[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 46142-46150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23028]



[[Page 46141]]

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Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 228



Simultaneous De-designation and Termination of the Mud Dump Site and 
Designation of the Historic Area Remediation Site; Final Rule

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

[[Page 46142]]


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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.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is de-
designating 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 (<a href="/cdn-cgi/l/email-protection#7f0f1e1d0c0b511b100a18131e0c3f1a0f1e121e1613511a0f1e51181009"><span class="__cf_email__" data-cfemail="2858494a5b5c064c475d4f44495b684d584945494144064d5849064f475e">[email protected]</span></a>).

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 York-New 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             Local governments owning ports or berths 
 governments.                   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,

[[Page 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

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[GRAPHIC] [TIFF OMITTED] TR29AU97.007



BILLING CODE 6560-50-C

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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 Site-
Preliminary 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.

[[Page 46146]]

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 (nmi\2\) 
each), and would not simultaneously impact the entire 9 nmi\2\ 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 so-called 
``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

[[Page 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 at-
least 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 re-
colonize 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,

[[Page 46148]]

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 de-designation 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 cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed 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

[[Page 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., de-designate 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 de-
designation 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:


Sec. 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 deg. 25' 39'' N............  73 deg. 53' 55'' W............  40 deg. 25.65' N.............  73 deg. 53.92' W.      
M...............................  40 deg. 25' 39'' N............  73 deg. 48' 58'' W............  40 deg. 25.65' N.............  73 deg. 48.97' W.      
P...............................  40 deg. 21' 19'' N............  73 deg. 48' 57'' W............  40 deg. 21.32' N.............  73 deg. 48.95' W.      
R...............................  40 deg. 21' 19'' N............  73 deg. 52' 30'' W............  40 deg. 21.32' N.............  73 deg. 52.50' W.      
S...............................  40 deg. 21' 52'' N............  73 deg. 53' 55'' W............  40 deg. 21.87' N.............  73 deg. 53.92' W.      
V...............................  40 deg. 21' 52'' N............  73 deg. 52' 30'' W............  40 deg. 21.87' N.............  73 deg. 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 deg. 25' 23'' N............  73 deg. 53' 34'' W............  40 deg. 25.38' N.............  73 deg. 53.57' W.      
D...............................  40 deg. 25' 22'' N............  73 deg. 52' 08'' W............  40 deg. 25.37' N.............  73 deg. 52.13' W.      
F...............................  40 deg. 23' 13'' N............  73 deg. 52' 09'' W............  40 deg. 23.22' N.............  73 deg. 52.15' W.      
G...............................  40 deg. 23' 13'' N............  73 deg. 51' 28'' W............  40 deg. 23.22' N.............  73 deg. 51.47' W.      
H...............................  40 deg. 22' 41'' N............  73 deg. 51' 28'' W............  40 deg. 22.68' N.............  73 deg. 51.47' W.      
I...............................  40 deg. 22' 41'' N............  73 deg. 50' 43#'' W...........  40 deg. 22.68' N.............  73 deg. 50.72' W.      
L...............................  40 deg. 25' 22'' N............  73 deg. 50' 44'' W............  40 deg. 25.37' N.............  73 deg. 50.73' W.      
N...............................  40 deg. 25' 22'' N............  73 deg. 49' 19'' W............  40 deg. 25.37' N.............  73 deg. 49.32' W.      
O...............................  40 deg. 21' 35'' N............  73 deg. 49' 19'' W............  40 deg. 21.58' N.............  73 deg. 49.32' W.      

[[Page 46150]]

                                                                                                                                                        
Q...............................  40 deg. 21' 36'' N............  73 deg. 52' 08'' W............  40 deg. 21.60' N.............  73 deg. 52.13' W.      
T...............................  40 deg. 22' 08'' N............  73 deg. 52' 08'' W............  40 deg. 22.13' N.............  73 deg. 52.13' W.      
U...............................  40 deg. 22' 08'' N............  73 deg. 53' 34'' W............  40 deg. 22.13' N.............  73 deg. 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 deg.25.30' W, 73 deg.52.80' N; 
40 deg.25.27' W, 73 deg.52.13' N; 40 deg.25.07' W, 73 deg.50.05' N; 
40 deg.22.46' W, 73 deg.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 deg.25'39'' N..............  73 deg.53'55'' W..............  40 deg.25.65' N..............  73 deg.53.92' W.       
B...............................  40 deg.25'23'' N..............  73 deg.53'34'' W..............  40 deg.25.38' N..............  73 deg.53.57' W.       
C...............................  40 deg.25'39'' N..............  73 deg.51'48'' W..............  40 deg.25.65' N..............  73 deg.51.80' W.       
D...............................  40 deg.25'22'' N..............  73 deg.52'08'' W..............  40 deg.25.37' N..............  73 deg.52.13' W.       
E...............................  40 deg.23'48'' N..............  73 deg.51'48'' W..............  40 deg.23.80' N..............  73 deg.51.80' W.       
F...............................  40 deg.23'13'' N..............  73 deg.52'09'' W..............  40 deg.23.22' N..............  73 deg.52.15' W.       
G...............................  40 deg.23'13'' N..............  73 deg.51'28'' W..............  40 deg.23.22' N..............  73 deg.51.47' W.       
H...............................  40 deg.22'41'' N..............  73 deg.51'28'' W..............  40 deg.22.68' N..............  73 deg.51.47' W.       
I...............................  40 deg.22'41'' N..............  73 deg.50'43'' W..............  40 deg.22.68' N..............  73 deg.50.72' W.       
J...............................  40 deg.23'48'' N..............  73 deg.51'06'' W..............  40 deg.23.80' N..............  73 deg.51.10' W.       
K...............................  40 deg.25'39'' N..............  73 deg.51'06'' W..............  40 deg.25.65' N..............  73 deg.51.10' W.       
L...............................  40 deg.25'22'' N..............  73 deg.50'44'' W..............  40 deg.25.37' N..............  73 deg.50.73' W.       
M...............................  40 deg.25'39'' N..............  73 deg.48'58'' W..............  40 deg.25.65' N..............  73 deg.48.97' W.       
N...............................  40 deg.25'22'' N..............  73 deg.49'19'' W..............  40 deg.25.37' N..............  73 deg.49.32' W.       
O...............................  40 deg.21'35'' N..............  73 deg.49'19'' W..............  40 deg.21.58' N..............  73 deg.49.32' W.       
P...............................  40 deg.21'19'' N..............  73 deg.48'57'' W..............  40 deg.21.32' N..............  73 deg.48.95' W.       
Q...............................  40 deg.21'36'' N..............  73 deg.52'08'' W..............  40 deg.21.60' N..............  73 deg.52.13' W.       
R...............................  40 deg.21'19'' N..............  73 deg.52'30'' W..............  40 deg.21.32' N..............  73 deg.52.50' W.       
S...............................  40 deg.21'52'' N..............  73 deg.53'55'' W..............  40 deg.21.87' N..............  73 deg.53.92' W.       
T...............................  40 deg.22'08'' N..............  73 deg.52'08'' W..............  40 deg.22.13' N..............  73 deg.52.13' W.       
U...............................  40 deg.22'08'' N..............  73 deg.53'34'' W..............  40 deg.22.13' N..............  73 deg.53.57' W.       
V...............................  40 deg.21'52'' N..............  73 deg.52'30'' W..............  40 deg.21.87' N..............  73 deg.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 deg.25'39'' N..............  73 deg.51'48'' W..............  40 deg.25.65' N..............  73 deg.51.80' W.       
E...............................  40 deg.23'48'' N..............  73 deg.51'48'' W..............  40 deg.23.80' N..............  73 deg.51.80' W.       
J...............................  40 deg.23'48'' N..............  73 deg.51'06'' W..............  40 deg.23.80' N..............  73 deg.51.10' W.       
K...............................  40 deg.25'39'' N..............  73 deg.51'06'' W..............  40 deg.25.65' N..............  73 deg.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


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