of Defense summarize past survey data
for Apra Harbor. Based on that information, EPA would require
radioactivity assessment as part of pre-dredging sediment sampling
where appropriate. Any sediments with elevated radioactivity-proposed
to be dredged from Apra Harbor must be managed separately at an
appropriate upland location.
Mitigation
Mitigation for unavoidable resource losses as a result of ocean
disposal of sediments--Evaluation in the EIS indicates that there may
be localized temporary physical impacts within the ocean disposal site
boundaries, but benthic community recovery between disposal operations
is expected to be rapid, and no long term adverse environmental impacts
to the surrounding marine region offshore of Guam are expected. Due to
extreme distance offshore and prevailing currents away from Guam, no
adverse impacts are expected in Apra Harbor or on the coast.
Disposal Operations
(1) Lack of monitoring for transport of dredged material from the
dredging site to the ocean disposal site--The SMMP contains ocean
disposal site use requirements that include automated satellite-based
tracking of the transportation and disposal phases for each trip to
document that no leaking or spilling of dredged material has occurred
during transport and that proper placement occurs at the ocean disposal
site (discharge only within the Surface Disposal Zone at the center of
the overall site).
(2) Observers should be present to authorize disposal operations
after confirming the absence of seabirds, schooling fish, and marine
mammals--The EIS evaluation determined that use of G-DODS would not be
expected to result in long term adverse environmental impact to the
wide-ranging species of seabirds, schooling fish, and marine mammals in
the region offshore of Guam, therefore EPA has not included a
requirement for independent on-board observers. Automated compliance
monitoring would ensure that disposal operations are restricted to the
transportation route to and from the ocean disposal site.
(3) Compounded environmental impacts of repeated disposals per day
if weather days restrict trips to the ocean disposal site to
accommodate one million cubic yards per year--One million cubic yards
represents the maximum disposal volume scenario, which is not expected
to occur every year. No more than one scow would be allowed in the
disposal site at a time, and turbidity impacts following disposal
operations are expected to be localized and temporary (reduced to
background in less than four hours).
Cultural/Environmental Justice
(1) Documentation that indigenous populace of Guam has long
utilized the resources within the waters surrounding Guam for over 3500
years, hence the resource has historic significance and adverse impacts
which may alter beneficial use should be [avoided]--The EIS evaluation
shows that there are no historic resources in deepwater in the vicinity
of G-DODS, and there would be no expected restrictions on historic
uses. As such, there will be no expectation of significant or long term
impacts requiring mitigation.
(2) Designation of an ocean disposal site may result in an
environmental injustice perpetrated against minority and low-income
populations, in this case, the Chamorro people--The EIS evaluation does
not indicate that designation of an offshore ocean disposal site more
than 11 nautical miles offshore will result in any significant or long
term impacts on island residents that would require mitigation.
Nuisance Species
Presence of nuisance species in Apra Harbor has been documented,
and while they are not expected to survive in the deep depths of the
ODMDS, it may be possible for these invasive species to float or drift
back to Guam or other islands areas, exacerbating the problem--
Prevailing currents to the west would prevent these organisms from
drifting back to Apra Harbor or other locations on Guam, and
significant dispersion over longer distance would make survival
unlikely in sufficiently numbers before encountering another island or
land mass to the west.
Vessel Safety and Economics
Due to loss of fishing area as a result of designation of ODMDS,
the fishing community may be forced to travel to other fishing areas
where rescue or other services are not easily available; the change of
fishing habits to unfamiliar may be considered a safety at sea issue as
well as added expense to travel a greater distance to fish--The EIS
evaluation concludes that the site designation does not restrict
fishing in the area and the potential adverse impacts are not expected
with regard to vessel safety and operational costs. The lack of impact
is expected because the frequency of dredged material transport vessels
encountering fishing vessels at the site or along the transit route
from Apra Harbor will be much lower than
[[Page 19317]]
frequency of encounter with other commercial and recreational vessels,
due to the much larger numbers of the latter group.
NEPA/Consultation
(1) Effects of mammals were not fully addressed, (2) consultation
with Western Pacific Regional Fishery Management Council (WPRFMC), and
(3) Essential Fish Habitat--The WPRFMC is not a formal consultation
agency under NEPA. The required consultations were completed with NOAA
and US FWS with regard to seabirds, marine mammals, threatened and
endangered species, fisheries, and essential fish habitat. These
agencies provided recommendations on additional information for EPA's
assessment, contained in the draft EIS, to clarify the basis for
overall conclusion of no significant impacts resulting from designation
of an ODMDS in the marine region offshore of Guam. Additional
information and revisions were incorporated into the final EIS in
accordance with these recommendations. No significant resource issues
were raised by these agencies.
G. Regulatory Requirements
1. Consistency With the Coastal Zone Management Act
Consistent with the Coastal Zone Management Act (CZMA), EPA
prepared a Coastal Zone Consistency Determination (CZCD) document based
on information presented in the site designation DEIS. The CZCD
evaluated whether the action--permanent designation of G-DODS would be
consistent with the provisions of the CZMA. The CZCD was formally
submitted to the Bureau of Statistics and Planning (BSP, Guam's CZM
agency) on July 24, 2009. The BSP staff concurred with EPA's CZCD. The
Proposed Rule is consistent with the CZMA.
2. Endangered Species Act Consultation
During development of the site designation EIS, EPA consulted with
the National Oceanic and Atmospheric Administration (NOAA) Fisheries
and the U.S. Fish and Wildlife Service (FWS) pursuant to the provisions
of the Endangered Species Act (ESA), regarding the potential for
designation and use of the ocean disposal sites to jeopardize the
continued existence of any Federally listed species. This consultation
process is fully documented in the site designation EIS. NOAA and FWS
concluded that proposed designation and use of the disposal site for
disposal of dredged material meeting the criteria for ocean disposal
would not jeopardize the continued existence of any Federally listed
species.
H. Administrative Review
1. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'', and
therefore subject to Office of Management and Budget (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, a sector of 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 principles set forth in
the Executive Order.
This Proposed Rule should have minimal impact on State, local or
Tribal governments or communities. Consequently, EPA has determined
that this Proposed Rule is not a ``significant regulatory action''
under the terms of Executive Order 12866.
2. 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 Proposed
Rule would not establish or modify any information or record-keeping
requirements, but only clarifies existing requirements, it is not
subject to the provisions of the Paperwork Reduction Act.
3. Regulatory Flexibility Act, as Amended by the Small Business
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). The site designation and management actions would only have
the effect of setting maximum annual disposal volume and providing a
continuing disposal option for dredged material. Consequently, EPA's
action 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 Proposed Rule will not
have a significant economic impact on a substantial number of small
entities.
4. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 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
year.
This Proposed 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. The Proposed Rule would only
provide a continuing disposal option for dredged material.
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
Proposed Rule.
5. Executive Order 13132: Federalism
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
[[Page 19318]]
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
This Proposed Rule does not have federalism implications. It 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. The Proposed Rule would only
have the effect of setting maximum annual disposal volumes and
providing a continuing disposal option for dredged material. Thus,
Executive Order 13132 does not apply to this Proposed Rule.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This Proposed Rule does not
have Tribal implications, as specified in Executive Order 13175. The
Proposed Rule would only have the effect of setting maximum annual
disposal volumes and providing a continuing disposal option for dredged
material. Thus, Executive Order 13175 does not apply to this Proposed
Rule.
7. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This Executive Order (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 Proposed 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 reason to believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use Compliance With Administrative Procedure
Act
This Proposed Rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866. The
Proposed Rule would only have the effect of setting maximum annual
disposal volumes and providing a continuing disposal option for dredged
material. Thus, EPA concluded that this Proposed Rule is not likely to
have any adverse energy effects.
9. National Technology Transfer 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 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 Proposed
Rule does not involve technical standards. Therefore, EPA is not
considering the use of any voluntary consensus standards.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. EPA determined that this proposed 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. EPA has assessed the overall protectiveness of designating
the disposal Sites 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.
Dated: April 6, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Region IX.
In consideration of the foregoing, EPA is proposing to amend part
228, chapter I of title 40 of the Code of Federal Regulations as
follows:
PART 228--[AMENDED]
1. The authority citation for part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by adding paragraph (l)(12) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(l) * * *
(12) Guam Deep Ocean Disposal Site (G-DODS)--Region IX.
(i) Location: Center coordinates of the circle-shaped site are:
13[deg] 35.500' North Latitude by 144[deg] 28.733' West Longitude
(North American Datum from 1983), with a radius of 3 nautical miles
(5.6 kilometers).
(ii) Size: 7.1 square nautical miles (24.3 square kilometers).
(iii) Depth: 8,790 feet (2,680 meters).
(iv) Use Restricted to Disposal of: Dredged materials.
(v) Period of Use: Continuing use.
(vi) Restrictions: Disposal shall be limited to a maximum of 1
million cubic yards (764,555 cubic meters) per calendar year of dredged
materials that comply with EPA's Ocean Dumping Regulations; disposal
operations shall be conducted in accordance with requirements specified
in a Site Management and Monitoring Plan developed by EPA and USACE, to
be reviewed periodically, at least every 10 years.
* * * * *
[FR Doc. 2010-8515 Filed 4-13-10; 8:45 am]
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