46142 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 228

[FRL–5885–1]

Simultaneous De-designation and

Termination of the Mud Dump Site and

Designation of the Historic Area

Remediation Site

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The U.S. Environmental

Protection Agency (EPA) is dedesignating and terminating the New

York Bight Dredged Material Disposal

Site (also known as the Mud Dump Site)

and simultaneously designating the

Historic Area Remediation Site. The

Mud Dump Site was designated in 1984

for the disposal of 100 million cubic

yards of dredged material from

navigational dredging and other

dredging projects associated with the

Port of New York and New Jersey and

nearby harbors. The site and

surrounding areas that have been used

historically as disposal sites for dredged

materials are simultaneously being

redesignated under 40 CFR part 228 as

the Historic Area Remediation Site. The

Historic Area Remediation Site will be

managed to reduce impacts of historical

disposal activities at the site to

acceptable levels (in accordance with 40

CFR 228.11(c)). This action identifies for

remediation an area in and around the

Mud Dump Site which has exhibited the

potential for adverse ecological impacts.

As discussed further below, the Historic

Area Remediation Site will be

remediated with uncontaminated

dredged material (i.e., dredged material

that meets current Category I standards

and will not cause significant

undesirable effects including through

bioaccumulation) (hereinafter referred

to as ‘‘the Material for Remediation’’ or

‘‘Remediation Material’’).

EFFECTIVE DATE: This final regulation

becomes effective on September 29,

1997.

ADDRESSES: The official record of this

rulemaking is available for inspection at

the EPA Region 2 Library, 16th Floor,

290 Broadway, New York, NY 10007–

1866. For access to the docket materials,

call Karen Schneider at (212) 637–3189

between 9:00 am and 3:30 pm Monday

through Friday, excluding legal

holidays, for an appointment. The EPA

public information regulations (40 CFR

part 2) provide that a reasonable fee may

be charged for copying.

FOR FURTHER INFORMATION CONTACT: Mr.

Douglas Pabst, Team Leader, Dredged

Material Management Team, US EPA

Region 2, 290 Broadway, New York, NY

10007–1866; (212) 637–3797

(pabst.douglas@epamail.epa.gov).

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

Entities potentially affected by this

action include those who might have

sought permits to dump dredged

material into ocean waters at the Mud

Dump Site and those who might seek to

place Remediation Material at the

Historic Area Remediation Site, under

the Marine Protection, Research, and

Sanctuaries Act, 33 U.S.C. 1401 et seq.

(hereinafter referred to as the MPRSA).

The rule would primarily be of

relevance to entities in the New YorkNew Jersey Harbor and surrounding area

seeking permits from the U.S. Army

Corps of Engineers (USACE) for the

ocean dumping of dredged material at

the Mud Dump Site or those seeking to

place Remediation Material at the

Historic Area Remediation Site, as well

as the USACE itself. Potentially affected

categories and entities include:

Category Examples of potentially affected entities

Industry ............................................................... Ports in NY/NJ Harbor and surrounding areas seeking MPRSA permits for dredged material.

Marinas in the NY/NJ Harbor and surrounding areas seeking MPRSA permits for dredged material.

Shipyards in the NY/NJ Harbor and surrounding areas seeking MPRSA permits for dredged

material.

Berth owners in the NY/NJ Harbor and surrounding area seeking MPRSA permits for dredged

material.

State/local/tribal governments ............................. Local governments owning ports or berths in the NY/NJ Harbor and surrounding area seeking

MPRSA permits for dredged material.

Federal ................................................................ US Army Corps of Engineers for its proposed dredging projects in NY/NJ Harbor and surrounding areas.

Federal agencies seeking MPRSA permits for dredged material from NY/NJ Harbor and surrounding areas.

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 EPA is now

aware could potentially be affected by

this action. Other types of entities not

listed in the table could also be affected.

To determine whether you or your

organization may be affected by this

action, you should carefully consider

whether you or your organization may

be subject to the requirement to obtain

a MPRSA permit in accordance with the

Purpose and Scope provisions of section

220.1 of Title 40 of the Code of Federal

Regulations, and you wish to use the

sites affected by today’s final rule. If you

have any questions regarding

applicability of this action to a

particular entity, please consult the

person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Other entities potentially affected by

today’s final rule would include

commercial and recreational fishing

interests using New York Bight Apex

fishing and shellfish grounds. By

providing for remediation of areas

adversely impacted by historic disposal

activities, today’s rule would be

expected to have positive effects on

fishery and shellfish resources.

II. Background

The U.S. Environmental Protection

Agency (EPA) proposed a single

rulemaking action on May 13, 1997, to

de-designate and terminate the New

York Bight Dredged Material Disposal

Site (also known as the Mud Dump Site

(MDS)), and simultaneously designate

the site and surrounding areas that have

been used historically as disposal sites

for dredged materials as the Historic

Area Remediation Site (HARS) under 40

CFR part 228. (62 FR 26267). The

proposed rule was accompanied by a

Supplemental Environmental Impact

Statement (SEIS) prepared pursuant to

EPA’s voluntary EIS policy (39 FR

16186 (May 7, 1974)), a Biological

Assessment as submitted to the National

Marine Fisheries Service (NMFS)

pursuant to section 7 of the Endangered

Species Act (16 U.S.C. 1536), and a draft

Site Management and Monitoring Plan,
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 46143

prepared pursuant to section 102(c)(3)

of the MPRSA (33 U.S.C. 1412(c)(3)).

The SEIS provided an analysis of four

alternatives: (1) No Action, (2) Closure

of the MDS with No Designation of the

HARS, (3) Remediation, and (4)

Restoration. The proposed rule

endorsed implementation of Alternative

3 of the SEIS (the preferred alternative),

providing for the simultaneous closure/

de-designation of the MDS and

designation of the HARS. The HARS

would be managed to reduce impacts of

historical disposal activities at the site

to acceptable levels (in accordance with

40 CFR 228.11(c)). The proposal further

provided that the HARS would be

remediated with uncontaminated

dredged material (i.e., dredged material

that meets current Category I standards

and will not cause significant

undesirable effects including through

bioaccumulation), hereinafter referred to

as ‘‘the Material for Remediation’’ or

‘‘Remediation Material.’’

The SEIS and the proposed rule’s

preamble (62 FR 26272–26276)

provided an analysis of the proposed

action’s compliance with the site

designation criteria of 40 CFR 228.5 and

228.6(a). The final rule promulgates,

without change, the proposal to amend

40 CFR 228.15(d)(6) to de-designate the

MDS and simultaneously designate the

HARS. This final action provides a site

for long-term use of Category I dredged

material resulting from dredging

projects in the NY/NJ Harbor area and

provides for the remediation of the

HARS, an area in the NY Bight that has

been found to exhibit the potential for

adverse ecological impacts due to

existing degraded sediment conditions.

A map showing the location of the

HARS is provided in Figure 1. For

further information, readers should refer

to the preamble to the proposed rule

and the SEIS. Because today’s action

promulgates the proposed rule language

without change, EPA continues to find

that the action being taken satisfies the

site designation criteria of 40 CFR part

228.

BILLING CODE 6560–50–P
46144 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

BILLING CODE 6560–50–C
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 46145

III. Public Comments

In the preamble to the proposed rule,

EPA requested public comment by June

30, 1997, and held three public hearings

(attended by an estimated total of 120

people) as follows:

June 16, 1997, at 7:00 PM: Monmouth

Beach Municipal Auditorium, 22

Beach Road, Monmouth Beach, New

Jersey, 07750. (16 individuals

presented testimony)

June 17, 1997, at 7:00 PM: Social

Services Building Auditorium,

County Seat Drive, Mineola, Long

Island, NY 11501 (One individual

presented testimony)

June 18, 1997, at 2:00 PM: Oval Room,

Port Authority of New York and New

Jersey, Floor 43, 1 World Trade

Center, New York, New York 10048.

(6 individuals presented testimony).

In addition to the testimony and

comments provided at the hearings,

EPA also received 45 sets of written

comments on the proposed action.

Dredging and ocean disposal of NY/NJ

Harbor sediments has proven to be a

controversial and complex issue in

recent years, and as would be expected

in light of such controversy, the

comments received expressed a wide

range of divergent opinions. In

developing the final rule, EPA reviewed

and considered all the written

comments as well as those received

verbally at the three hearings. Most of

the comments received expressed, to

varying degrees, support for closure of

the MDS and remediation of the HARS,

and many requested that the proposed

rule be adopted without change from

the proposal. Other comments

questioned closure of the MDS or the

timing for such closure, whereas others

supported MDS closure but opposed

placement of Remediation Material at

the HARS, or offered alternative ideas

for remediation. For the convenience of

the reader, below is a summary of some

of the major issues raised and EPA’s

responses to those comments. EPA

carefully considered and responded to

each comment received, and EPA

emphasizes that the discussion below is

but a brief summary of some of the key

points raised and EPA’s responses. A

complete Response to Comments

Document 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 location under

ADDRESSES above.

Closure of MDS

A few commenters questioned a

September closure date for the MDS.

These commenters asserted that the

proposed closure date for the MDS was

arbitrary, primarily based on their belief

that bathymetry data from the USACE

supported their conclusion that a

September termination date will deprive

the Port of as much as 8.9 million cubic

yards of Category II disposal capacity.

The factual basis for this comment is

incorrect. A technical report prepared

by USACE Waterways Experiment

Station (Summer 1997 Capped Category

II Mound in the Mud Dump SitePreliminary Design. 14 January 1997),

which was based on the most recent

available US Army Corps of Engineers

New York District (USACE–NYD)

bathymetry survey data for the MDS,

concluded that prior to the

commencement of the Category II

disposal operations in 1997, there was

approximately 800,000 cubic yards of

Category II capacity. Permits to fully

utilize that remaining capacity prior to

MDS closure were issued by the

USACE–NYD, and dumping operations

utilizing Category II capacity were

actually completed on August 10, 1997.

Because there is no remaining Category

II capacity at the MDS, today’s rule

cannot have the effect these commenters

raised. EPA also notes that,

simultaneous with closure of the MDS,

the HARS also is designated, thereby

providing a long term site for the

placement of Remediation Material

resulting from Category I dredging

projects from NY/NJ Harbor and

surrounding areas.

These commenters also questioned

the September closure date for the MDS

on the basis that during winter, there is

reduced biological activity by marine

organisms at the site, apparently making

winter a more favorable disposal season

in the views of the commenters. EPA

notes that in designating the MDS,

seasonal restrictions on its use were not

found to be necessary, nor does the

MDS Site Management and Monitoring

Plan (SMMP) call for such restrictions.

Delaying the dredging and disposal

operations that utilized the remaining

MDS Category II capacity to sometime

in the winter thus was not

environmentally necessary, and would

simply have delayed important dredging

projects. With the full utilization of

MDS Category II capacity, EPA also

believes it is appropriate at the same

time to close the MDS so that Category

I dredged material which might

otherwise simply be dumped at the

MDS can be beneficially utilized to

remediate areas within the HARS that

exhibit the potential for adverse

ecological impacts.

These commenters also expressed the

view that the September closure date

was without a rational basis and that the

proposal was an after-the-fact attempt to

justify a political decision expressed in

the July 24, 1996, 3-Party Letter (see 62

FR 26269 for description of that letter).

EPA does not agree. The fact that the

Administration felt the need to develop

a coordinated, comprehensive approach

to protecting and improving the

environmental and economic health of

the Port merely reflects the difficulty of

this issue and the significance of the

Port. Today’s final rule was undertaken

following notice and comment

rulemaking under the Administrative

Procedure Act, and is amply supported

by the SEIS and its associated

environmental studies. Those

documents demonstrate the degraded

sediment conditions within the HARS

and the need for the action being taken,

which is intended to remediate those

degraded conditions and provide a site

for future placement of Remediation

Material generated by Harbor dredging

projects. Further, as indicated above,

MDS Category II capacity has already

been utilized, and thus the MDS closure

date has no effect on Category II dredged

material disposal options.

Other commenters expressed their

support for closure of the MDS, pointing

out that such action was well justified

by the studies and information

presented in the SEIS. Some of these

commenters further expressed their

view that the degraded sediment

conditions at the HARS could be

primarily attributed to dredged material

disposal. Although EPA agrees that the

conditions identified in the HARS

warrant action to designate the HARS

for remediation, EPA cautions that the

ability to unequivocally link any

particular pollution source directly to

specific impacts within a receiving body

is generally difficult and complex. This

is especially difficult in the marine

environment, and particularly complex

in the New York Bight Apex, which has

received a plethora of pollutants from a

wide variety of sources over a long

period of time. In addition, historically

dumped dredged material was likely to

be significantly more contaminated than

the material placed at the MDS in more

recent years, which has been subject to

careful testing and evaluation under the

MPRSA. EPA does agree, however, that

degraded conditions identified within

the HARS plainly warrant remediation

of that area. Given that MDS Category II

capacity has now been utilized, and

degraded conditions have been

identified in the broader area of the

HARS, today’s action to close the MDS

and simultaneously designate the HARS

will allow for remediation of those

degraded conditions.
46146 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

Designation of the HARS

Two commenters expressed the need

to assure that designation of the HARS

and de-designation of the MDS take

place at the same time so that there

would be no gap in the availability of an

ocean site. EPA notes that the proposed

rule (and likewise the final rule)

provides that closure of the MDS and

designation of the HARS is one single,

non-severable action. This was

expressly noted in the preamble to the

proposed rule, which stated the action

consists of a single rulemaking action

that amends 40 CFR 228.15(d)(6) by

deleting existing language designating

the MDS and simultaneously replacing

it with language designating the HARS

(See, 62 FR 26268 at column 2). The

amendatory language thus has been

deliberately structured so that it cannot

result in the MDS being closed without

the HARS simultaneously coming into

existence.

Some commenters questioned the

need for remediating such a broad area

as the HARS or questioned the need for

remediation of the HARS at all. Some of

these comments also suggested that EPA

adopt a ‘‘go slow’’ approach whereby

smaller areas would be remediated, with

subsequent investigation and analysis to

assess the results. As discussed in the

SEIS, material placed in the HARS will

remediate degraded sediment

conditions identified in the HARS. In

addition, as provided in section 10.2.2

of the HARS SMMP, to the maximum

extent practicable and based on

availability, each remediation area will

be remediated with material of similar

grain size/composition as the sediments

currently located within that

Remediation Area. Although placement

of Remediation Material will cause

short-term burial and mortality of some

organisms, monitoring data from

disposal projects completed in the MDS

and other areas of the country have

shown that marine life will recolonize

the sediments and return to conditions

similar to those of comparable sediment

type (see page 4–31 through 4–34 of the

SEIS and publications cited therein).

Moreover, placement of Remediation

Material will occur sequentially by

remediation area cell (1 square nautical

mile (nmi2) each), and would not

simultaneously impact the entire 9 nmi2

PRA of the HARS, meaning that the

temporary impacts that do occur will be

localized. In exchange for such localized

temporary impacts, broader long-term

benefits will result in that the currently

degraded sediment conditions within

the HARS will be improved. EPA has

also developed a HARS SMMP in order

to provide for ongoing monitoring and

assessment of placement operations and

identify potential adverse effects.

Placement of Remediation Material is

subject to the MPRSA and USACE

permitting procedures, including the

opportunity for public comment.

A number of commenters expressed

suggestions on the type of material that

should be allowed for use as

Remediation Material. These comments

included suggestions for a so-called

‘‘rapid remediation alternative’’

involving use of material exhibiting

Category II characteristics in addition to

using Category I material. Other

commenters took the opposite view,

urging that Remediation Material should

instead be of even higher quality than

Category I material and should be free

of all contaminants or be limited to socalled ‘‘exclusionary material’’. (Such

materials are ‘‘excluded’’ from testing

because they are clean. They consist of

such things as clean sand from high

energy areas (e.g., Ambrose channel)

and sediments from below levels where

man-made contaminants exist (e.g.,

excavations from deep layers of

sediment which may be produced from

deepening projects or construction of

deep borrow pits)). Within this range of

divergent views, some commenters

suggested that coverage of the HARS

could occur more quickly if an initial

thinner layer of Remediation Material

was placed, then followed by placement

of another layer to complete the cap to

an at-least 1 meter thickness.

EPA does not believe that placement

of Category II material at the HARS

would be consistent with the goals of

remediation at the HARS. Category II

material demonstrates a

bioaccumulation potential that is

inconsistent with the remediation

objectives for this site. The commenters’

suggestion, in essence, would allow

dumping of Category II material without

the expeditious capping practices

utilized at the MDS. As documented in

the SEIS and the proposed rule’s

preamble, the HARS exhibits signs of

degraded sediments which would be

unsuitable for ocean disposal by current

standards, and EPA does not believe it

is appropriate to attempt to ‘‘remediate’’

such a demonstrably stressed

environment by using uncapped

Category II material that would have

been capped if dumped at the existing

MDS.

These commenters were also of the

view that by using Category II material

as Remediation Material, the time for

remediating the HARS could be cut in

half. EPA cautions that, in general,

projection of dates as to when

completion of HARS remediation will

take place is uncertain and will be

affected by the overall volume of

Remediation Material that becomes

available. EPA considered the

commenters’ assertion that use of

Category II material would cut the

remediation period in half, but based on

volume projections contained in the

1996 USACE–NYD Interim Report for

the Dredged Material Management Plan

(Interim DMMP) for NY/NJ Harbor,

concludes that such substantial time

savings would not result. EPA also notes

that because Remediation Material is

not limited to NY/NJ Harbor dredging

projects, additional volumes of

Remediation Material could come from

surrounding areas. EPA also notes that

even in the context of NY/NJ Harbor

dredging projects, improved pollutant

source controls and the potential 50-foot

deepening project currently under study

by the USACE–NYD could further result

in additional Remediation Material. The

recently-approved Comprehensive

Conservation and Management Plan for

New York-New Jersey Harbor provides

for a variety of actions to be taken by

many parties that would reduce

contaminant levels from point and

nonpoint sources. These additional

sources of Remediation Material could

further help reduce the time frame for

remediation. As previously explained,

EPA does not believe that use of

Category II material would be consistent

with the remediation objectives of the

HARS, and this is especially true given

that resulting time savings in capping

the HARS would not be substantial.

Other commenters expressed the view

that Remediation Material should be

free of all contaminants. EPA notes that

such an approach is virtually

unachievable, and would so reduce the

volume of Remediation Material

available that it would drastically

increase the time period for

remediation, as well as interfering with

the goal of using Remediation Material

that is similar in grain size to the

existing sediment. Furthermore, even if

additional cap material were to be

generated by dredging areas that

otherwise would not be dredged, this

could have other adverse effects by

disruption to the area being dredged and

also would have substantial economic

costs. SEIS Alternative 4 considered

using exclusionary sandy material as the

sole source of the cap, and rejected this

option based, in part, on the fact that it

would have resulted in substantially

increased remediation time as well as

widely altering existing sediment grain

sizes (and hence habitat) in the HARS.

A ‘‘zero’’ contaminant approach would

impair the ability to remediate the

HARS and result in degraded sediments
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 46147

within the HARS continuing to be

exposed to marine organisms for many

more years to come. EPA does not

believe such a result is environmentally

sound.

Moreover, a ‘‘zero’’ contamination

level is not necessary to remediate the

HARS. The primary purpose of placing

Remediation Material at the HARS is to

improve conditions over those currently

at the site, where sediments in the PRA

exhibit Category II and III

characteristics. This requires a balance

between ensuring that the material

placed for remediation will not

contribute to further degradation of the

area, and ensuring that there is an

adequate supply of Remediation

Material with appropriate grain size

such that remediation can take place in

the near future. The definition of

Remediation Material used in the SEIS

and the preamble to the proposed rule,

‘‘uncontaminated dredged material (i.e.,

dredged material that meets current

Category I standards and will not cause

significant undesirable effects including

through bioaccumulation),’’ was

intended to strike this balance.

EPA also notes that one commenter

looked at the issue of what might

constitute Remediation Material on a

compound-by-compound basis (e.g.,

PCBs). This commenter expressed the

view that use of Category I Material for

Remediation would do little to improve

the conditions of the Bight. EPA does

not agree, because Category I material

meets the regulations’ criteria for ocean

disposal (i.e., placement of such

sediments will not cause significant

undesirable effects, including the

possibility of danger associated with

bioaccumulation) and is suitable for

unrestricted ocean disposal as it is

below Regional matrix values and

Regional Category I dioxin values.

Covering sediments that have been

shown to have high levels of toxicity or

bioaccumulative contaminants with this

material will result in improved

conditions in the HARS. Using a simple

compound-by-compound comparison of

Category I material to values within or

around the HARS and requiring that all

such compounds be lower in the

Remediation Material than sediments in

or around the HARS would virtually

assure that no Category I material could

be used to remediate the HARS.

Other commenters expressed the view

that the definition of Remediation

Material should be left unchanged. EPA

notes that today’s final rule was adopted

without change from the proposal, and

that 40 CFR 228.15(d)(6)(v)(A) continues

to provide that ‘‘ Use of the site will be

restricted to dredged material suitable

for use as the Material for Remediation.

This material shall be selected so as to

ensure it will not cause significant

undesirable effects including through

bioaccumulation or unacceptable

toxicity, in accordance with 40 CFR

227.6.’’ EPA Region 2 and the USACE–

NYD will be utilizing the current

dredged material evaluation process for

identifying Category I dredged material

in determining the suitability of dredged

material to be utilized as Remediation

Material at the HARS. It also should be

noted that in accordance with the NY/

NJ Harbor Estuary Program

Comprehensive Conservation and

Management Plan, EPA Region 2 plans

to initiate a public and scientific peer

review process of the dredged material

testing evaluation framework.

With regard to comments that an

initial layer of Remediation Material be

placed so as to more quickly cover a

broader area with Remediation Material,

and then followed-up with placement of

additional material to bring the cap up

to an at-least 1 meter thickness, EPA

agrees that consistent with the

availability of appropriate material, this

could be a useful approach to placing

material at the HARS. The SMMP for

the HARS thus has been modified to

allow for a procedure for covering each

individual remediation area within the

HARS with at least a 0.5 meter layer of

Remediation Material first, and then

placing at least 0.5 meters of additional

Remediation Material, to achieve the atleast 1 meter thickness to assure the

HARS is adequately capped/remediated.

As can be seen from the above

discussions, there were many comments

regarding Remediation Material,

reflecting very divergent views. In

summary, EPA notes that there are a

wide variety of factors that need to be

considered in determining the

appropriate approach to remediation of

the HARS. These considerations include

not only the quality of material required

to eliminate the potential for adverse

environmental impacts, but issues such

as the rate of remediation, and the likely

availability of adequate volumes of

environmentally appropriate

Remediation Material. In particular, the

following factors need to be weighed in

selecting the best option:

(1) The potential for adverse

environmental impacts due to degraded

sediments currently at the HARS,

particularly in light of the facts that:

—Existing sediments located in the

HARS are acutely toxic to standard

test organisms (amphipods) (SEIS pg

3–74); and

—Benthic worms collected from within

the HARS are accumulating

undesirable levels of dioxin (HARS

SMMP section 8.2.5).

(2) The environmental

appropriateness of particular types of

material.

—All Category I material meets the

regulations and is suitable for

unrestricted ocean disposal (see 40

CFR part 227).

—Category II material demonstrates

bioaccumulation such that regional

guidance provides for capping to

isolate it from the marine

environment (see MDS SMMP).

—To the maximum extent practicable,

the grain size/composition of

Remediation Material needs to match

that of the area being remediated, in

order to ensure that the biological

communities will be able to recolonize on the same or similar type

sediments (HARS SMMP section

10.2.2).

(3) The availability of adequate

quantities of appropriate Remediation

Material.

—There is limited availability of

exclusionary material, which would

result in significant delays in

remediating the HARS if that were the

sole source of Remediation Material

(see SEIS pg. 4–45).

—There is a need to provide a site for

long-term placement of Category I

dredged material from NY/NJ Harbor

dredging projects (see Interim Report

of DMMP pgs. 2–2, 13–8 through 13–

9).

Given all of the above considerations,

EPA believes that allowing for the use

of Category I material strikes the proper

balance of improving degraded

conditions in the HARS within a

reasonable time frame.

IV. Compliance With Other Acts and

Orders

A. Executive Order 12866

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:

(1) 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;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlement, grants, user fees,
46148 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.’’

Today’s action, which simultaneously

de-designates the MDS and designates

the HARS, is not a significant regulatory

action under E.O. 12866. The dedesignation of the MDS will not affect

the disposal of Category II material,

because the MDS capacity for Category

II materials was utilized by completion

of Category II disposal operations on

August 10, 1997. Because the use of

Category II capacity was completed

regardless of today’s final action, today’s

final rule could not have economic

effects with regard to Category II

material. Moreover, as explained in the

response to comment 1–16 included in

the record for this rule, even if one

assumes arguendo, that the final rule

somehow would limit Category II

capacity, any resultant impacts are far

below the effects specified in E.O.

12866, even with the use of highly

conservative assumptions. With regard

to Category I material, the HARS will

continue to provide an EPA-designated

site for the placement of

‘‘uncontaminated dredged material (i.e.,

dredged material that meets current

Category I standards and will not cause

significant undesirable effects including

through bioaccumulation)’’. It thus has

been determined that this rule is not a

‘‘significant regulatory action’’ under

the terms of the Executive Order 12866

and is therefore not subject to OMB

review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA) (5 U.S.C. 601 et seq.), federal

agencies generally are required to

prepare a final regulatory flexibility

analysis whenever the agency

promulgates a final rule subject to

notice and comment requirements

under 5 U.S.C. 553 after being required

by that section (or any other law) to

publish a general notice of proposed

rulemaking. Section 605(b) sets forth an

exception to this requirement. It

provides that no final regulatory

flexibility analysis is required if the

head of the agency certifies that the final

rule will not have a significant

economic impact on a substantial

number of small entities. Therefore, the

Agency did not prepare a final

regulatory flexibility analysis.

As previously explained, the Agency

is de-designating the MDS and

simultaneously designating the HARS,

where only Remediation Material (i.e.,

dredged material that meets current

Category I standards and will not cause

significant undesirable effects including

through bioaccumulation) may be

placed. De-designation of the MDS and

designation of the HARS will not have

a significant economic impact on a

substantial number of small entities

because the number of potentially

affected small entities is very small.

EPA has reviewed 11 years of permit

reports prepared by the USACE-NYD for

use in submissions by the United States

to the International Maritime

Organization on ocean dumping

activities. On average the USACE-NYD

has only issued 5 ocean dumping

permits per year to small entities for use

of the MDS. Moreover, any arguable

costs to small entities associated with

today’s action would not be significant

because EPA assessment indicates that

the cost would not be significantly

different from current costs.

Therefore, for the reasons explained

above, the Regional Administrator

certifies, pursuant to section 605(b) of

the RFA, that the rule will not have a

significant economic impact on a

substantial number of small entities.

C. Paperwork Reduction Act

The Paperwork Reduction Act, 44

U.S.C. 3501 et seq., is intended to

minimize the reporting and record

keeping burden on the regulated

community, as well as to minimize the

cost of Federal information collection

and dissemination. In general, the Act

requires that information requests and

record-keeping requirements affecting

ten or more non-Federal respondents be

approved by the Office of Management

and Budget. Since this rule does not

establish or modify any information or

record-keeping requirements, it is not

subject to the requirements of the

Paperwork Reduction Act.

D. The Unfunded Mandates Reform Act

and Executive Order 12875

Title II of the Unfunded Mandates

Reform Act (UMRA), Public Law 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 costeffective 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 a

small government agency plan under

section 203 of the UMRA. 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.

This rule contains no Federal

mandates (under the regulatory

provisions of the UMRA) for State, local,

or tribal governments or the private

sector. As is explained elsewhere in this

preamble, today’s rule de-designates the

MDS, and designates instead an area in

the ocean suitable for the placement of

Remediation Material. Accordingly, it

imposes no new enforceable duty on

any State, local or tribal governments or

the private sector. Even if this rule did

contain a Federal mandate, it would not

result in annual expenditures of $100

million or more for State, local or tribal

governments in the aggregate, or the

private sector. Thus, this rule is not

subject to the requirements of sections

202 and 205 of UMRA.

For the foregoing reasons, EPA also

has determined that this rule contains

no regulatory requirements that might

significantly or uniquely affect small

governments. Thus, the requirements of

section 203 of UMRA also do not apply

to this rule.

E. 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 (ESA), a federal

agency is required to consult with either
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 46149

the U. S. Fish and Wildlife Service

(FWS) or the National Marine Fisheries

Service (NMFS) (depending on the

species involved) if the agency’s action

‘‘may effect’’ endangered or threatened

species or their critical habitat. See, 50

CFR 402.14(a).

ESA Consultation with FWS: Pursuant

to the ESA, EPA consulted with the

FWS during the preparation of its SEIS

for the expansion of the MDS. Initially,

FWS recommended that a Biological

Assessment be prepared to address

potential impacts to the piping plover

(Charadrius melodus) and northeastern

beach tiger beetle (Cicindela dorsalis

dorsalis), from the movement of

materials disposed of at the proposed

Expanded MDS onto oceanfront

beaches, shorelines, and intertidal areas.

In response, the EPA submitted for the

FWS’s consideration information from

hydrodynamic surveys conducted in the

New York Bight showing that dredged

material plumes dissipate rapidly (i.e.,

on the order of two hours), and that the

mean current flows are away from

oceanfront beaches, shorelines, and

intertidal areas. Additionally, as part of

the submittal, the EPA expressed the

belief that the proposed expansion of

the MDS would not adversely affect the

aforementioned species. On July 28,

1995, the FWS concurred with EPA’s

determination that the proposed

expansion of the MDS is not likely to

adversely affect federally listed species

under its jurisdiction.

Although the EPA revised the scope

of its SEIS after July 24, 1996 (i.e., dedesignate the MDS/designate the

HARS), it decided that further

consultation with the FWS would not be

needed because the revised action

would not alter the conclusion of the

original consultation. The FWS received

the SEIS for the simultaneous dedesignation of the MDS/designation of

the HARS in May 1997, and has not

raised any new ESA-related concerns

about EPA’s proposed action.

ESA Consultation with NMFS: EPA

initiated threatened and endangered

species consultation with the NMFS on

April 4, 1996. Based on this

coordination, EPA concluded that the

preparation of a biological assessment

was warranted for the Kemp’s ridley

and loggerhead sea turtles, and the

humpback and fin whales within the

MDS and surrounding areas. The NMFS

concurred with this approach on May 8,

1996, and EPA sent them a Biological

Assessment in May 1997, which

concluded that there are unlikely to be

any effects on threatened or endangered

species or their critical habitat. The

NMFS, in a letter of July 30, 1997,

concurred with this assessment.

List of Subjects in 40 CFR Part 228

Environmental protection, Water

pollution control.

Dated: August 25, 1997.

William J. Muszynski,

Acting Regional Administrator, EPA

Region 2.

In consideration of the foregoing, EPA

is amending Part 228 of Title 40 as set

forth below.

PART 228—CRITERIA FOR THE

MANAGEMENT OF DISPOSAL SITES

FOR OCEAN DUMPING

1. The authority citation for 40 CFR

Part 228 continues to read as follows:

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

2. Section 228.15 is amended by

revising paragraph (d)(6) to read as

follows:

§ 228.15 Dumping sites designated on a

final basis.

* * * * *

(d) * * *

(6) Historical Area Remediation Site

(HARS) Designation/Mud Dump Site

Termination.

(i) Status of Former Mud Dump Site:

The Mud Dump Site, designated as an

Impact Category I site on May 4, 1984,

is terminated.

(ii) Location: (A) The HARS (which

includes the 2.2 square nautical mile

area of the former Mud Dump Site) is a

15.7 square nautical mile area located

approximately 3.5 nautical miles east of

Highlands, New Jersey and 7.7 nautical

miles south of Rockaway, Long Island.

The HARS consists of a Primary

Remediation Area (PRA), a Buffer Zone,

and a No Discharge Zone. The HARS is

bounded by the following coordinates:

Point Latitude

DMS

Longitude

DMS

Latitude

DDM

Longitude

DDM

A ................................................................................ 40° 25′ 39′′ N ............ 73° 53′ 55′′ W ........... 40° 25.65′ N .............. 73° 53.92′ W.

M ................................................................................ 40° 25′ 39′′ N ............ 73° 48′ 58′′ W ........... 40° 25.65′ N .............. 73° 48.97′ W.

P ................................................................................ 40° 21′ 19′′ N ............ 73° 48′ 57′′ W ........... 40° 21.32′ N .............. 73° 48.95′ W.

R ................................................................................ 40° 21′ 19′′ N ............ 73° 52′ 30′′ W ........... 40° 21.32′ N .............. 73° 52.50′ W.

S ................................................................................ 40° 21′ 52′′ N ............ 73° 53′ 55′′ W ........... 40° 21.87′ N .............. 73° 53.92′ W.

V ................................................................................ 40° 21′ 52′′ N ............ 73° 52′ 30′′ W ........... 40° 21.87′ N .............. 73° 52.50′ W.

DMS = Degrees, Minutes, Seconds.

DDM = Degrees, Decimal Minutes.

(B) The PRA, is a 9.0 square nautical

mile area to be remediated with at least

a 1 meter cap of the Material for

Remediation. The PRA is bounded by

the following coordinates:

Point Latitude

DMS

Longitude

DMS

Latitude

DDM

Longitude

DDM

B ................................................................................ 40° 25′ 23′′ N ............ 73° 53′ 34′′ W ........... 40° 25.38′ N .............. 73° 53.57′ W.

D ................................................................................ 40° 25′ 22′′ N ............ 73° 52′ 08′′ W ........... 40° 25.37′ N .............. 73° 52.13′ W.

F ................................................................................. 40° 23′ 13′′ N ............ 73° 52′ 09′′ W ........... 40° 23.22′ N .............. 73° 52.15′ W.

G ................................................................................ 40° 23′ 13′′ N ............ 73° 51′ 28′′ W ........... 40° 23.22′ N .............. 73° 51.47′ W.

H ................................................................................ 40° 22′ 41′′ N ............ 73° 51′ 28′′ W ........... 40° 22.68′ N .............. 73° 51.47′ W.

I .................................................................................. 40° 22′ 41′′ N ............ 73° 50′ 43′′ W ........... 40° 22.68′ N .............. 73° 50.72′ W.

L ................................................................................. 40° 25′ 22′′ N ............ 73° 50′ 44′′ W ........... 40° 25.37′ N .............. 73° 50.73′ W.

N ................................................................................ 40° 25′ 22′′ N ............ 73° 49′ 19′′ W ........... 40° 25.37′ N .............. 73° 49.32′ W.

O ................................................................................ 40° 21′ 35′′ N ............ 73° 49′ 19′′ W ........... 40° 21.58′ N .............. 73° 49.32′ W.
46150 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

Point Latitude

DMS

Longitude

DMS

Latitude

DDM

Longitude

DDM

Q ................................................................................ 40° 21′ 36′′ N ............ 73° 52′ 08′′ W ........... 40° 21.60′ N .............. 73° 52.13′ W.

T ................................................................................. 40° 22′ 08′′ N ............ 73° 52′ 08′′ W ........... 40° 22.13′ N .............. 73° 52.13′ W.

U ................................................................................ 40° 22′ 08′′ N ............ 73° 53′ 34′′ W ........... 40° 22.13′ N .............. 73° 53.57′ W.

DMS = Degrees, Minutes, Seconds.

DDM = Degrees, Decimal Minutes.

(iii) Size: 15.7 square nautical miles.

(iv) Depth: Ranges from 12 to 42 meters.

(v) Restrictions on Use:

(A) The site will be managed so as to reduce impacts within the PRA to acceptable levels in accordance with

40 CFR 228.11(c). Use of the site will be restricted to dredged material suitable for use as the Material for Remediation.

This material shall be selected so as to ensure it will not cause significant undesirable effects including through bioaccumulation or unacceptable toxicity, in accordance with 40 CFR 227.6.

(B) Placement of Material for Remediation will be limited to the PRA. Placement of Material for Remediation within

the PRA is not allowed in a 0.27 nautical mile radius around the following coordinates due to the presence of shipwrecks:

40°25.30′ W, 73°52.80′ N; 40°25.27′ W, 73°52.13′ N; 40°25.07′ W, 73°50.05′ N; 40°22.46′ W, 73°53.27′ N.

(C) No placement of material may take place within the Buffer Zone, although this zone may receive material

that incidentally spreads out of the PRA. The Buffer Zone is an approximately 5.7 square nautical mile area (0.27

nautical mile wide band around the PRA), which is bounded by the following coordinates:

Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM

A ................................................................................ 40°25′39′′ N .............. 73°53′55′′ W .............. 40°25.65′ N ............... 73°53.92′ W.

B ................................................................................ 40°25′23′′ N .............. 73°53′34′′ W .............. 40°25.38′ N ............... 73°53.57′ W.

C ................................................................................ 40°25′39′′ N .............. 73°51′48′′ W .............. 40°25.65′ N ............... 73°51.80′ W.

D ................................................................................ 40°25′22′′ N .............. 73°52′08′′ W .............. 40°25.37′ N ............... 73°52.13′ W.

E ................................................................................ 40°23′48′′ N .............. 73°51′48′′ W .............. 40°23.80′ N ............... 73°51.80′ W.

F ................................................................................. 40°23′13′′ N .............. 73°52′09′′ W .............. 40°23.22′ N ............... 73°52.15′ W.

G ................................................................................ 40°23′13′′ N .............. 73°51′28′′ W .............. 40°23.22′ N ............... 73°51.47′ W.

H ................................................................................ 40°22′41′′ N .............. 73°51′28′′ W .............. 40°22.68′ N ............... 73°51.47′ W.

I .................................................................................. 40°22′41′′ N .............. 73°50′43′′ W .............. 40°22.68′ N ............... 73°50.72′ W.

J ................................................................................. 40°23′48′′ N .............. 73°51′06′′ W .............. 40°23.80′ N ............... 73°51.10′ W.

K ................................................................................ 40°25′39′′ N .............. 73°51′06′′ W .............. 40°25.65′ N ............... 73°51.10′ W.

L ................................................................................. 40°25′22′′ N .............. 73°50′44′′ W .............. 40°25.37′ N ............... 73°50.73′ W.

M ................................................................................ 40°25′39′′ N .............. 73°48′58′′ W .............. 40°25.65′ N ............... 73°48.97′ W.

N ................................................................................ 40°25′22′′ N .............. 73°49′19′′ W .............. 40°25.37′ N ............... 73°49.32′ W.

O ................................................................................ 40°21′35′′ N .............. 73°49′19′′ W .............. 40°21.58′ N ............... 73°49.32′ W.

P ................................................................................ 40°21′19′′ N .............. 73°48′57′′ W .............. 40°21.32′ N ............... 73°48.95′ W.

Q ................................................................................ 40°21′36′′ N .............. 73°52′08′′ W .............. 40°21.60′ N ............... 73°52.13′ W.

R ................................................................................ 40°21′19′′ N .............. 73°52′30′′ W .............. 40°21.32′ N ............... 73°52.50′ W.

S ................................................................................ 40°21′52′′ N .............. 73°53′55′′ W .............. 40°21.87′ N ............... 73°53.92′ W.

T ................................................................................. 40°22′08′′ N .............. 73°52′08′′ W .............. 40°22.13′ N ............... 73°52.13′ W.

U ................................................................................ 40°22′08′′ N .............. 73°53′34′′ W .............. 40°22.13′ N ............... 73°53.57′ W.

V ................................................................................ 40°21′52′′ N .............. 73°52′30′′ W .............. 40°21.87′ N ............... 73°52.50′ W.

DMS = Degrees, Minutes, Seconds.

DDM = Degrees, Decimal Minutes.

(D) No placement or incidental spread of the material is allowed within the No Discharge Zone, an approximately

1.0 square nautical mile area, bounded by the following coordinates:

Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM

C ................................................................................ 40°25′39′′ N .............. 73°51′48′′ W .............. 40°25.65′ N ............... 73°51.80′ W.

E ................................................................................ 40°23′48′′ N .............. 73°51′48′′ W .............. 40°23.80′ N ............... 73°51.80′ W.

J ................................................................................. 40°23′48′′ N .............. 73°51′06′′ W .............. 40°23.80′ N ............... 73°51.10′ W.

K ................................................................................ 40°25′39′′ N .............. 73°51′06′′ W .............. 40°25.65′ N ............... 73°51.10′ W.

DMS = Degrees, Minutes, Seconds.

DDM = Degrees, Decimal Minutes.

(vi) Period of Use: Continuing use until EPA determines that the PRA has been sufficiently capped with at least

1 meter of the Material for Remediation. At that time, EPA will undertake any necessary rulemaking to de-designate

the HARS.

* * * * *

[FR Doc. 97–23028 Filed 8–28–97; 8:45 am]

BILLING CODE 6560–50–P