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[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Rules and Regulations]
[Pages 75256-75266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27439]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7848-2]

Ocean Disposal; Designation of a Dredged Material Disposal Site 
in Rhode Island Sound

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) today designates the 
Rhode Island Sound Disposal Site (RISDS) in Rhode Island Sound offshore 
of Rhode Island. This action is necessary to provide a long-term 
dredged material disposal site for the current and future disposal of 
dredged material from Rhode Island, southeastern Massachusetts, and 
surrounding harbors (hereinafter referred to as the Rhode Island 
Region, or RIR). The site designation is for an indefinite period of 
time. The RISDS will be subject to continuing monitoring to ensure that 
significant unacceptable, adverse environmental impacts do not occur. 
The action is described in the Rhode Island Region Long-Term Dredged 
Material Disposal Site Evaluation Project Final Environmental Impact 
Statement (FEIS), and the monitoring plan is described in the RISDS 
Site Management and Monitoring Plan (SMMP). The SMMP is provided as 
Appendix C of the FEIS. Site designation does not itself actually 
authorize the disposal of any particular dredged material at a site. 
Proposals to dispose of dredged material at a designated site are 
subject to project-specific reviews and authorization and still must 
satisfy the criteria for ocean dumping.

DATES: This final regulation is effective on January 18, 2005.

ADDRESSES: EPA has established a file supporting this action that 
includes this rule, the FEIS and its appendices, including the SMMP, 
and other supporting documents. This information

[[Page 75257]]

is available for review by the public as follows:
    1. Electronically. You may review and/or obtain electronic copies 
of this document and various support documents from the EPA home page 
at the Federal Register, http://www.epa.gov/fedrgstr/, or on the EPA 
New England Region's homepage at: http://www.epa.gov/region1/eco/ridredge/index.html.
    2. In person. The Final Rule, the Final Environmental Impact 
Statement (FEIS) which includes the SMMP (Appendix C), and the complete 
administrative record for this action are available for inspection at 
the following locations: A. EPA New England Library, 11th Floor, One 
Congress Street, Suite 1100 (CWQ), Boston, MA 02114-2023. For access to 
the documents, call Peg Nelson at (617) 918-1991 between 10 a.m. and 3 
p.m. Monday through Thursday, excluding legal holidays, for an 
appointment. B. EPA Atlantic Ecology Division, Library, 27 Tarzwell 
Drive, Narragansett, RI 02882. For access to the documents, call Mimi 
Johnson at (401) 782-3025 between 10 a.m and 3 p.m. Monday through 
Thursday, excluding legal holidays, for an appointment. The EPA public 
information regulation (40 CFR part 2) provides that a reasonable fee 
may be charged for copying. We also are putting copies of the FEIS in 
all of the town libraries in the coastal towns in Rhode Island and 
southeastern Massachusetts.

FOR FURTHER INFORMATION CONTACT: Ms. Olga Guza, U.S. Environmental 
Protection Agency New England Region, One Congress Street, Suite 1100 
(CWQ), Boston, MA 02114-2023, telephone (617) 918-1542, electronic 
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

    Entities potentially regulated by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material into ocean waters of Rhode Island Sound, under the Marine 
Protection, Research, and Sanctuaries Act, 33 U.S.C. 1401 et seq. 
(hereinafter referred to as the MPRSA) and its implementing 
regulations. The rule is expected to be primarily of relevance to: (a) 
Parties seeking permits from the U.S. Army Corps of Engineers, New 
England District (Corps) to transport dredged material for the purpose 
of disposal into the waters of Rhode Island Sound; and (b) to the Corps 
itself for its own dredged material disposal projects. Potentially 
regulated categories and entities that may seek to use the RIR dredged 
material disposal site may include:

------------------------------------------------------------------------
                                               Examples of potentially
                 Category                        regulated entities
------------------------------------------------------------------------
Federal Government Agencies...............  U.S. Army Corps of Engineers
                                             Civil Works Projects, and
                                             Other Federal Agencies.
Industry and General Public...............  Port Authorities, Marinas
                                             and Harbors, Shipyards, and
                                             Marine Repair Facilities,
                                             Berth Owners.
State, local and tribal governments.......  Governments owning and /or
                                             responsible for ports,
                                             harbors, and /or berths,
                                             Government agencies
                                             requiring disposal of
                                             dredged material associated
                                             with public works projects.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that could potentially 
be regulated by this action. To determine whether your organization is 
affected by this action, you should carefully consider whether your 
organization is required to obtain an MPRSA permit (40 CFR 220.1), and 
you wish to use the RISDS. EPA notes that nothing in this final rule 
alters the jurisdiction or authority of EPA or the types of entities 
regulated under the MPRSA. Questions regarding the applicability of 
this final rule to a particular entity should be directed to the 
contact person listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. Background

    In 1972, the Congress of the United States enacted the MPRSA to 
address and control the dumping of materials into ocean waters. Title I 
of the MPRSA authorized EPA and the Corps to regulate dumping in ocean 
waters. Regulations implementing the MPRSA are set forth at 40 CFR 
parts 220 through 229. With few exceptions, the MPRSA prohibits the 
transportation of material from the United States for the purpose of 
ocean dumping except as may be authorized by a permit or authorization 
(in the case of Corps projects) issued under the MPRSA. The MPRSA 
divides permitting responsibility between EPA and the Corps. Under 
Section 102 of the MPRSA, EPA has responsibility for issuing permits 
for all materials other than dredged material (e.g., vessels, fish 
wastes, burial at sea). Under Section 103 of the MPRSA, the Secretary 
of the Army has the responsibility for issuing permits and 
authorizations (in the case of Corps projects) for the ocean dumping of 
dredged material. This permitting authority has been delegated to the 
District Engineers of the Corps' district offices. Determinations to 
issue permits and authorizations (in the case of Corps projects) for 
dredged material are subject to EPA review and concurrence.
    Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1401 et seq., 
gives the Administrator of EPA authority to designate sites and times 
where ocean disposal, also referred to interchangeably as ocean 
dumping, may be permitted. Section 103(b) further provides that the 
Corps should use such EPA designated sites to the maximum extent 
feasible. EPA's ocean dumping regulations provide that EPA's 
designation of an ocean dumping site is accomplished by promulgation of 
a site designation in 40 CFR part 228 specifying the site. On October 
1, 1986, the Administrator delegated authority to designate ocean 
dredged material disposal sites (ODMDS) to the Regional Administrator 
of the EPA Region in which the sites are located. The RISDS site is 
located within New England (EPA New England); therefore, this action is 
being taken pursuant to the Regional Administrator's delegated 
authority. EPA regulations (40 CFR 228.4(e)(1)) promulgated under the 
MPRSA require, among other things, that EPA designate ocean dredged 
material disposal sites (ODMDS) by promulgation in 40 CFR part 228. 
Designated ocean dumping sites are codified at 40 CFR 228.15.
    On April 30, 2004, EPA published a draft rule and notice of 
availability of a Draft Environmental Impact Statement (DEIS) proposing 
the designation of the RISDS as an ODMDS (69 FR 23706). This final rule 
designates the site for open water disposal of dredged material. This 
site is currently being used by the Corps under the site selection 
authority provided by Section 103 of the MPRSA as Site 69B for disposal 
of dredged material from the Providence River and Harbor Maintenance 
Dredging Project. The site is located in ocean waters of Rhode Island 
Sound approximately nine nautical miles (nmi) south of Point Judith, 
Rhode Island.
    The RISDS will provide a long-term disposal option for the Corps to 
maintain deep-draft, international commerce and navigation through 
authorized Federal navigation projects and to ensure safe navigation 
for public and private entities.
    The RISDS will be subject to continuing site management and 
monitoring to ensure that unacceptable,

[[Page 75258]]

adverse environmental impacts do not occur. The management of the RISDS 
is further described in the SMMP (Appendix C of the FEIS).
    The designation is in accordance with 40 CFR 228.4(e) of the Ocean 
Dumping Regulations, which allows EPA to designate ocean sites for 
disposal of dredged materials.

C. EIS Development

    Section 102(c) of the National Environmental Policy Act (NEPA) of 
1969, 42 U.S.C. 4321 et seq., requires that Federal agencies prepare an 
environmental impact statement (EIS) on proposals for major Federal 
actions significantly affecting environmental quality. The objective of 
NEPA is to build into agency decisionmaking processes careful 
consideration of all environmental aspects of proposed actions, 
including evaluation of reasonable alternatives to the proposed action. 
While NEPA does not apply to EPA activities in designating ocean 
disposal sites under the MPRSA, EPA has voluntarily agreed as a matter 
of policy to conduct a NEPA environmental review in connection with 
ocean dumping site designations. (63 FR 58045, October 29, 1998, 
``Notice of Policy and Procedures for Voluntary Preparation of National 
Environmental Policy Act (NEPA) Documents.'') Consistent with this 
policy, EPA, in cooperation with the Corps, has prepared a FEIS 
entitled, ``Rhode Island Region Long-Term Dredged Material Disposal 
Site Evaluation Project,'' which considers the environmental aspects of 
site designation in ocean waters of Rhode Island Sound. Anyone wishing 
to receive a copy of the FEIS may do so in one of the ways described 
above in the ADDRESSES section.
    The purpose of today's action is to designate an ocean disposal 
site that will meet the long-term dredged material disposal needs in 
the RIR. The appropriateness of ocean disposal for any specific, 
individual dredging project is determined on a case-by-case basis under 
the permit and authorization (in the case of Corps projects) process 
under MPRSA.
    Designation of an ocean disposal site under 40 CFR part 228 is 
essentially a preliminary, planning measure. The practical effect of 
such a designation is only to require that if future ocean disposal 
activity is permitted and/or authorized (in the case of Corps projects) 
under 40 CFR part 227, then such disposal should normally be 
consolidated at the designated sites (See 33 U.S.C. 1413(b)). 
Designation of an ocean disposal site does not authorize any actual 
disposal and does not preclude EPA or the Corps from finding available 
and environmentally preferable alternative means of managing dredged 
materials, or from finding that certain dredged material is not 
suitable for ocean disposal under the applicable regulatory criteria. 
Nevertheless, EPA has determined that it is appropriate to designate an 
ocean disposal site for dredged material in the ocean waters of Rhode 
Island Sound now, because it appears unlikely that feasible alternative 
means of managing dredged material will be available to accommodate the 
quantity of dredged material that is projected to be generated in this 
region in the future.
    Proposals for the ocean disposal of dredged materials from 
individual projects are evaluated by EPA and the Corps on a case-by-
case basis, taking into account all the disposal alternatives available 
at the time of permitting. Beneficial use alternatives will be 
preferred over ocean disposal whenever they are practicable.
    The FEIS describes the purpose and need for the proposed action and 
evaluates a number of alternatives to this action. EPA's analysis of 
alternatives considered several different potential ocean disposal 
sites for dredged material from Rhode Island, southeastern 
Massachusetts, and surrounding harbors, as well as potential 
alternative means of managing these dredged materials other than ocean 
disposal. As described in the FEIS, the initial screening effort was 
established to consider the most environmentally sound, economically 
and operationally feasible area for site designation, termed the ``zone 
of siting feasibility'' (ZSF). Alternatives evaluated included various 
marine sites, upland disposal, beneficial uses, and the no action 
alternative.
    In addition to considering reasonable distances to transport 
dredged material, the ocean disposal analysis considered areas of 
critical resources as well as areas of incompatibility for use as a 
disposal site. This included but was not limited to such factors as the 
sensitivity and value of natural resources, geographically limited 
habitats, fisheries and shellfisheries, natural resources, shipping and 
navigation lanes, physical and environmental parameters, and economic 
and operational feasibility. The analysis was carried out in a tiered 
process. The final tier involved further analysis of the no action 
alternative and the following alternative sites: Site E and Site W (now 
the RISDS). These sites were evaluated and the RISDS was identified as 
the preferred alternative for potential ocean disposal site 
designation. Management strategies were developed for the preferred 
alternative and are described in the SMMP (Appendix C of the FEIS).
    In summary, the NEPA process informed EPA's decision to take the 
current action designating the RISDS as an ODMDS.

D. Site Description

    The RISDS is currently being used by the Corps under its short-term 
site selection authority as Site 69B. Since 2003, Site 69B has received 
approximately 4.5 million cubic yards of dredged material from the 
Providence River and Harbor Maintenance Dredging Project. The RISDS is 
in the same exact location and is the same size as Site 69B. The site 
is approximately one nautical mile by one nautical mile, for a size of 
one square nautical mile (nmi2). The RISDS is located 
approximately nine nmi south of Point Judith, Rhode Island and 
approximately 6.5 nmi east of Block Island, Rhode Island, with depths 
from 115 to128 feet (35 to 39 m). The sediments at the site range from 
glacially derived till to soft, silty sand. The corner coordinates 
(North American Datum 1983: NAD 83) for the RISDS site, are as follows: 
41[deg]14'21'' N, 71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W; 
41[deg]13'21'' N, 71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.

E. Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory 
Requirements

    Five general criteria are used in evaluating possible dredged 
material disposal sites for long-term use under the MPRSA (40 CFR 
228.5).
General Criteria (40 CFR 228.5)
    1. Minimize interference with other activities, particularly 
avoiding fishery areas or major navigation areas (40 CFR 228.5(a)). The 
first of the five general criteria requires that a determination be 
made as to whether the site or its use will minimize interference with 
other uses of the marine environment. For this final rule, a 
determination was made to overlay individual uses and resources over 
GIS bathymetry and disposal site locations. This process was used to 
visually determine the maximum and minimum interferences with other 
uses of the marine environment that could be expected to occur. Areas 
that would interfere with other activities, particularly fishing and 
navigation, were eliminated from further consideration. Sites E and W 
were the only areas left for consideration. The RISDS (Site W) showed 
minimum interference with other activities and was thus selected for 
this proposal. The RISDS is not in an area of distinctive

[[Page 75259]]

lobster, shellfish, or finfish resources and thus will not interfere 
with lobstering or fishing activities. The RISDS is not located in 
shipping lanes or major navigation areas, is not in a geographically 
limited fishery area, and has been selected to minimize interference 
with fisheries, shellfisheries and regions of commercial and 
recreational navigation.
    2. Minimize Changes in Water Quality. Temporary water quality 
perturbations (during initial mixing) caused by disposal operations 
would be reduced to normal ambient levels before reaching areas outside 
of the disposal site (40 CFR 228.5(b)). The second of the five general 
criteria requires that locations and boundaries of disposal sites be 
selected so that temporary changes in water quality or other 
environmental conditions during initial mixing caused by disposal 
operations anywhere within a site can be expected to be reduced to 
normal ambient seawater levels or to undetectable contaminant 
concentrations or effects before reaching beaches, shorelines, 
sanctuaries, or geographically limited fisheries or shellfisheries. The 
RISDS will be used only for dredged material disposal of suitable 
sediments as determined by application of MPRSA criteria. Based on 
model results and data evaluated as part of the FEIS, disposal of 
either sandy or fine-grained material would have no long-term impact on 
water quality at the site. In addition, dredged material deposited at 
the RISDS will not reach any marine sanctuary, beach, or other 
important natural resource area. Further, disposal at the RISDS will be 
managed and monitored in accordance with the SMMP (Appendix C of the 
FEIS) such that there will be no temporary perturbations in water 
quality anywhere outside the site or within the site after allowance 
for initial mixing.
    3. Interim Sites Which Do Not Meet Criteria (40 CFR 228.5 (c)). 
There are no interim sites to be considered under this criterion. The 
RISDS (formerly known as Site 69B) is not an interim site as defined 
under the Ocean Dumping regulations.
    4. Size of sites (40 CFR 228.5(d)). The fourth general criterion 
requires that the size of open water disposal sites be limited to 
localize for identification and control any immediate adverse impacts 
and to permit the implementation of effective monitoring and 
surveillance programs to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation. For this final rule, EPA has determined, 
based on the information presented in the FEIS, that the RISDS 
(formerly known as Site 69B) has been sized to provide sufficient 
capacity to accommodate material dredged from within the RIR and to 
facilitate effective monitoring and surveillance. The site management 
and monitoring plan is described in the RISDS SMMP (Appendix C of the 
FEIS).
    5. EPA must, wherever feasible, designate dumping sites beyond the 
edge of the continental shelf and where historical disposal has 
occurred (40 CFR 228.5(e)). The fifth criterion requires EPA, wherever 
feasible, to designate ocean dumping sites beyond the edge of the 
continental shelf and at other such sites that have historically been 
used. Sites beyond the edge of the continental shelf are not 
economically feasible due to the extended travel time and associated 
expense. In addition, the RISDS encompasses the footprint of Site 69B, 
currently in use. Thus, the RISDS is consistent with this criterion.
    As discussed briefly above, EPA has determined that the RISDS 
satisfies the five general criteria described in 40 CFR 228.5 of the 
EPA Ocean Dumping Regulations. More detailed information relevant to 
these criteria can be found in the FEIS and SMMP.
    In addition to the general criteria discussed above, 40 CFR 
228.6(a) lists 11 specific factors to be used in evaluating a proposed 
disposal site under the MPRSA to assure that the five general criteria 
are met. The RISDS, as discussed below, also is acceptable under each 
of the 11 specific criteria. The evaluation of the preferred disposal 
sites relevant to the five general and 11 specific criteria is 
discussed in substantially more detail in the FEIS and SMMP.
Specific Criteria (40 CFR 228.6)
    1. Geographical Position, Depth of Water, Bottom Topography and 
Distance From Coast (40 CFR 228.6(a)(1)). The RISDS is in the same 
location and is the same size as Site 69B. The RISDS will replace Site 
69B. The site is a square area, approximately one nautical mile by one 
nautical mile, for a size of one nmi2. The RISDS is located 
approximately nine nmi south of Point Judith, Rhode Island and 
approximately 6.5 nmi east of Block Island, Rhode Island, with depths 
from 115 to 128 feet (35 to 39 meters). The sediments at the site range 
from glacially derived till to soft, silty sand. Water depths in the 
surrounding areas are between 110 and 118 feet to the north, east, and 
south of the site. The southeastern portion of the site shoals more 
rapidly than the northern area. The corner coordinates (North American 
Datum 1983: NAD 83) of the RISDS site, are as follows: 41[deg]14'21'' 
N, 71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W; 41[deg]13'21'' 
N, 71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.
    2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2)). The Corps and EPA initiated informal Endangered Species 
Act (ESA) and Essential Fish Habitat (EFH) consultation in January 2003 
and formal consultation with publication of the DEIS in coordination 
with the National Marine Fisheries Service (NMFS) and U.S. Fish and 
Wildlife Service (USFWS). Additional coordination was conducted with 
the Commonwealth of Massachusetts and State of Rhode Island. Through 
these efforts, data has been obtained on current threatened or 
endangered species in the RIR. The plankton community at the RISDS 
includes zooplankton (copepods, larval forms of many species of 
invertebrates and fish, Foraminifera, and Radiolara) and phytoplankton 
(diatoms and dinoflagellates). These organisms display a range of 
abundance by season. The populations at or near the site are not unique 
to the site and are present over most of the RIR. It is expected that 
although small, short-term entrainment losses may occur immediately 
following disposal, no long term, adverse impacts to organisms in the 
water column will occur.
    The benthic community at the RISDS is comprised primarily of 
Annelida, Crustacea, and Mollusca. It is expected that short-term 
reduction in abundance and diversity at the sites may occur immediately 
following disposal, but long term, adverse impacts to benthic organisms 
are not expected to occur. Recovery to levels similar to pre-disposal 
is expected within a few years after disposal.
    The RISDS is located in the ocean waters of Rhode Island Sound, 
which is utilized by more than 116 fish species. Seven species appear 
consistently dominant among all trawl surveys. These were scup, 
butterfish, longfin squid, little skate, winter flounder, silver hake, 
and red hake. Atlantic herring, Atlantic mackerel, and ocean pout also 
were very abundant. It is expected that impacts to finfish resources 
will consist of short-term, local disruptions and the potential loss of 
some individual fish of certain non-migratory species. Most of the 
finfish species are migratory. Several commercially harvested species 
of shellfish occur in the RIR. They are Atlantic surf clams, blue 
mussels, lobster, northern quahogs, ocean quahogs, sea scallops, razor 
clams, and

[[Page 75260]]

whelks. It is expected that impacts to shellfish within the RISDS will 
be short-term and associated with disposal, burial, and loss of habitat 
or food. No impacts to shellfish or finfish resources are anticipated 
outside of the RISDS.
    Many different types of resident, migratory, and coastal birds may 
potentially use the RIR as a feeding habitat or resting area. Dozens of 
marine and coastal birds migrate through Rhode Island Sound annually. 
In addition, the RIR provides limited habitat for most marine mammals 
and reptiles. The species that are frequent or occasional visitors to 
the RIR are harbor porpoises, white-sided dolphins, minke whales, seals 
(harbor, hooded, and harp) and sea turtles (green, Kemp's ridley, 
loggerhead, leatherback and hawksbill).
    There are 16 federally-listed threatened and endangered species and 
five species of ``special concern'' which may utilize the area of the 
RISDS. The threatened and endangered species are: whales (humpback, 
fin, northern right, sperm, blue and sei), turtles (loggerhead, green, 
Kemp's ridley, leatherback, and hawksbill), birds (bald eagle, piping 
plover and roseate tern), and insects (American burying beetle and 
northeastern beach tiger beetle). The species of ``special concern'' 
are: common loon, common tern, arctic tern, least tern, and Leach's 
storm-petrel. Occurrence of these species varies by season. Use of the 
site by whales and birds would be incidental. Sea turtles may be 
present in the RISDS during the summer and fall. It is not expected 
that disposal activities would have any significant adverse effect on 
these species or their critical habitat. With respect to endangered and 
threatened species, informal consultation was conducted with the U.S. 
Fish and Wildlife Service (USFWS) and the National Marine Fisheries 
Service (NMFS). In 2001, EPA prepared a Biological Assessment (BA) for 
selection of Site 69B, which is in the exact same location as the 
RISDS.
    The USFWS and NMFS concurred with EPA's determination that species 
under its jurisdiction would not likely be adversely affected by the 
proposed action. The BA concludes that the proposed action is not 
likely to affect the threatened and endangered species. EPA reinitiated 
threatened and endangered species consultation with NMFS and USFWS as 
part of the designation process of the RISDS. NMFS concurred on April 
8, 2004 and USFWS concurred on April 1, 2004 that there are unlikely to 
be any effects on threatened or endangered species or their critical 
habitat as a result of the proposed action. The BA is available upon 
request by contacting the person listed in the FOR FURTHER INFORMATION 
CONTACT section.
    The RIR provides Essential Fish Habitat (EFH) for 33 finfish and 
five invertebrate species, mostly for adults and juveniles. All of the 
species occur along the northeastern Atlantic Coast of the United 
States and have EFH designated for waters other than those within the 
RIR. In 2001, an EFH assessment was prepared for the selection of Site 
69B. The EFH assessment concludes that the proposed action is not 
likely to affect those waters and substrate necessary to fish for 
spawning, breeding, feeding, or growth to maturity. EPA reinitiated EFH 
consultation with NMFS as part of the designation process of the RISDS. 
NMFS concurred on April 8, 2004 that the proposed action is not likely 
to effect those waters and substrate necessary to fish for spawning, 
breeding, feeding, or growth to maturity. EPA has incorporated the NMFS 
recommendations into the SMMP (appendix C of the FEIS). The EFH 
assessment is available upon request by contacting the person listed in 
the FOR FURTHER INFORMATION CONTACT section. The RISDS is not located 
in areas that provide limited or unique breeding, spawning, nursery, 
feeding, or passage areas.
    3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3). The RISDS is located approximately 8.3 nmi from the 
nearest beach or other amenity area. Modeling and sediment transport 
studies indicate a very low probability that any dredged material 
remaining in the water column following disposal would be transported 
more than one nmi. Plumes would be reduced to background concentrations 
shortly after disposal. Given the rapid dissipation characteristics of 
dredged material plumes and that the vast majority of released 
materials settle to the bottom near the release point, dredged material 
placed at the RISDS would not adversely affect beaches or similar 
amenities. As such, it is expected that impacts would not occur to 
beaches, areas of special concern, parks, natural resources, 
sanctuaries or refuges since they are either land-based or farther than 
8.3 nmi from the proposed disposal site. There also are no marine 
sanctuaries or limited fisheries or shellfisheries at or near the 
RISDS. Therefore, EPA has determined that dredged material disposal at 
the RISDS location should not have any adverse effect on beaches or 
other amenity areas, including wildlife refuges or other areas of 
biological or recreational significance.
    4. Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, Including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)). The RISDS has an estimated capacity of 
approximately 20 million cubic yards. However, there is no disposal 
site capacity volume restriction. The composition of dredged material 
to be disposed at the site is expected to be typical estuarine 
sediments dredged from channels, berths, and marinas from harbors and 
federal navigation areas within the RIR. The disposal of this material 
shall occur at designated buoys or coordinates and would be expected to 
be placed so as to concentrate material from each disposal. This 
placement is expected to help minimize bottom impacts to benthic 
organisms. EPA will make a suitability determination prior to the Corps 
issuing any MPRSA permit or authorization (in the case of Corps 
projects) for disposal at the RISDS. The site will receive only dredged 
material determined to be suitable for ocean disposal that is 
transported by either government or private contractor hopper dredges 
or ocean-going, bottom-dump barges towed by tugboat. Both types of 
equipment release the material at or very near the surface. Dredged 
material placed at the RISDS would not be containerized or packaged.
    Furthermore, it should be emphasized that the RISDS is being 
designated only to receive dredged material; disposal of other types of 
material at these sites will not be allowed. It also should be noted 
that the disposal of certain other types of material is expressly 
prohibited by the MPRSA and EPA regulations (e.g., industrial waste, 
sewage sludge, chemical warfare agents). See, e.g., 33 U.S.C. 1414b; 40 
CFR 227.5(b). For these reasons, no significant adverse impacts are 
expected to be associated with the types and quantities of dredged 
material that may be disposed at the RISDS.
    5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)). 
Surveillance of the site can be accomplished by boat, plane, 
helicopter, disposal inspectors aboard barges, scows, and tugboats, or 
through radar or satellite. This effort would be conducted jointly by 
the EPA, the Corps, and the U.S. Coast Guard. Based on the various 
methods that can be utilized it has been determined that monitoring and 
surveillance are feasible at the RISDS. The site is readily accessible 
for bathymetric surveys and has undergone monitoring, including side-
scan sonar. If field monitoring of the disposal activities is required 
because of a future concern for habitat changes or limited resources, a 
management decision will

[[Page 75261]]

be made by EPA and the Corps, who share the responsibilities of 
managing and monitoring the disposal sites. EPA and the Corps have 
prepared a RISDS SMMP (Appendix C of the FEIS). Monitoring shall be 
completed in accordance with the SMMP. It is expected that revisions to 
the SMMP may be made periodically; revisions will be circulated for 
review, coordinated with the affected states and become final when 
approved by EPA New England Region in conjunction with the Corps' New 
England District. See 33 U.S.C. 1413(c)(3).
    6. Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, Including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)). The RISDS is located within the 
ocean waters of Rhode Island Sound, a water body that is exposed to 
wind and wave energy from the northwest Atlantic Ocean. The dominant 
tidal flow directions are northwest and southeast. The amplitude of the 
tidal velocity decreases with depth (12.7 cm/s at the surface and 7 cm/
s near the bottom. The mean current velocity was 2.5 cm/s directed 
toward the west at mid-depth and 1.6 cm/s toward the west at the 
bottom. A modeling study performed as part of the Providence River and 
Harbor Maintenance Dredging Project EIS examined the likelihood of 
erosion and transport of cohesive sediments proposed for placement at 
Site 69B (now the RISDS), located at a depth of 128 ft. The study 
concluded that a disposal mound placed at 69B would not be dispersive 
under any conditions other then the most severe (50-year return period) 
hurricane; their results, however, were based on an assumption of 
extremely cohesive material and should therefore be viewed as 
potentially under-predicting erosion. Areas of the ZSF between 170 and 
105 ft, including the north-central portion northeast of Block Island, 
were depositional areas with some infrequent sorting and reworking by 
waves and currents. The deepest areas here were the most depositional.
    It is expected that peak wave induced bottom orbital velocities are 
not sufficient to cause significant erosion of dredged material at the 
RISDS. For these reasons, EPA has determined that the dispersal, 
transport and mixing characteristics, and current velocities and 
directions at the RISDS are appropriate to support its designation as a 
dredged material disposal site.
    7. Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)). The RISDS is currently being used for disposal activity 
pursuant to the Corps' short-term site selection authority under 
Section 103(b) of the MPRSA. 33 U.S.C. 1413(b) as Site 69B. This 
generally makes the RISDS preferable to more pristine sites that have 
either not been used or have been used in the more distant past (40 CFR 
228.5(e)). Beyond this, however, EPA's evaluation of data and modeling 
results indicates that these past disposal operations have not resulted 
in unacceptable or unreasonable environmental degradation, and that 
there should be no significant adverse cumulative environmental effects 
from continuing to use the RISDS on a long-term basis.
    8. Interference With Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 
228.6(a)(8)). In evaluating whether disposal activity at the RISDS 
could interfere with shipping, fishing, recreation, mineral extraction, 
desalination, areas of scientific importance and other legitimate uses 
of the ocean, EPA considered both the direct effects from depositing 
dredged material on the ocean bottom at the proposed sites and the 
indirect effects associated with increased vessel traffic that will 
result from transportation of dredged material to the RISDS. Areas that 
raised concerns with respect to these criteria were removed from 
consideration early in the screening process for the FEIS. The RISDS is 
not located in shipping lanes and is not an area of special scientific 
importance, desalination, fish and shellfish culture or mineral 
extraction. Accordingly, depositing dredged material at the RISDS will 
not interfere with any of the activities mentioned in this criterion. 
Increased vessel traffic involved in the transportation of dredged 
material to the disposal site should not impact shipping or activities 
discussed above.
    9. The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or by Trend Assessment or Baseline Surveys 
(40 CFR 228.6(a)(9)). Water and sediment quality analyses conducted at 
the site and experience with past disposal in this region have not 
identified any adverse water quality or ecological impacts from ocean 
disposal of dredged material. Baseline data on which this determination 
is based are further described in the FEIS.
    10. Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Sites (40 CFR 228.6(a)(10)). Based on the 
available evidence, dredged material is not a potential source for the 
development or recruitment of nuisance species at the RISDS. Monitoring 
results and available data indicate that placement of dredged material 
at Site 69B (which is in the same exact location as the RISDS) has not 
extended the range of undesirable living organisms, pathogens, degraded 
areas, or introduced viable non-indigenous species into the area. Local 
opportunistic benthic species characteristic of disturbed conditions 
are expected to be present and abundant at any ocean dredged material 
disposal site in response to physical deposition of sediments. However, 
no recruitment of nuisance species or species capable of harming human 
health or the marine ecosystem is expected to occur at the site.
    11. Existence at or in Close Proximity to the Sites of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)). As part of the site selection for Site 69B, the 
Corps conducted an archaeological assessment entitled, ``Archaeological 
Assessment, Remote Sensing, and Underwater Archaeological Survey for 
the Providence River and Harbor Maintenance Dredging Project, Rhode 
Island, April 12, 2001.'' The archaeological assessment is available 
upon request by contacting the person listed in the FOR FURTHER 
INFORMATION CONTACT section. The assessment determined that no 
significant sites were likely to be found within the areas of interest, 
but there was a potential for historic resources because of known 
shipwrecks in the vicinity. Additional remote sensing studies were 
conducted and no significant cultural resources were identified. 
Coordination between EPA and the Corps and the Commonwealth of 
Massachusetts and State of Rhode Island are detailed in the FEIS. The 
Narragansett Tribe was included as a cooperating agency during the 
development of the FEIS. The Tribe has not raised any objections to the 
final choice of location for the RISDS.

F. Public Comments

    In the preamble to the proposed rule, EPA requested public comment 
by June 21, 2004. EPA held two public hearings attended by an estimated 
total of 50 people.

June 15, 2002, at 1 p.m.: Lighthouse Inn, 307 Great Island Road, 
Galilee, Rhode Island 02882. (One individual presented testimony.)
June 15, 2002, at 7 p.m.: Lighthouse Inn, 307 Great Island Road, 
Galilee, Rhode Island 02882. (Three individuals presented testimony.)

[[Page 75262]]

    In addition to the testimony and comments provided at the hearings, 
EPA also received three sets of written comments on the proposed 
action.
    EPA received both supportive and non-supportive comments. In 
developing the final rule, EPA reviewed and considered all the written 
comments as well as those received verbally at the two public hearings. 
Following are summaries of the most significant comments and EPA's 
responses:
    Designation of the RISDS as a Long-Term Disposal Site was Premature 
When the Currently Selected Site (69B) Would Remain in Effect Until 
2013. This project was initiated at the written request on the Governor 
of Rhode Island in September 2000. There was a concern that the 
navigational needs of the region were not being met due to the lack of 
viable disposal options. In addition, there also was a concern that 
additional disposal sites, other than Site 69B, could be selected for 
disposal of dredged material. There are several advantages, including 
environmental reasons, to a designated long-term disposal site, rather 
than a selected site (i.e., the current Site 69B). The site designation 
process evaluates the cumulative impacts of placing dredged material 
from the RIR at the site. In contrast, the site selection process 
requires only project-specific and individual action review of the 
environmental consequences at the disposal site associated with its use 
and not an evaluation of cumulative impacts of all potential projects. 
An EPA-designated site also must have a Site Monitoring and Management 
Plan (SMMP), whereas a selected site is not required to have a SMMP. 
Moreover, the EPA designation process evaluates dredging needs over 
long planning horizons, while the site selection process evaluates each 
proposed dredging project on a project-specific basis. Designating a 
single long-term site would limit the ocean floor footprint that would 
be disturbed, whereas having additional sites selected would 
potentially impact more of the ocean bottom.
    The DEIS Relies Extensively on Outdated Baseline Data Used by the 
USACE to Select Site 69B. The commenter incorrectly assumed that this 
DEIS relied only on surveys conducted as part of the Providence River 
and Harbor Maintenance Dredging Project EIS and that no other surveys 
were conducted. The DEIS contains references and information from 
numerous baseline studies that were conducted in 2001-2003 in support 
of the RIR EIS. These surveys included: bathymetry, physical 
oceanography, water quality, side scan sonar, sediment profile imaging, 
benthic infauna, sediment chemistry, finfish trawls and chemistry, 
lobster trawls and chemistry, shellfish tows, and chemistry. A complete 
listing of surveys conducted is provided in Section 9 of the DEIS. 
Information from these surveys is used and referenced throughout 
Sections 3 and 4 of the DEIS to establish a baseline for assessing 
potential environmental impacts. Survey plans, survey reports, and data 
reports were prepared for each of the baseline surveys and approved by 
EPA and the Corps. As part of the public review process, these data 
reports also were made available to the public at two repositories and 
were posted on the project Web page: (http://www.epa.gov/ne/eco/ridredge/index.html). The availability of this information was 
published in the Project Public Notice of Availability.
    The Rulemaking Should Limit the RISDS Capacity to 8.8 Million Cubic 
Yards or Less. EPA believes the comment was based on the estimated 
dredging needs derived from a survey of potential users, including the 
Corps. Based on that survey, the estimated dredging needs would 
generate approximately 8.8 million cubic yards of dredged material. 
However, there is a strong likelihood of additional needs in the 
future, due in part to the fact that only about 40 percent of the 
potential users responded to the survey. The capacity of the disposal 
site should not be limited to the current estimate of dredging needs.
    The analysis in the DEIS calculated that the preferred alternative 
has an estimated physical consolidated capacity of 20 million cubic 
yards. The evaluation of impacts conducted in the DEIS was performed 
assuming that up to 20 million cubic yards would be disposed of at the 
proposed site. The current disposal from the Providence River and 
Harbor Maintenance dredging project (projected to be 5.5 million cubic 
yards) also was taken into consideration.
    The SMMP reflects that the estimated capacity of the site, as 
designated by the specified boundaries, is approximately 20 million 
cubic yards. This is just an estimated capacity; there is no capacity 
restriction on the RISDS.
    EPA carefully considered and responded to each comment it received 
on the FEIS. A complete Response to Comments Document (Appendix D of 
the FEIS) has been prepared which contains all the comments received 
and EPA's responses to each of these comments. That document is 
available for viewing at the locations specified in the ADDRESSES 
section.

G. Action

    The FEIS concludes that the RISDS (currently known as Site 69B) may 
appropriately be designated for long-term use as a dredged material 
ocean disposal site. The site is compatible with the general and 
specific factors used for site evaluation.
    EPA is publishing this Final Rule to finalize the designation of 
the RISDS as an EPA-approved dredged material ocean disposal site. The 
monitoring and management of requirements that will apply to this site 
are described in the draft SMMP (Appendix C of the FEIS). Management 
and monitoring will be carried out by EPA New England in conjunction 
with the Corps' New England District.
    It should be emphasized that an ocean disposal site designation 
does not constitute or imply Corps or EPA approval of open water 
disposal of dredged material from any specific project. Before disposal 
of dredged material at the site may commence, EPA and the Corps must 
evaluate the proposal according to the ocean dumping regulatory 
criteria (40 CFR part 227) and authorize disposal. EPA has the right to 
disapprove of the actual disposal, if it determines that environmental 
requirements under the MPRSA have not been met.
    The information generated for this project and referenced in the 
FEIS is available for review on line at the address: http://www.epa.gov/region1/eco/ridredge/index.html.

H. Supporting Documents

    1. EPA Region 1/USACE NED. 2004. Draft Environmental Impact 
Statement Rhode Island Region Long-Term Dredged Material Disposal Site 
Evaluation Project. April, 2004.
    2. EPA Region 1/USACE New England District. 2004. Final 
Environmental Impact Statement Rhode Island Region Long-Term Dredged 
Material Disposal Site Evaluation Project. October, 2004.
    3. EPA/USACE. 1991. Evaluation of Dredged Material Proposed for 
Ocean Disposal-Testing Manual. Environmental Protection Agency, 
Washington, DC, and U.S. Army Corps of Engineers, Washington, DC. EPA-
503/8-91/001. February 1991.
    4. EPA Region 1/USACE/NED (New England District). 2004. Regional 
Implementation Manual for the Evaluation of Dredged Material Proposed 
for Disposal in New England Waters. U.S. Army Corps of Engineers New 
England District and

[[Page 75263]]

Environmental Protection Agency Region 1, Boston, MA. April 2004.
    5. Memorandum to the File from Olga Guza. Subject: Small Businesses 
Applications to Place Dredged Material at Site 69B. September 28, 2004.

I. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in 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 entitlement, 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.
    After considering the anticipated effects of this action in 
relation to these criteria, EPA has determined that it is not a 
``significant regulatory action'' under Executive Order 12866 and is 
therefore not subject to OMB review.
2. Paperwork Reduction Act
    Revised in 1995, the PRA is managed by the Office of Management and 
Budget through its approval of Information Collection Requests (ICRs) 
submitted by Federal agencies. The statute was written and revised to 
reduce the information collection burden on the public.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9.
    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, 
et seq.) because it would not require persons to obtain, maintain, 
retain, report, or publicly disclose information to or for a Federal 
agency.
3. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et 
seq.
    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
For the purposes of assessing the impacts of today's rule on small 
entities, a small entity is defined as: (1) A small business based on 
the Small Business Administration's (SBA) size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. EPA has determined that this action will not 
have a significant adverse economic impact on small entities because 
the ocean disposal site designation does not regulate small entities. 
The site designation will only have the effect of providing a long-
term, environmentally acceptable disposal option for dredged material. 
This action will help to facilitate the maintenance of safe navigation 
on a continuing basis. After considering the economic impacts of 
today's final rule on small entities, it has been determined that this 
action will not have a significant adverse economic impact on a 
substantial number of small entities.
4. The Unfunded Mandates Reform Act and Executive Order 12875
    Title II of the Unfunded Mandates Reform Act (UMRA), 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 one year. 
Before promulgating an EPA rule for which a written statement is 
needed, Section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of Section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
Section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that today's action contains no Federal mandates 
(under the regulatory provisions of Title II of the UMRA) for State, 
local and tribal governments or the private sector. It imposes no new 
enforceable duty on any State, local or tribal governments or the 
private sector. Similarly, EPA also has determined that this final rule 
contains no regulatory requirements that might significantly or 
uniquely affect small government entities. Thus, the requirements of 
section 203 and 205 of the UMRA do not apply to this rule.
5. Executive Order 13132: Federalism
    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an

[[Page 75264]]

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'' are defined in the Executive Order to include 
regulations that have, ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This final 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. This final rule addresses the 
designation of an ocean disposal site in Rhode Island Sound for the 
potential disposal of dredged material. This action neither creates new 
obligations nor alters existing authorizations of any State, local or 
governmental entities. Thus, Executive Order 13132 does not apply to 
this rule. Although Section 6 of the Executive Order 13132 does not 
apply to this final rule, EPA did consult with representatives of State 
and local governments in developing this rule. In addition, and 
consistent with Executive Order 13132 and EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically solicited comments on the proposed rule from State and 
local officials. A summary of the concerns raised during that 
consultation and EPA's response to those concerns is provided in 
sections C and D of this preamble.
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 6, 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.'' ``Policies that have Tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal government and 
the Indian Tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian Tribes.''
    This final rule does not have Tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian Tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
This final rule designates an ocean dredged material disposal site and 
does not establish any regulatory policy with tribal implications. 
Thus, Executive Order 13175 does not apply to this rule. Although 
Executive Order 13175 does not apply to this rule, EPA consulted with 
tribal officials in developing this rule, particularly as it relates to 
potential impacts to historic or cultural resources. EPA specifically 
solicited additional comment on the proposed rule from tribal officials 
but didn't receive any.
7. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks
    Executive Order 13045 (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 might have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health and 
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 the Agency. This final 
rule is not an economically significant rule as defined under Executive 
Order 12866 and does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. Therefore, it is not subject to Executive Order 13045.
8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use
    This final 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.
9. National Technology Transfer Advancement Act
    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus 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 final rule 
does not involve technical standards. Therefore, EPA did not consider 
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 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency must conduct its programs, 
policies, and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, national origin, or income 
level.
    No action from this final rule would have a disproportionately high 
and adverse human health and environmental effect on any particular 
segment of the population. In addition, this rule does not impose 
substantial direct compliance costs on those communities. Accordingly, 
the requirements of Executive Order 12898 do not apply.
11. Congressional Review Act
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in

[[Page 75265]]

the Federal Register. A ``major rule'' cannot take effect until 60 days 
after it is published in the Federal Register. This action is not a 
major rule as defined by 5 U.S.C. 804(2). This rule will be effective 
January 18, 2005.
12. National Environmental Policy Act of 1969
    Section 102(c) of the National Environmental Policy Act of 1969, 
Section 4321 et seq., (NEPA) requires Federal agencies to prepare 
environmental impact statements (EIS) for major Federal actions 
significantly affecting the quality of the human environment. The 
object of NEPA is to build into the Agency decisionmaking process 
careful consideration of all environmental aspects of proposed actions. 
Although EPA ocean dumping program activities have been determined to 
be ``functionally equivalent'' to NEPA, it is EPA policy to voluntarily 
follow NEPA procedures when designating ocean dumping sites (63 FR 
58045, October 29, 1998). In addition to the Notice of Intent published 
in the Federal Register on April 6, 2001 (66 FR 18244), EPA and the 
Corps published legal notices in local newspapers and issued a press 
release inviting the public to participate in DEIS scoping meetings. 
Formal scoping meetings were conducted on May 17, 2001 and May 22, 
2001. In addition EPA and the Corps have held public workshops and 
several working group meetings. A DEIS entitled, ``Rhode Island Region 
Long-Term Dredged Material Disposal Site Evaluation Project,'' was 
issued on April 30, 2004. A FEIS entitled, ``Rhode Island Region Long-
Term Dredged Material Disposal Site Evaluation Project,'' was issued on 
October 22, 2004. The FEIS includes a Response to Comments Document 
(Appendix D) and final SMMP (Appendix C).
    In addition, EPA submitted a Coastal Zone Consistency Determination 
to the State of Rhode Island on September 21, 2004. Coordination 
efforts with NMFS and USFWS for ESA and EFH consultation was completed 
on April 8 and April 1, respectively, during the DEIS process.
13. The Endangered Species Act
    Under Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 
1536(a)(2), Federal agencies are required to ``insure that any action 
authorized, funded, or carried on by such agency * * * is not likely to 
jeopardize the continued existence of any endangered or threatened 
species or result in the destruction or adverse modification of habitat 
of such species * * *.'' Under regulations implementing the Endangered 
Species Act, a Federal agency is required to consult with either the 
U.S. Fish and Wildlife Service or the National Marine Fisheries Service 
(depending on the species involved) if the agency's action ``may 
affect'' endangered or threatened species or their critical habitat (50 
CFR 402.14(a)).
    In 2001, EPA prepared a BA for the selection of Site 69B, which is 
in the exact same location as the RISDS. EPA reinitiated threatened and 
endangered species consultation with NMFS and USFWS as part of the 
designation process of the RISDS. NMFS concurred on April 8, 2004 and 
USFWS concurred on April 1, 2004 that there are unlikely to be any 
effects on threatened or endangered species or their critical habitat 
as a result of the proposed action. The USFWS and NMFS concurred with 
EPA's determination that species under its jurisdiction would not 
likely be adversely affected by the proposed action. The BA concludes 
that the proposed action is not likely to affect threatened and 
endangered species. The BA is available upon request by contacting the 
person listed in the For Further Information Contact section.
14. Magnuson-Stevens Fishery Conservation and Management Act
    The 1996 Sustainable Fisheries Act amendments to the Magnuson-
Stevens Fishery Conservation and Management Act (MSFCMA) require the 
designation of essential fish habitat (EFH) for federally managed 
species of fish and shellfish. Pursuant to section 305(b)(2) of the 
MSFCMA, Federal agencies are required to consult with the National 
Marine Fisheries Service (NMFS) regarding any action they authorize, 
fund, or undertake that may adversely affect EFH. An adverse effect has 
been defined by the Act as follows: ``Any impact which reduces the 
quality and/or quantity of EFH. Adverse effects may include direct 
(e.g., contamination or physical disruption), indirect (e.g., loss of 
prey, reduction in species' fecundity), site-specific or habitat-wide 
impacts, including individual, cumulative, or synergistic consequences 
of actions.'' In 2001, an EFH assessment was prepared for the selection 
of Site 69B (the RISDS). EPA reinitiated EFH consultation with NMFS as 
part of the designation process of the RISDS. NMFS concurred on April 
8, 2004 that the designation of the RISDS is not likely to affect those 
waters and substrate necessary to fish for spawning, breeding, feeding, 
or growth to maturity. EPA has incorporated NMFS recommendations into 
the SMMP (appendix C of the FEIS). The EFH assessment concludes that 
the proposed action is not likely to affect those waters and substrate 
necessary to fish for spawning, breeding, feeding, or growth to 
maturity. The EFH assessment is available upon request by contacting 
the person listed in the FOR FURTHER INFORMATION CONTACT section.
15. Plain Language Directive
    Executive Order 12866 requires each agency to write all rules in 
plain language. EPA has written this final rule in plain language to 
make this final rule easier to understand.
16. Executive Order 13158: Marine Protected Areas
    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to 
``expeditiously propose new science-based regulations, as necessary, to 
ensure appropriate levels of protection for the marine environment.'' 
EPA may take action to enhance or expand protection of existing marine 
protected areas and to establish or recommend, as appropriate, new 
marine protected areas. The purpose of the Executive Order is to 
protect the significant natural and cultural resources within the 
marine environment, which means ``those areas of coastal and ocean 
waters, the Great Lakes and their connecting waters, and submerged 
lands thereunder, over which the United States exercises jurisdiction, 
consistent with international law.''
    Today's final rule implements Section 103 of the MPRSA, which 
requires that permits for dredged material are subject to EPA review 
and concurrence. The final rule will amend 40 CFR 228.15 by 
establishing the RISDS. As such, this final rule will afford additional 
protection of aquatic organisms at individual, population, community, 
or ecosystem levels of ecological structures. Therefore, EPA expects 
today's final rule will advance the objective of the Executive Order to 
protect marine areas.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: December 8, 2004.
Robert W. Varney,
Regional Administrator, EPA New England.

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In consideration of the foregoing, EPA is amending part 228, chapter I 
of title 40 of the Code of Federal Regulations as follows:

[[Page 75266]]

PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING

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1. The authority citation for part 228 continues to read as follows:

    Authority: 33 U.S.C. 1412 and 1418.

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2. Section 228.15 is amended by adding paragraph (b) (3) to read as 
follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (b) * * *
    (3) Rhode Island Sound Disposal Site (RISDS).
    (i) Location: Corner Coordinates (NAD 1983): 41[deg]14'21'' N, 
71[deg]23'29'' W; 41[deg]14'21'' N, 71[deg]22'09'' W; 41[deg]13'21'' N, 
71[deg]23'29'' W; 41[deg]13'21'' N, 71[deg]22'09'' W.
    (ii) Size: One square nautical mile.
    (iii) Depth: Ranges from 115 to 128 feet (35 to 39 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material. 
Disposal shall comply with conditions set forth in the most recent 
approved Site Management and Monitoring Plan.
* * * * *
[FR Doc. 04-27439 Filed 12-15-04; 8:45 am]
BILLING CODE 6560-50-P
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