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Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37219 

availability, it plans to consider 

whatever data are available. 

As part of the Agency’s evaluation, it 

plans to examine, at a minimum, the 

following classes of facilities: hazardous 

waste generators, hazardous waste 

recyclers, metal finishers, wood 

treatment facilities, and chemical 

manufacturers. This list may be revised 

as the Agency’s evaluation proceeds. 

EPA is currently scheduled to complete 

and publish in the Federal Register a 

notice addressing additional classes of 

facilities the Agency plans to evaluate 

regarding financial responsibility 

requirements under CERCLA Section 

108(b) by December 2009, and, at that 

time, will solicit public comment. 

VII. Conclusion 

Based upon the Agency’s analysis and 

review, it concludes that hardrock 

mining facilities, as defined in this 

notice, are those classes of facilities for 

which EPA should identify and first 

develop requirements pursuant to 

CERCLA Section 108(b). EPA will 

carefully examine specific activities, 

processes, and/or metals and minerals 

in order to determine what proposed 

financial responsibility requirements 

may be appropriate. As part of this 

process, EPA will conduct a close 

examination and review of existing 

Federal and State authorities, policies, 

and practices that currently focus on 

hardrock mining activities.50 

Dated: July 10, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–16819 Filed 7–27–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8932–9] 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes in Jefferson 

Parish, LA 

AGENCY: Environmental Protection 

Agency (EPA). 

50 As part of developing proposed and final rules 

the Agency will consider whether hardrock mining 

facilities which have a RCRA Part B permit or are 

subject to interim status under RCRA Subtitle C and 

already are subject to RCRA financial assurance and 

facility-wide corrective action requirements need to 

also be subject to the financial responsibility 

requirements under Section 108(b) of CERCLA. In 

addition, EPA is aware and will consider in its 

development of proposed and final rules, that 

mining on Federal land triggers either the Bureau 

of Land Management’s (BLM) Part 3809 regulations 

(43 CFR Part 3809) and the Forest Service’s Part 228 

regulations (36 CFR Part 228), both have financial 

responsibility requirements that cover reclamation 

costs. Many States also have reclamation laws. 

ACTION: Notice. 

SUMMARY: This is a notice of EPA’s 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes to allow for the 

discharge of dredged or fill material for 

the purpose of the construction of the 

West Closure Complex as part of the 

larger flood protection project for the 

greater New Orleans area. EPA believes 

that this Final Determination for 

modification achieves a balance 

between the national interest in 

reducing overwhelming flood risks to 

the people and critical infrastructure of 

south Louisiana while minimizing any 

damage to the Bayou aux Carpes CWA 

Section 404(c) site to the maximum 

degree possible in order to avoid 

unacceptable adverse effects. 

DATES: Effective Date: The effective date 

of the Final Determination for 

Modification was May 28, 2009. 

ADDRESSES: U.S. Environmental 

Protection Agency, Office of Water, 

Wetlands Division, Mail code 4502T, 

1200 Pennsylvania Ave, NW., 

Washington, DC 20460. The following 

documents used in the Bayou aux 

Carpes modification are listed on the 

EPA Wetlands Division Web site at 

http://www.epa.gov/owow/wetlands/ 

regs/404c.html: New Orleans District of 

the Corps letter dated November 4, 

2008, requesting that EPA modify the 

Bayou aux Carpes CWA Section 404(c) 

designation; Public Notice of Proposed 

Determination to modify the Bayou aux 

Carpes CWA Section 404(c) designation 

published in the Federal Register on 

January 14, 2009; April 2, 2009, 

Recommended Determination (RD) for 

modification of the Bayou aux Carpes 

404(c) action; and the May 28, 2009, 

Modification of the 1985 Clean Water 

Act Section 404(c) Final Determination 

for Bayou aux Carpes. Additional 

documents that are related to the Bayou 

aux Carpes modification can be located 

on the U.S. Army Corps of Engineers 

New Orleans District Web site at 

http://www.nolaenvironmental.gov/ 

projects/usace_levee/IER.aspx? 

IERID=12. 

Publicly available document materials 

are available either electronically 

through http://www.regulations.gov or 

in hard copy at the Water Docket, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Water 

Docket is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Clay Miller at (202) 566–1365 or by email at miller.clay@epa.gov. Additional 

information and copies of EPA’s Final 

Determination for Modification are 

available at http://www.epa.gov/owow/ 

wetlands/regs/404c.html or http:// 

www.nolaenvironmental.gov/projects/ 

usace_levee/IER.aspx?IERID=12. 

SUPPLEMENTARY INFORMATION: Section 

404(c) of the Clean Water Act (CWA) (33 

U.S.C. 1251 et seq) authorizes EPA to 

prohibit, restrict, or deny the 

specification of any defined area in 

waters of the United States (including 

wetlands) as a disposal site for the 

discharge of dredged or fill material 

whenever it determines, after notice and 

opportunity for public hearing, that 

such discharge into waters of the United 

States will have an unacceptable 

adverse effect on municipal water 

supplies, shellfish beds and fishery 

areas (including spawning and breeding 

areas), wildlife, or recreational areas. 

Congress directed the U.S. Army 

Corps of Engineers (Corps) to enhance 

the existing Lake Pontchartrain and 

Vicinity Hurricane Protection project 

and the West Bank and Vicinity 

Hurricane Protection project to the 100-

year level of protection. One section of 

this much larger project is within the 

Bayou aux Carpes area that is subject to 

a 1985 EPA CWA Section 404(c) action 

that prohibited the discharge of dredged 

or fill material in the Bayou aux Carpes 

site south of the New Orleans metro 

area. On November 4, 2008, the New 

Orleans District of the Corps requested 

a modification of the Bayou aux Carpes 

CWA Section 404(c) designation to 

accommodate discharges to the Bayou 

aux Carpes wetlands associated with the 

proposed enhanced levee system in 

Jefferson Parish, Louisiana. 

In evaluating the Corps of Engineers 

proposal for modification of the 1985 

Bayou aux Carpes CWA Section 404(c) 

Final Determination, the key elements 

of a Section 404(c) process were 

followed. These include a hearing and 

opportunity for the public to provide 

written comments, preparation and 

submittal of a Recommended 

Determination proposed by EPA Region 

6 to EPA Headquarters, and a Final 

Determination for Modification issued 

by EPA Headquarters. 

Background 

On October 16, 1985, EPA issued a 

Final Determination pursuant to Section 

404(c) of the Clean Water Act restricting 

the discharge of dredged or fill material 

in the Bayou aux Carpes site, Jefferson 

Parish, Louisiana, based on findings that 

the discharges of dredged or fill material 

into that site would have unacceptable 
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37220 Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 

adverse effects on shellfish beds and 

fishery areas (including spawning and 

breeding areas), wildlife, and 

recreational areas. EPA published a 

CWA Section 404(c) Final 

Determination prohibiting, with three 

exceptions, future discharges of dredged 

or fill material to wetlands into the 

Bayou aux Carpes site at 50 FR 47267 

(November 15, 1985). The first 

exception was for discharges associated 

with the completion of the Corps 

modified design for the Harvey Canal— 

Bayou Barataria Levee Project. The 

second exception was for discharges 

associated with routine operation and 

maintenance of the Southern Natural 

Gas Pipeline. The third exception 

covered discharges associated with EPA 

approved habitat enhancement 

activities. The CWA Section 404(c) 

action was based upon a thorough 

record of investigations, including field 

surveys, remote sensing, and other 

technical analyses conducted by three 

EPA facilities, the U.S. Fish and 

Wildlife Service (USFWS), the National 

Park Service (NPS), and the Louisiana 

State University (LSU) Center for 

Wetland Resources. 

After completion of the Final 

Determination, several requests for 

modifications were reviewed by EPA. 

The one request that was granted was 

for an emergency exception to bury an 

existing pipeline deeper via horizontal 

drilling techniques as a response to 

unstable soil conditions and a leaking 

pipeline. Shell Pipe Line Corporation 

(Shell) petitioned EPA for 

reconsideration of exceptions identified 

in EPA’s 1985 Final Determination 

concerning the Bayou aux Carpes site on 

December 18, 1991. Shell requested a 

modification to the Final Determination 

in order to (1) temporarily discharge 

dredged or fill material associated with 

performing emergency work to relocate 

an existing below ground pipeline 

located in the restricted Section 404(c) 

area; and (2) exclude from the Bayou 

aux Carpes Section 404(c) restriction 

future discharges associated with 

routine operation and maintenance of 

this pipeline. On February 28, 1992, 

Shell’s request for modification was 

approved by the EPA Assistant 

Administrator for Water on the basis 

that relocating the pipeline to nonwetlands was infeasible from the 

perspectives of engineering alternatives 

and public safety, the work would have 

only minimal and temporary impacts on 

the wetlands, and the work was 

essentially the same as that envisioned 

under the second exception granted in 

the 1985 Final Determination (57 FR 

3757). 

As a result of the residential, 

commercial, and industrial damage 

caused by Hurricanes Katrina and Rita 

in 2005, Congress directed the Corps to 

enhance the existing Lake Pontchartrain 

and Vicinity Hurricane Protection 

project and the West Bank and Vicinity 

Hurricane Protection project to the 100-

year level of protection, as determined 

by the Federal Emergency Management 

Agency (FEMA). The overall Corps 

project to provide protection to southern 

Louisiana involves two large levee 

systems, the West Bank and Vicinity 

Hurricane Protection Project and the 

Lake Pontchartrain and Vicinity 

Hurricane Protection Project, and 

approximately 350 miles of earthen 

levees and floodwalls throughout five 

parishes in the New Orleans 

metropolitan area. One section of this 

much larger project is within the Bayou 

aux Carpes area. The Corps’ proposal for 

providing increased hurricane and 

storm damage risk reduction for this 

area does not fall within one of the 

previously established exceptions to the 

Section 404(c) Final Determination. 

Since the construction of the Corps’ 

project would result in discharges of 

dredged or fill material within the 

Bayou aux Carpes site, a request for 

modification of 1985 EPA’s Final 

Determination was submitted for 

consideration and final decision. 

On November 4, 2008, the New 

Orleans District of the Corps requested 

a modification to the 1985 EPA action, 

which prohibited the discharge of 

dredged or fill material in the Bayou aux 

Carpes site south of the New Orleans 

metro area. The Corps requested that 

EPA modify the Bayou aux Carpes CWA 

Section 404(c) designation to 

accommodate discharges to the Bayou 

aux Carpes wetlands associated with the 

proposed enhanced levee system in 

Jefferson Parish, Louisiana. The project 

known as the West Closure Complex 

proposes the construction of a ‘‘T-wall’’ 

style floodwall in lieu of an earthen 

levee in order to minimize the footprint. 

A berm to protect the floodwall from 

barge collisions would be constructed 

on the water side of the floodwall and 

would serve as a maintenance access 

road. The floodwall would be built from 

the water side to reduce construction 

impacts. 

The placement of the wall within a 

100 foot by 4,200 foot corridor on a 

previously impacted area of the Bayou 

aux Carpes site, along with the 

commitment by the Corps to augment 

the design as necessary to enhance the 

hydrology of the Bayou aux Carpes 

404(c) area to offset any potential 

impacts due to construction, provides 

the most practical approach from an 

environmental perspective while 

ensuring the 100-year level of risk 

reduction is accomplished. Construction 

of the proposed action would impact 

less than 10 acres within the Bayou aux 

Carpes 404(c) boundary. 

EPA carefully reviewed the proposal 

and the information submitted by the 

New Orleans District of the Corps, 

comments received pursuant to the 

notice published in the Federal Register 

and public hearing held in New 

Orleans, and the existing Bayou aux 

Carpes administrative record. On 

January 14, 2009, EPA posted a notice 

in the Federal Register announcing a 

public comment period on the request 

by the New Orleans District of the Corps 

to amend the 1985 Bayou aux Carpes 

CWA Section 4040(c) Final 

Determination. There were 25 written 

comments received from individuals 

and organizations that included 

opinions about whether the 

modification should be granted or 

denied, consideration of a project 

alternative that would avoid all impacts 

to the Bayou aux Carpes site, the need 

for a detailed mitigation plan to be 

included, the need to thoroughly 

research and plan mitigation and 

augmentation features, and the need for 

a long-term monitoring plan. A public 

hearing was held on February 11, 2009. 

Thirteen people spoke at the hearing, 

and raised issues about the larger plans 

for providing upgraded hurricane and 

storm damage risk reduction for a 

portion of the West Bank and Vicinity 

Hurricane Protection Levee system as 

well as whether EPA should grant the 

modification. 

Conclusion 

The West Closure Complex project 

sited on the Bayou aux Carpes area is a 

part of a much larger project with the 

intent to reduce flood risks to the 

250,000 people living on the west bank 

of the Mississippi River and to 

infrastructure supporting the greater 

New Orleans area by building a more 

resilient and reliable storm damage and 

risk reduction system, as directed by 

Congress. In an effort to reconcile the 

potentially conflicting goals of increased 

flood protection and ecological 

protection, the Corps and EPA worked 

closely together and with other Federal 

partners, State and local agencies, and 

many stakeholders in an effort to 

understand fully the possibilities for 

accommodating these dual objectives. 

Having worked closely with the Corps 

and other resource agencies on the 

evaluation of the environmental aspects 

of this segment of the overall West Bank 

and Vicinity project upgrade, EPA 

agreed with the Corps’ conclusion that 
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Federal Register / Vol. 74, No. 143 / Tuesday, July 28, 2009 / Notices 37221 

there is no reasonable and less 

environmentally damaging practicable 

alternative for achieving the 

Congressional directive than to locate a 

sector gate adjacent to the Bayou aux 

Carpes CWA 404(c) site. 

In consideration of the above 

information, EPA believes that 

compelling circumstances justify a 

modification of the 1985 Bayou aux 

Carpes CWA Section 404(c) designation, 

that there are no less environmentally 

damaging practicable alternatives that 

would adequately address those 

circumstances, and that all feasible 

means of minimizing adverse wetland 

effects to the Bayou aux Carpes site will 

be implemented. Therefore, EPA is 

modifying the 1985 Bayou aux Carpes 

CWA 404(c) Final Determination with 

conditions to allow for discharges 

associated with construction of the West 

Closure Complex on the Bayou aux 

Carpes site as described in the Corps’ 

November 4, 2008, request for 

modification. EPA believes that this 

Final Determination for modification 

achieves a balance between the national 

interest in reducing overwhelming flood 

risks to the people and critical 

infrastructure of south Louisiana while 

minimizing any damage to the Bayou 

aux Carpes CWA Section 404(c) area to 

the maximum degree possible in order 

to avoid unacceptable adverse effects. 

Dated: July 21, 2009. 

Michael H. Shapiro, 

Acting Assistant Administrator for Water. 

[FR Doc. E9–17928 Filed 7–27–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8935–8] 

Notice of a Project Waiver of Section 

1605 (Buy American Requirement) of 

the American Recovery and 

Reinvestment Act of 2009 (ARRA) to 

the Sharon Elementary School Water 

System, Sharon, VT 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The EPA is hereby granting a 

project waiver of the Buy American 

requirements of ARRA section 1605 

under the authority of section 1605(b)(2) 

[manufactured goods are not produced 

in the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality] to the Sharon 

Elementary School Water System in 

Sharon, Vermont for the purchase of 

NSF–55 Class A certified Ultra Violet 

(UV) disinfection equipment. This is 

project specific waiver and only applies 

to the use of the specified product for 

the ARRA funded project being 

proposed. Any other ARRA project that 

may wish to use the same product must 

apply for a separate waiver based on 

project specific circumstances. The UV 

disinfection equipment under 

consideration is manufactured outside 

of the United States by two companies 

based in Canada and meets the water 

system’s technical and design 

specifications. The Acting Regional 

Administrator is making this 

determination based on the review and 

recommendations of the Municipal 

Assistance Unit. The Sharon Elementary 

School Water System has provided 

sufficient documentation to support its 

request. The Assistant Administrator of 

the Office of Administration and 

Resources Management has concurred 

on this decision to make an exception 

to section 1605 of the ARRA. This 

action permits the purchase of specific 

UV disinfection equipment for the 

proposed project being implemented by 

the Sharon Elementary School Water 

System. 

DATES: Effective Date: July 17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Katie Connors, Environmental Engineer, 

(617) 918–1658, or David Chin, 

Environmental Engineer, (617) 918– 

1764, Municipal Assistance Unit (CMU), 

Office of Ecosystem Protection (OEP), 

U.S. EPA, One Congress Street, CMU, 

Boston, MA 02114. 

SUPPLEMENTARY INFORMATION: 

In accordance with ARRA section 

1605(c) and pursuant to section 

1605(b)(2) of Public Law 111–5, Buy 

American requirements, EPA hereby 

provides notice that it is granting a 

project waiver to the Sharon Elementary 

School Water System (the ‘‘System’’) in 

Sharon, Vermont for the acquisition of 

NSF–55 Class A certified Ultra Violet 

(UV) disinfection equipment 

manufactured outside of the United 

States. 

Section 1605 of the ARRA requires 

that none of the appropriated funds may 

be used for the construction, alteration, 

maintenance, or repair of a public 

building or public work unless all of the 

iron, steel, and manufactured goods 

used in the project are produced in the 

United States, or unless a waiver is 

provided to the recipient by the head of 

the appropriate agency, here EPA. A 

waiver may be provided if EPA 

determines that (1) Applying these 

requirements would be inconsistent 

with the public interest; (2) iron, steel, 

and the relevant manufactured goods 

are not produced in the United States in 

sufficient and reasonably available 

quantities and of a satisfactory quality; 

or (3) inclusion of iron, steel, and the 

relevant manufactured goods produced 

in the United States will increase the 

cost of the overall project by more than 

25 percent. 

The State of Vermont requires that 

water supply installations must comply 

with the Vermont Standards for Water 

System Design, Construction and 

Protection (Vermont Water Supply 

Rule—Chapter 21). In order to meet 

these standards the State of Vermont 

requires public water systems using UV 

disinfection to use National Sanitation 

Foundation (NSF) Standard 55 

(Ultraviolet Microbial Water Treatment 

Systems) Class A certified UV 

equipment. The State of Vermont, 

Agency of Natural Resources, Water 

Supply Division (VTANR) has identified 

three lines of UV disinfection systems 

with NSF–55 Class A certification, all 

manufactured in Canada. Two of the 

three include the UV Pure Hallett 15xs 

ultraviolet water system, as well as the 

Trojan Technologies Sterilight SPV 200 

series units. The design engineer and 

the VTANR have conducted research 

and determined that there are no 

domestic manufacturers that have NSF– 

55 Class A certification at the time of 

this waiver request. 

The design engineer for the System 

indicated that he chose to use four 

Hallett 15xs (15 gpm) UV units for the 

school buildings and one Sterilight SPV 

200 (2 gpm) UV unit for a remote 

location which receives its water supply 

from the school well. The designs also 

took into account the limited space 

available for retrofitting the water 

supply and distribution systems, as well 

as the attributes of the specific 

equipment. The estimated cost for all of 

the UV equipment for the proposed 

project was under $10,000. 

The System’s submission clearly 

articulates functional reasons for its 

technical specifications and 

requirements, and has provided 

sufficient documentation that the 

relevant manufactured goods are not 

produced in the United States in 

sufficient and reasonably available 

quantity and of a satisfactory quality to 

meet its technical specifications. 

The April 28, 2009 EPA HQ 

Memorandum, ‘‘Implementation of Buy 

American provisions of Public Law 

111–5, the ‘American Recovery and 

Reinvestment Act of 2009’ ’’, defines 

reasonably available quantity as ‘‘the 

quantity of iron, steel, or relevant 

manufactured good is available or will 

be available at the time needed and 

place needed, and in the proper form or 

specification as specified in the project