[Federal Register Volume 74, Number 22 (Wednesday, February 4, 2009)]
[Rules and Regulations]
[Pages 5989-5991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2308]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0121]
RIN 1625-AA11


``McCormick & Baxter'' Regulated Navigation Area, Willamette 
River, Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area on 
the Willamette River, Portland, Oregon. This action is necessary to 
preserve the integrity of the engineered pilot cap placed over 
contaminated sediments as part of an Environmental Protection Agency 
(EPA) Superfund cleanup action at the McCormick & Baxter Creosoting 
Company Superfund Site. This rule is needed to prohibit activities that 
would cause disturbance of pilot cap material, which was placed to 
isolate and contain underlying contaminated sediment.

DATES: This rule is effective March 6, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0121 and are available online by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting USCG-2008-0121 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is also available for inspection or copying at 
two locations: The Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays and U.S. Coast Guard 
Sector Portland, 6767 North Basin Ave., Portland, OR 97217, between 8 
a.m. and 2 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call MST1 Jaime Sayers, U.S. Coast Guard Sector Portland, Waterways 
Management Branch, telephone 503-240-9300. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On June 3, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``McCormick and Baxter Regulated Navigation Area, 
Willamette River, Portland, OR'' in the Federal Register (73 FR 31652). 
We received no letters commenting on the proposed rule. No public 
meeting was requested, and none was held.

Background and Purpose

    The McCormick & Baxter Creosoting Company operated between 1944 and 
1991, treating wood products with creosote, pentachlorophenol and 
inorganic (arsenic, copper, chromium, and zinc) preservative solutions. 
Historically, process wastewaters were discharged directly to the 
Willamette River, and other process wastes were dumped in several areas 
of the Site. Significant concentrations of wood-treating chemicals have 
been found in soil and groundwater at the site and in river sediments 
adjacent to the Site. The EPA listed the Site on the National 
Priorities List (NPL) in June 1994 based on information collected by 
DEQ between September 1990 and September 1992. The EPA also designated 
the DEQ as the lead agency for implementing the selected remedy while 
funding for remedial design and construction was primarily provided by 
EPA. The DEQ implemented a number of interim removal measures between 
1992 and 1994, including plant demolition, sludge and soil removals, 
and extraction of creosote from the groundwater aquifers. The Record of 
Decision (ROD) was issued by WPA and DEQ in April 1996 after 
considering public comments on the Proposed Cleanup Plan. The remedy 
addressed contaminated ground water, soil and sediment. A component of 
the groundwater remedy, initiated in 1994, consisted of an automated 
creosote extraction and groundwater treatment system. However, due to 
poor product recovery and high operating costs, the automated system 
was discontinued in late 2000. Creosote is currently being recovered by 
passive and manual methods. Approximately 6,200 gallons have been 
recovered since 1991. A contingency groundwater remedy was implemented 
in the summer of 2003, with the construction of a combination steel 
sheet pile and soil Bentonite slurry wall surrounding 18 acres. The 
purpose of the barrier wall is to prevent migration of creosote to the 
Willamette River. Implementation of the soil remedy began in March 1999 
with the removal of 33,000 tons of highly contaminated soil and debris. 
The soil remedy was completed in September 2005 following installation 
of a combination impermeable/earthen cap--the impermeable portion 
covering the area within the subsurface barrier wall. The sediment 
remedy was implemented in 2004 and primarily consisted of an armored 
sand cap placed over 23 acres of contaminated sediment. Construction 
occurred during the summers of 2004 and 2005. Sediment cap construction 
performed in 2005 followed construction work performed by the City of 
Portland to stabilize two high pressure sewer lines located within a 
one-acre portion of the sediment cap. In addition to the sand layer, an 
oil adsorptive material known as organophyllic clay was used in two 
creosote seep areas. To protect the cap from erosion, the sand and 
organophyllic clay were armored with a combination of rock and 
articulated concrete blocks. Erosion forces evaluated in designing the 
cap armoring layer included hydraulic-induced stresses due to river 
currents associated with a 500-year flood, vessel-induced propeller 
velocities from a tractor tug and various sized recreational boats, 
wind waves associated with a 100-year wind storm and vessel wakes 
associated with various boats including a 100-ft fireboat traveling at 
14 knots. These forces were evaluated for river level variations due to 
tidal action and flood currents. Additionally, numerical modeling was 
used to analyze wave transformation and capping of the riverbank with 
two feet of topsoil, turf reinforcement matting and herbaceous 
vegetation. Revegitation of the capped riverbank with native trees and 
shrubs took place in February 2006 after the soil had been stabilized 
with the native grasses planted in November 2004. The DEQ has requested 
the issuance of this RNA in order to prohibit activities that may 
damage the engineered sediment cap at the Site. Although the sediment 
cap is designed to withstand a variety of anticipated erosional forces, 
the cap is susceptible to damage, such as from propeller wash, 
deployment of barge spuds, deployment and dragging of anchors, and 
grounding of large vessels. If the engineered sediment cap were to be 
damaged by marine activities, the contaminated sediments which underlie

[[Page 5990]]

the cap could be released to the river thereby posing an unacceptable 
threat to public health and the environment.

Discussion of Comments and Changes

    No comments were received on this rule during the comment period 
such that no changes have been made to the rule.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. The effect of this 
regulation will not be significant based on the fact there will be 
minimal if any effect on the navigable waterway around the regulated 
area due to the regulated navigation area's proximity to the shore. The 
local maritime community will be informed of the regulated navigation 
area via marine informational Notice to Mariners.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule will affect the following entities, some of which 
may be small entities: The owners or operators of vessels intending to 
transit or anchor in a portion of the Willamette River. This rule will 
not have a significant economic impact on a substantial number of small 
entities because the regulated navigation area is limited in size 
leaving ample room for vessels to navigate around the area. Vessels 
engaged in commerce with the existing refueling pipeline located within 
the site should not be affected by this regulation in those activities 
but are advised to minimize potential impacts such as anchoring, wake 
scouring, and dragging in the vicinity of the pilot cap.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of

[[Page 5991]]

Management and Budget, with an explanation of why using these standards 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g. , 
specifications of materials, performance, design, or operation; test 
methods; sampling procedures; and related management systems practices) 
that are developed or adopted by voluntary consensus standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 5100.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded 
under that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
section 2.B.2. Figure 2-1, paragraph (34)(g), of the Instruction and 
neither an environmental assessment nor an environmental impact 
statement is required. This rule involves the establishing, 
disestablishing, or changing Regulated Navigation Areas, and security 
or safety zones. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.1323 to read as follows:


Sec.  165.1323  Regulated Navigation Area: Willamette River Portland, 
Oregon Captain of the Port Zone.

    (a) Location. The following is a regulated navigation area (RNA): 
All waters of the Willamette River encompassed by a line commencing at 
45[deg]34'.33'' N, 122[deg]44'17'' W to 45[deg]34'32'' N, 
122[deg]44'18'' W thence to 45[deg]34'35'' N, 122[deg]44'24'' W thence 
to 45[deg]34'35'' N, 122[deg]44'27'' W thence to 45[deg]34'35'' N, 
122[deg]44'36'' W thence to 45[deg]34'35'' N, 122[deg]44'37'' W thence 
to 45[deg]34'38'' N, 122[deg]44'42'' W to 45[deg]34'39'' N, 
122[deg]44'43'' W thence to 45[deg]34'44'' N, 122[deg]44'51'' W thence 
to 45[deg]34'45'' N, 122[deg]44'53'' W thence to 45[deg]34'47'' N, 
122[deg]44'51'' W thence to 45[deg]34'45'' N, 122[deg]44'46'' W to 
45[deg]34'45'' N, 122[deg]44'45'' W thence to 45[deg]34'47'' N, 
122[deg]44'43'' W thence to 45[deg]34'46'' N, 122[deg]44'42'' W thence 
to 45[deg]34'48'' N, 122[deg]44'40'' W thence to 45[deg]34'48'' N, 
122[deg]44'38'' W and along the shoreline to 45[deg]34'46'' N, 
122[deg]44'39'' W and back to the point of origin. All coordinates 
reference 1983 North American Datum (NAD 83).
    (b) Regulations. (1) Anchoring, spudding, dredging, laying cable, 
dragging, trawling, conducting salvage operations, operating commercial 
vessels of any size, and operating recreational vessels greater than 30 
feet in length are prohibited in the regulated area.
    (2) All vessels transiting or accessing the regulated area shall do 
so at no wake speed or at the minimum speed necessary to maintain 
steerage.

    Dated: December 2, 2008.
J.P. Currier,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. E9-2308 Filed 2-3-09; 8:45 am]
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