[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20590-20598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8193]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2012-0197; FRL-9654-6]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Sites Offshore of Yaquina Bay, OR

AGENCY: The Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to designate two new ocean dredged 
material disposal (ODMD) sites offshore of Yaquina Bay, Oregon pursuant 
to the Marine Protection, Research and Sanctuaries Act (MPRSA), as 
amended. The new sites are needed primarily to serve the long-term need 
for a location to dispose of material dredged from the Yaquina River 
navigation channel, and to provide a location for the disposal of 
dredged material for persons who have

[[Page 20591]]

received a permit for such disposal. The newly designated sites will be 
subject to ongoing monitoring and management to ensure continued 
protection of the marine environment.

DATES: Comments on this proposed rule must be received no later than 
May 7, 2012.

ADDRESSES: For more information on this proposed rule, Docket ID No. 
EPA-R10-OW-2012-0197 use one of the following methods:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
accessing the docket and materials related to this proposed rule.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#3d7152554f505c53137f4f54595a584949587d584d5c135a524b"><span class="__cf_email__" data-cfemail="8fc3e0e7fde2eee1a1cdfde6ebe8eafbfbeacfeaffeea1e8e0f9">[email protected]</span></a>.
    <bullet> Mail: Bridgette Lohrman, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs, 
Environmental Review and Sediment Management Unit, Oregon Operations 
Office, 805 SW Broadway, Suite 500, Portland, Oregon 97205.

Publicly available docket materials are available either electronically 
at www.regulations.gov or in hard copy during normal business hours 
from the regional library at the U.S. Environmental Protection Agency, 
Region 10 Library, 10th Floor, 1200 Sixth Avenue, Seattle, Washington 
98101. For access to the documents at the Region 10 Library, contact 
the Region 10 Library Reference Desk at (206) 553-1289, between the 
hours of 9 a.m. to 12 p.m., and between the hours of 1 p.m. to 4 p.m., 
Monday through Friday, excluding legal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Bridgette Lohrman, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs, Environmental Review and Sediment Management Unit, Oregon 
Operations Office, 805 SW Broadway, Suite 500, Portland, Oregon 97205; 
phone number (503) 326-4006; email: <a href="/cdn-cgi/l/email-protection#571b383f253a36397915253e3330322323321732273679303821"><span class="__cf_email__" data-cfemail="a0eccfc8d2cdc1ce8ee2d2c9c4c7c5d4d4c5e0c5d0c18ec7cfd6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval by the EPA to dispose of dredged 
material into ocean waters pursuant to the Marine Protection, Research, 
and Sanctuaries Act (MPRSA), as amended, 33 U.S.C. 1401 to 1445. The 
EPA's proposed action would be relevant to persons, including 
organizations and government bodies seeking to dispose of dredged 
material in ocean waters offshore of Yaquina Bay, Oregon. Currently, 
the U.S. Army Corps of Engineers (Corps) would be most affected by this 
action. Potentially affected categories and persons include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated persons
------------------------------------------------------------------------
Federal government.....................  U.S. Army Corps of Engineers
                                          Civil Works projects, and
                                          other Federal agencies.
Industry and general public............  Port authorities, marinas and
                                          harbors, shipyards and marine
                                          repair facilities, berth
                                          owners.
State, local and tribal governments....  Governments owning and/or
                                          responsible for ports,
                                          harbors, and/or berths,
                                          Government agencies requiring
                                          disposal of dredged material
                                          associated with public works
                                          projects.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding persons likely to be affected by this 
action. For any questions regarding the applicability of this action to 
a particular person, please refer to the contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

A. History of Disposal Sites Offshore of Yaquina Bay, Oregon

    The Corps historically used the general area offshore of Yaquina 
Bay for dredged material disposal. In 1977, an Interim ODMD site 
offshore of Yaquina Bay received EPA interim designation and was used 
by the Corps for dredged material disposal after 1977 and prior to 1986 
(Figure 1). However, because of increased mounding in the Interim Site 
and its potential adverse effect on navigation safety, the Corps 
selected an alternate ODMD site, the ``Adjusted Site,'' under the 
authority of section 103 of the MPRSA, with EPA concurrence. The Corps 
began to use this ``Adjusted Site'' in 1986. By 1990, dredged material 
had accumulated in the Adjusted Site to an extent that necessitated 
careful placement of material on specific portions of the Adjusted 
Site. In 2000, the Corps ceased disposal of material at the Adjusted 
Site. In 2001, the Corps and the EPA completed an examination of 
possible new locations for ocean disposal further offshore from the 
entrance to Yaquina Bay. The recommended locations from that study are 
the proposed Yaquina North and South Sites.
    In October 2000, these disposal sites were authorized to be used by 
the Corps, with EPA concurrence, under Section 103 of the MPRSA as 
selected sites. The Yaquina North Site has been the preferred site for 
disposal. The authorization to use the Yaquina North Site under section 
103 of the MPRSA expired at the end of the 2011 dredge season and is 
unavailable for future dredge seasons unless designated as proposed in 
this action. Since the Yaquina South Site has never been used for 
disposal of dredged material due to prevailing southwest winds, it is 
currently available for use as a selected site under section 103. To 
provide for sufficient disposal capacity over the long term, the EPA 
proposes to designate both a Yaquina North Site and a Yaquina South 
Site under section 102 of the MPRSA, for the ocean disposal of dredged 
material offshore of Yaquina Bay using the footprints of the section 
103 selected sites.
    The proposed designation of the two ocean disposal sites for 
dredged material does not mean that the Corps or the EPA has approved 
the use of the Sites for open water disposal of dredged material from 
any specific project. Before any person can dispose dredged material at 
either of the proposed Sites, the EPA and the Corps must evaluate the 
project according to the ocean dumping regulatory criteria (40 CFR part 
227) and authorize the disposal. The EPA independently evaluates 
proposed dumping and has the right to restrict and/or disapprove of the 
actual disposal of dredged material if the EPA determines that 
environmental requirements under the MPRSA have not been met.

B. Location and Configuration of Yaquina North and South Ocean Dredged 
Material Disposal Sites

    This action proposes the designation of two ocean dredged material 
sites to the north and south, respectively, offshore of Yaquina Bay. 
The location of the two proposed ocean dredged material disposal sites 
(Yaquina North and South ODMD Sites, North and

[[Page 20592]]

South Sites, or Sites) are bounded by the coordinates, listed below, 
and shown in Figure 1. The proposed designation of these two Sites will 
allow the EPA to adaptively manage the Sites to maximize their 
capacity, minimize the potential for mounding and associated safety 
concerns, and minimize the potential for any long-term adverse effects 
to the marine environment.
    The coordinates for the two Sites are, in North American Datum 83 
(NAD 83):

------------------------------------------------------------------------
          Yaquina North ODMD Site              Yaquina South ODMD Site
------------------------------------------------------------------------
44[deg]38'17.98'' N, 124[deg]07'25.95'' W   44[deg]36'04.50'' N,
                                             124[deg]07'52.66'' W
44[deg]38'12.86'' N, 124[deg]06'31.10'' W   44[deg]35'59.39'' N,
                                             124[deg]06'57.84'' W
44[deg]37'14.33'' N, 124[deg]07'37.57'' W   44[deg]35'00.85'' N,
                                             124[deg]08'04.27'' W
44[deg]37'09.22'' N, 124[deg]06'42.73'' W   44[deg]34'55.75'' N,
                                             124[deg]07'09.47'' W
------------------------------------------------------------------------

The two proposed Sites are located in approximately 112 to 152 feet of 
water, and are located to the north and south of the entrance to 
Yaquina Bay on the central Oregon Coast. The proposed Yaquina North 
Site would be located about 1.7 nautical miles northwest of the 
entrance to Yaquina Bay and the proposed Yaquina South Site would be 
located about 2.0 nautical miles southwest of the bay's entrance. Both 
ocean disposal sites would be 6,500 feet long by 4,000 feet wide, about 
597 acres each.
BILLING CODE 6560-50-P

[[Page 20593]]

[GRAPHIC] [TIFF OMITTED] TP05AP12.002

BILLING CODE 6560-50-C

C. Management and Monitoring of the Sites

    The proposed Sites are expected to receive sediments dredged by the 
Corps to maintain the federally authorized navigation project at 
Yaquina Bay, Oregon and dredged material from other persons who have 
obtained a permit for the disposal of dredged material at the Sites. 
All persons using the Sites are required to follow a Site Management 
and Monitoring Plan (SMMP) for the Sites. The SMMP includes management 
and monitoring requirements to ensure that dredged materials disposed 
at the Sites are suitable for disposal in the ocean and that adverse 
impacts of disposal, if any, are addressed to the maximum extent 
practicable. The SMMP for the Yaquina North and South Sites, in 
addition to the aforementioned, also addresses management of the Sites 
to ensure adverse mounding does not occur and to ensure that disposal 
events minimize interference with other uses of

[[Page 20594]]

ocean waters in the vicinity of the proposed Sites. The SMMP is 
available as a draft document for review and comment at this time. The 
public is encouraged to take advantage of this opportunity to read and 
submit comments on the draft SMMP.

D. MPRSA Criteria

    In proposing to designate these Sites, the EPA assessed the 
proposed Sites according to the criteria of the MPRSA, with particular 
emphasis on the general and specific regulatory criteria of 40 CFR part 
228, to determine whether the proposed site designations satisfy those 
criteria. The EPA's draft Yaquina Bay, Oregon Ocean Dredged Material 
Disposal Sites Evaluation Study and Environmental Assessment, [February 
2012] (EA), provides an extensive evaluation of the criteria and other 
related factors for the designation of these Sites. The EA is available 
as a draft document for review and comment at this time. The public is 
encouraged to take advantage of this opportunity to read and submit 
comments on the draft EA.
General Criteria (40 CFR 228.5)
    1. Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    The EPA reviewed the potential for the Sites to interfere with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas and found low potential for conflicts. 
The proposed Sites spatially overlap with recreational activities such 
as boating and whale watching, recreational and commercial finfish or 
Dungeness crab fishing, tow lane agreements between tow boat operations 
and Dungeness crab fishermen, and recreational and commercial 
navigation. However, the Sites are unlikely to cause interference with 
these or other uses provided close communication and coordination is 
maintained among users, vessel traffic control and the U.S. Coast 
Guard. Recreational users are expected to more heavily use areas that 
are shoreward of the Sites and to focus their activities on Yaquina 
Reef. Commercial fishing, including that for salmon and Dungeness crab, 
is expected to occur at the Sites, but the EPA does not expect disposal 
operations at the Sites to conflict with this use because of the 
limited space and time during which disposal occurs. The draft SMMP 
outlines site management objectives, including minimizing interference 
with other uses of the ocean. Should a site use conflict be identified, 
site use could be modified according to the SMMP to minimize that 
conflict.
    2. Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    Based on the EPA's review of modeling, monitoring data, sediment 
quality, and history of use, no detectable contaminant concentrations 
or water quality effects, e.g., suspended solids, would be expected to 
reach any beach or shoreline from disposal activities at the Sites. The 
primary impact of disposal activities on water quality is expected to 
be temporary turbidity caused by the physical movement of sediment 
through the water column. All dredged material proposed for disposal 
will be evaluated according to the ocean dumping regulations at 40 CFR 
227.13 and guidance developed by the EPA and the Corps. In general, 
dredged material which meets the criteria under 40 CFR 227.13(b) is 
deemed environmentally acceptable for ocean dumping without further 
testing. Dredged material which does not meet the criteria of 40 CFR 
227.13(b) must be further tested as required by 40 CFR 227.13(c).
    Disposal of suitable material meeting the regulatory criteria and 
deemed environmentally acceptable for ocean dumping will be allowed at 
the proposed Sites. Most of the dredged material (approximately 95%) to 
be disposed at the Sites is expected to be sandy material, while a 
small amount of material (up to 5% of the material) would be classified 
as fine-grained. Hopper dredges, which are typically used for the 
Corps' annual navigation dredging, are not capable of removing debris 
from the dredge site. However, specific projects may utilize a 
clamshell dredge, in which case there is the potential for the 
occasional placement of naturally occurring debris at the disposal 
Sites.
    3. The sizes of disposal sites will be limited in order to localize 
for identification and control any immediate adverse impacts, and to 
permit the implementation of effective monitoring and surveillance to 
prevent adverse long-range impacts. Size, configuration, and location 
are to be determined as part of the disposal site evaluation (40 CFR 
228.5(d)).
    To ensure that site managers can be responsive to the specifics of 
each dredging season based on dredge schedules, weather, and bathymetry 
at the Sites, the EPA proposes to designate both the North and South 
Sites. The footprints of the proposed Sites are designed to maximize 
their capacity, helping to assure minimal mounding and minimize any 
adverse affects to the wave climate. The presence of Yaquina Reef, 
close to shore at shallow depths, prevents nearshore designation and 
dredged material disposal in dispersive locations at depths less than 
60 feet. The North Site will be the preferred placement area for 
disposal of dredged material as was the case when the Site was used as 
a Section 103 selected site. During some periods, disposal may be 
alternated between the two Sites. The use of the South Site is more 
dependent upon wind and wave conditions, particularly in April and May 
when the typical dredge season starts, and for this reason will tend to 
be used less frequently than the North Site. Effective monitoring of 
the Sites is necessary and required. The EPA will require annual 
bathymetric surveys for each Site to track site capacity and to assess 
the potential for mounding concerns. These surveys will inform the 
active management of the proposed Sites.
    4. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    Disposal areas located off of the continental shelf would be at 
least 20 nautical miles offshore. This distance is well beyond the 4.5 
nautical mile haul distance determined to be feasible by the Corps for 
maintenance of their Yaquina Bay project. Additional disadvantages to 
off-shelf ocean disposal would be the unknown environmental impacts of 
disposal on deep-sea, stable, fine-grained benthic communities and the 
higher cost of monitoring sites in deeper waters and further offshore.
    Historic disposal has occurred at the proposed location for these 
Sites. The substrate of the proposed Sites is similar grain size to the 
disposal material and the placement avoids the unique habitat features 
of Yaquina Reef.
Specific Criteria (40 CFR 228.6)
    1. Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    The EPA does not anticipate that the geographical position of the 
proposed Sites, including the depth, bottom

[[Page 20595]]

topography and distance from the coastline, will unreasonably degrade 
the marine environment. To help avoid adverse mounding at the Sites, 
site management will generally include uniform placement, i.e., 
spreading disposal material throughout the Sites in a manner that will 
result in a relatively uniform accumulation of disposed material on the 
bottom over the long-term. Site management will include creating dump 
plans for each Site where disposal will occur. Dump plans establish 
cells within the Site to ensure uniform placement. In addition to 
minimizing mounding, the uniform placement is expected to minimize the 
thickness of disposal accumulations which is expected to be less 
disruptive to benthic communities and aquatic species, such as crabs, 
that might be present at the Sites during disposal events. Because the 
proposed Sites are relatively deep, to avoid the nearshore Yaquina 
Reef, they are not considered dispersive. Material placed in the Sites 
is not expected to move from the Sites except during large storm 
events.
    2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2)).
    The proposed Sites are not located in exclusive breeding, spawning, 
nursery, feeding or passage areas for adult or juvenile phases of 
living resources. At and in the immediate vicinity of the proposed 
Sites, a variety of pelagic and demersal fish species, including 
salmon, green sturgeon, and flatfish, as well as Dungeness crab, are 
found. Studies conducted by the EPA and the Corps at the proposed Sites 
found the benthic infaunal and epifaunal community to be dominated by 
organisms that are adapted to a sandy environment. The benthic species, 
densities and diversities collected during these studies were typical 
of the nearshore sandy environment along the Oregon coast.
    3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The proposed Sites are approximately 2 nautical miles off the beach 
in water depths greater than 100 feet and beyond the ecologically and 
economically important Yaquina Reef. Given the depth of these Sites, 
the material is not expected to disperse from the Sites except during 
infrequent large storm events. Thus, impacts to beaches or the reef 
will be avoided. The sand removed from the Newport littoral cell is not 
expected to affect Newport's beaches because Pacific Northwest beaches 
tend to respond strongly to storm effects, the episodic nature of which 
would mask any long-term discrete changes such as disposal at these 
Sites. Site monitoring and adaptive management are components of the 
proposed SMMP to ensure beaches and other amenity areas are not 
adversely impacted.
    4. Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material found suitable for ocean disposal pursuant to the 
regulatory criteria for dredged material, or characterized by chemical 
and biological testing and found suitable for disposal into ocean 
waters, will be the only material allowed to be disposed at the Sites. 
No material defined as ``waste'' under the MPRSA will be allowed to be 
disposed at the Sites. The dredged material to be disposed at the Sites 
will be predominantly marine sand. Generally, disposal is expected to 
occur from a hopper dredge, in which case, material will be released 
just below the surface while the disposal vessel remains under power 
and slowly transits the disposal location. This method of release is 
expected to spread material at the Sites to minimize mounding, while 
minimizing impacts to the benthic community and to aquatic species 
present at the Sites at the time of a disposal event.
    5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).
    The EPA expects monitoring and surveillance at the Sites to be 
feasible and readily performed from small, surface research vessels. 
The EPA will ensure monitoring of the sites for physical, biological 
and chemical attributes. Bathymetric surveys will be conducted 
annually, contaminant levels in the dredged material will be analyzed 
prior to dumping, and the benthic infauna and epibenthic organisms will 
be monitored every 5 years, as funding allows.
    6. Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    Disposal at the proposed Sites will not degrade the existing wave 
environment within or outside the Sites. The placement of dredged 
material may have a minor effect on circulation within or outside the 
site boundaries. Due to the size of the mound resulting from the 
accumulated dredged material (10-14 feet high covering 597 acres) over 
20 years, it is possible the currents in the vicinity of the Sites may 
be affected. Any potential effect would not be expected to occur until 
a substantial amount of dredged material has been placed at the site 
(4-6 million cubic yards). At that time, the EPA plans to re-assess 
these assumptions and associated potential effects. Currently, disposal 
has occurred at the North Site for 10 years with a total disposal 
volume of approximately 2.2 million cubic yards.
    7. Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The proposed North Site was used for disposal of dredged material 
from 2001 to 2011. The seafloor elevation at the Site has risen 12 feet 
in a few locations. Annual bathymetric surveys will continue to be 
conducted to monitor mounding at the North Site. To date disposal of 
dredged material has not changed the benthic infaunal nor epifaunal 
species expected to inhabit nearshore sandy substrates at this 
location. The South Site, selected by the Corps under their Section 103 
authority under the MPRSA, has never been used. Preferential use of the 
North Site is expected at this time, but capacity and other factors may 
result in more frequent use of the South Site in the future. The 
proposed SMMP includes monitoring and adaptive management measures to 
address potential mounding issues.
    8. Interference with Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 
228.6(a)(8)).
    The proposed Sites are not expected to interfere with shipping, 
fishing, recreation or other legitimate uses of the ocean. Commercial 
and recreational fishing and commercial navigation are the primary 
activities that may spatially overlap with disposal at the Sites. This 
overlap is more likely at the South Site given the South Site's 
proximity to the commercial shipping lane and a more direct alignment 
with the entrance channel to Yaquina Bay. The likelihood of direct 
interference with these activities is low, provided there is close 
communication and coordination among users, vessel traffic control and 
the U.S. Coast Guard. The EPA is not aware of any plans for mineral 
extraction, desalination plants, or fish and shellfish culture 
operations near the proposed Sites at this time. The proposed Sites are 
not located in areas of special scientific importance. They are located 
to the south of the Newport Hydrographic line, south of the proposed 
Northwest National Marine Renewable Energy Center's nearshore test 
facility, and west of the Yaquina Reef.

[[Page 20596]]

    9. The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    The EPA has not identified any potential adverse water quality 
impacts from the proposed ocean disposal of dredged material at the 
Sites based on water and sediment quality analyses conducted in the 
study area of the Sites, and based on past disposal experience at the 
proposed North Site when it was used as a Section 103 selected site. 
Benthic grabs and trawl data show the ecology of the area to be that 
associated with sandy nearshore substrate typical of the Oregon Coast.
    10. Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed Sites. Material expected to be disposed at 
the Sites will be uncontaminated marine sands similar to the sediment 
present at the Sites. Some fine-grained material, finer than natural 
background, may also be disposed. While this finer-grained material 
could have the potential to attract nuisance species to the Sites, no 
such recruitment is known to have taken place at the proposed North 
Site while the Site was used as a Section 103 selected site. The 
proposed SMMP includes benthic infaunal and epifaunal monitoring 
requirements, which will act to identify any nuisance species and allow 
the EPA to direct special studies and/or operational changes to address 
the issue if it arises.
    1. Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    No significant cultural features have been identified at, or in the 
vicinity of, the proposed Sites at this time. The EPA is coordinating 
with Oregon's State Historic Preservation Officer and with Tribes in 
the vicinity of the Sites to identify any cultural features. The EPA 
expects to complete that coordination effort before making a final 
decision on the proposed Sites. No shipwrecks have been observed or 
documented within the proposed Sites or their immediate vicinity.

III. Environmental Statutory Review--National Environmental Policy Act 
(NEPA); Magnuson-Stevens Act (MSA); Marine Mammal Protection Act 
(MMPA); Coastal Zone Management Act (CZMA); Endangered Species Act 
(ESA); National Historic Preservation Act (NHPA)

A. NEPA

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to 
prepare an Environmental Impact Statement (EIS) for major federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to EPA designations of ocean disposal sites under 
the MPRSA because the courts have exempted the EPA's actions under the 
MPRSA from the procedural requirements of NEPA through the functional 
equivalence doctrine. The EPA has, by policy, determined that the 
preparation of NEPA documents for certain EPA regulatory actions, 
including actions under the MPRSA, is appropriate. The EPA's ``Notice 
of Policy and Procedures for Voluntary Preparation of NEPA Documents,'' 
(Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998), sets out both 
the policy and procedures the EPA uses when preparing such 
environmental review documents. The EPA's primary voluntary NEPA 
document for designating the Sites is the draft Yaquina Bay, Oregon 
Ocean Dredged Material Disposal Sites Evaluation Study and 
Environmental Assessment, [February 2012] (EA), jointly prepared by the 
EPA and the Corps. The draft EA and its Technical Appendices, which are 
part of the docket for this action, provide the threshold environmental 
review for designation of the two Sites. The information from the 
proposed EA is used above, in the discussion of the ocean dumping 
criteria.

B. MSA and MMPA

    The EPA prepared an essential fish habitat (EFH) assessment 
pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-
Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted 
that assessment to the National Marine Fisheries Service (NMFS) on 
December 19, 2011. NMFS is reviewing the EPA's EFH assessment and an 
Endangered Species Act (ESA) Biological Assessment and addendum thereto 
for purposes of the Marine Mammal Protection Act of 1972, as amended 
(MMPA), 16 U.S.C. 1361 to 1389. The EPA will not take final action on 
the proposed Sites until the NMFS review is complete.

C. CZMA

    The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 
to 1465, requires Federal agencies to determine whether their actions 
will be consistent to the extent practicable with the enforceable 
policies of approved state programs. The EPA prepared a consistency 
determination for the Oregon Coastal Management Program (OCMP), the 
approved state program in Oregon, to meet the requirements of the CZMA 
and submitted that determination to the Oregon Department of Land 
Conservation and Development (DLCD) for review on February 17, 2012. 
The EPA will not take final action on the proposed Sites until the DLCD 
review of EPA's consistency determination is complete.

D. ESA

    The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 
1544, requires Federal agencies to consult with NMFS and the U.S. Fish 
and Wildlife Service (USFWS) to ensure that any action authorized, 
funded, or carried out by the Federal agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of any critical habitat. The EPA prepared a Biological Assessment (BA) 
to assess the potential effects of designating the two proposed Sites 
on aquatic and wildlife species and submitted that BA to the NMFS and 
USFWS on December 19, 2011. The EPA found that site designation does 
not have a direct impact on any of the identified ESA species, and also 
found that indirect impacts associated with reasonably foreseeable 
future disposal activities had to be considered. These anticipated 
indirect impacts from disposal included a short-term increase in 
suspended sediment, short-term disruption in avian foraging behavior, 
modification of bottom topography, loss of benthic prey species from 
burial, and loss of pelagic individuals during disposal of material 
through the water column. The EPA concluded that its action may affect, 
but is not likely to adversely affect 18 ESA-listed species and is not 
likely to adversely affect designated critical habitat for southern 
green sturgeon (Acipenser medirostris) but is likely to adversely 
affect Oregon Coast coho salmon (Oncorhynchus kisutch). The USFWS 
concurred on EPA's finding that the proposed action is not likely to 
adversely affect listed endangered or threatened species under the

[[Page 20597]]

jurisdiction of the USFWS. The EPA will not take final action on the 
proposed Sites until consultation with NMFS under the ESA is complete.

E. NHPA

    The EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) on February 27, 2012, to address the 
National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 
470a-2, which requires Federal agencies to take into account the effect 
of their actions on districts, sites, buildings, structures, or 
objects, included in, or eligible for inclusion in the National 
Register. The EPA determined that no historic properties were affected, 
or would be affected, by designation of the Sites. The EPA did not find 
any historic properties within the geographic area of the Sites. This 
determination was based on a review of the National Register of 
Historic Districts in Oregon, the Oregon National Register list and an 
assessment of potential cultural resources near the Sites. The EPA will 
not take final action on the proposed Sites until the coordination with 
the SHPO is complete.

IV. Statutory and Executive Order Reviews

    This rule proposes the designation of two ocean dredged material 
disposal sites pursuant to Section 102 of the MPRSA. This proposed 
action complies with applicable executive orders and statutory 
provisions as follows:

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a ``significant regulatory action'' 
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under Executive Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    In this proposed site designation, the EPA does not reasonably 
anticipate collection of information from ten or more people based on 
the historic use of designated sites. Consequently, the proposed action 
is not subject to the Paperwork Reduction Act.

C. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires Federal 
agencies to prepare a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
For purposes of assessing the impacts of this rule on small entities, 
small entity is defined as: A small business defined by the Small 
Business Administration's size regulations at 13 CFR 121.201; a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and a small organization that is any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field. The EPA determined that this proposed action will not have a 
significant economic impact on small entities because the proposed rule 
will only have the effect of regulating the location of sites to be 
used for the disposal of dredged material in ocean waters. After 
considering the economic impacts of this proposed rule, I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities.

D. Unfunded Mandates Reform Act

    This proposed action contains no Federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of 
1995, 2 U.S.C. 1531 to 1538, for State, local, or tribal governments or 
the private sector. This action imposes no new enforceable duty on any 
State, local or tribal governments or the private sector. Therefore, 
this action is not subject to the requirements of sections 202 or 205 
of the UMRA. This action is also not subject to the requirements of 
section 203 of the UMRA because it contains no regulatory requirements 
that might significantly or uniquely affect small government entities. 
Those entities are already subject to existing permitting requirements 
for the disposal of dredged material in ocean waters.

E. Executive Order 13132: Federalism

    This proposed action does not have federalism implications. It does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among various levels of government, as 
specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this action. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between the EPA 
and State and local governments, the EPA specifically solicits comment 
on this proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 because the designation of the two 
ocean dredged material disposal Sites will not have a direct effect on 
Indian Tribes, on the relationship between the federal government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the federal government and Indian Tribes. Thus, Executive Order 
13175 does not apply to this action. Although Executive Order 13175 
does not apply to this proposed action the EPA consulted with tribal 
officials in the development of this action, particularly as the action 
relates to potential impacts to historic or cultural resources. The EPA 
specifically solicits additional comment on this proposed action from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under Section 5-501 of the Executive 
Order has the potential to influence the regulation. This proposed 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. The proposed action concerns the designation of two ocean 
dredged material disposal sites and only has the effect of providing 
designated locations to use for ocean disposal of dredged material 
pursuant to Section 102(c) of the MPRSA. We welcome comments on this 
proposed action related to this Executive Order.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed action is not subject to Executive Order 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355) because it is not a 
``significant regulatory action'' as defined under Executive Order 
12866. We welcome comments on this proposed action related to this 
Executive Order.

[[Page 20598]]

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272), 
directs the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposed 
action includes environmental monitoring and measurement as described 
in EPA's proposed SMMP. The EPA will not require the use of specific, 
prescribed analytic methods for monitoring and managing the designated 
Sites. The Agency plans to allow the use of any method, whether it 
constitutes a voluntary consensus standard or not, that meets the 
monitoring and measurement criteria discussed in the proposed SMMP. The 
EPA welcomes comments on this aspect of the proposed rulemaking and, 
specifically, invites the public to identify potentially-applicable 
voluntary consensus standards and to explain why such standards should 
be used in this proposed action.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The EPA determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The EPA has assessed the overall protectiveness of 
designating the disposal Sites against the criteria established 
pursuant to the MPRSA to ensure that any adverse impact to the 
environment will be mitigated to the greatest extent practicable. We 
welcome comments on this proposed action related to this Executive 
Order.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of Section 
102 of the Marine Protection, Research, and Sanctuaries Act, as 
amended, 33 U.S.C. 1401, 1411, 1412.

    Dated: March 20, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.

    For the reasons set out in the preamble, The EPA proposes to amend 
chapter I, title 40 of the Code of Federal Regulations as follows:

PART 228--[AMENDED]

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

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

    2. Section 228.15 is amended by adding paragraph (n)(15) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (15) Yaquina Bay, OR--North and South Ocean Dredged Material 
Disposal Sites.
    (i) North Site.
    (A) Location: 44[deg]38'17.98'' N, 124[deg]07'25.95'' W, 
44[deg]38'12.86'' N, 124[deg]06'31.10'' W, 44[deg]37'14.33'' N, 
124[deg]07'37.57'' W, 44[deg]37'09.22'' N, 124[deg]06'42.73'' W.
    (B) Size: Approximately 1.07 nautical miles long and 0.66 nautical 
miles wide (0.71 square nautical miles); 597 acres (242 hectares).
    (C) Depth: Ranges from approximately112 to 152 feet (34 to 46 
meters).
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 227.13 
from the Yaquina Bay and River navigation channel and adjacent areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (3) Monitoring, as specified in the SMMP, is required.
    (ii) South Site
    (A) Location: 44[deg]36'04.50'' N, 124[deg]07'52.66'' W, 
44[deg]35'59.39'' N, 124[deg]06'57.84'' W, 44[deg]35'00.85'' N, 
124[deg]08'04.27'' W, 44[deg]34'55.75'' N, 124[deg]07'09.47'' W.
    (B) Size: Approximately 1.07 nautical miles long and 0.66 nautical 
miles wide (0.71 square nautical miles); 597 acres (242 hectares).
    (C) Depth: Ranges from approximately 112 to 152 feet (34 to 46 
meters).
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 
227.13, from the Yaquina Bay and River navigation channel and adjacent 
areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (3) Monitoring, as specified in the SMMP, is required.

[FR Doc. 2012-8193 Filed 4-4-12; 8:45 am]
BILLING CODE 6560-50-P


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