17406 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr. You may 

also access a frequently updated 

electronic version of 40 CFR part 180 

through the Government Printing 

Office’s pilot e-CFR site at http:// 

www.gpoaccess.gov/ecfr. 

II. Prior Diazinon Tolerance 

Rulemaking 

On May 21, 2008 (73 FR 29456) (FRL– 

8362–1), EPA proposed the revocation 

of the tolerance for residues of diazinon, 

O, O-diethyl O-[6-methyl-2-(1- 

methylethyl)-4- 

pyrimidinyl]phosphorothioate; (CAS 

Reg. No. 333–41–5), in or on the food 

commodity grape at 0.75 parts per 

million (ppm) in 40 CFR 180.153(a) 

because the use on grapes had been 

canceled. The proposal neither 

discussed nor took into account the fact 

that an existing stocks provision in the 

cancellations allowed continued use of 

existing diazinon stocks until December 

2008. No comments were received in 

response to the proposal expressing 

objections to the revocation of the 

diazinon tolerance on grapes. EPA 

published a final rulemaking on 

September 10, 2008 (73 FR 52607) 

(FRL–8379–3) revoking the diazinon 

tolerance on grapes. 

III. The California Grape and Tree 

Fruit League Objection 

On November 10, 2008, the California 

Grape and Tree Fruit League filed an 

objection to the tolerance rulemaking 

pursuant to 21 U.S.C. 346a(g)(2)(A), 

objecting to the revocation of the 

diazinon tolerance on grapes. The basis 

of the California Grape and Tree Fruit 

League objection is that although the 

use on grapes has been canceled the 

tolerance is ‘‘still necessary to allow for 

the orderly exhaustion of existing 

stocks.’’ The California Grape and Tree 

Fruit League argued that a tolerance is 

therefore required for grapes treated 

with existing stocks of diazinon to allow 

the legally treated commodity to clear 

the channels of trade and preventing 

seizure of the treated grapes by the Food 

and Drug Administration. 

IV. Order on Objection 

Despite the fact that the California 

Grape and Tree Fruit League did not 

comment on this issue with respect to 

the proposed rule, because the proposal 

erroneously failed to take into account 

the existing stock provision, EPA in its 

discretion has considered the objection 

and found it to be sound. Accordingly, 

EPA, by this rule and order, and 

pursuant to section 408(g)(2)(C) of the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), is amending the diazinon 

tolerance in 40 CFR 180.153(a) to add a 

tolerance for grape at at 0.75 ppm. The 

tolerance will remain in effect until 

September 10, 2010. The Agency 

anticipates this should allow a 

reasonable period of time for the 

depletion of existing diazinon stocks 

and the clearance of diazinon treated 

grapes from the channels of trade. 

V. Conclusion 

Therefore, pursuant to section 

408(g)(2)(C) of FFDCA, a tolerance for 

the residues of diazinon, O, O-diethyl 

O-[6-methyl-2-(1-methylethyl)-4- 

pyrimidinyl]phosphorothioate; (CAS 

Reg. No. 333–41–5), in or on the food 

commodity grapes is added at 0.75 ppm 

until September 10, 2010. 

VI. Statutory and Executive Order 

Reviews 

EPA included the required statutory 

discussion in the September 10, 2008 

final rule (72 FR 52610). 

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

Agency promulgating the rule must 

submit a rule report to each House of 

the Congress and the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This rule is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: April 2, 2009. 

Debra Edwards, 

Director, Office of Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. In § 180.153, is amended by 

alphabetically adding the commodity to 

the table in paragraph (a) to read as 

follows: 

§ 180.153 Diazinon; tolerances for 

residues. 

(a) General. * * * 

Commodity Parts per million 

*****

Grape2 ............................ 0.75 

*****

* * * * * 

[FR Doc. E9–8117 Filed 4–14–09; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[EPA–R10–OW–2008–0745; FRL–8791–2] 

Ocean Dumping; Designation of Ocean 

Dredged Material Disposal Site 

Offshore of the Rogue River, OR 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On October 14, 2008, EPA 

published a proposed rule at 73 FR 

60662 to designate an ocean dredged 

material disposal site located offshore of 

the Rogue River, Oregon, and 

simultaneously withdrew an earlier 

proposal. EPA observed a typographical 

error in the proposed rule as published. 

In proposed rule, FR Doc. EPA–R10– 

OW–2008–0745, on page 60670 in the 

issue of October 14, 2008, in the first 

column, the very first coordinate was 

published as 42°24′5.40′′ N, but should 

have been published as 42°24′15.40′′ N. 

The coordinate was published correctly 

on page 60664 in the first column as 

42°24′15.40′′ N. EPA received no 

comments on the proposed rule. EPA 

did receive one letter, dated November 

12, 2008, from the Department of the 

Interior (DOI) stating that DOI had no 

comments. This action finalizes the 

designation of the Rogue River ocean 

dredged material disposal site, with the 

correct coordinates, pursuant to the 

Marine Protection, Research, and 

Sanctuaries Act, as amended (MPRSA), 

33 U.S.C. 1401 to 1445. The new site is 

needed primarily to serve as a long-term 

location for the disposal of material 

dredged from the Rogue River 

navigation channel. The new site will 

also serve to provide a location for the 

disposal of dredged material for persons 

who have received a permit for such 

disposal. The newly designated site will 

be subject to ongoing monitoring and 

management as specified in this rule 

and in the Site Management and 

Monitoring Plan, which is also finalized 

as part of this action. The monitoring 

and management requirements will help 

to ensure continued protection of the 

marine environment. 


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Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 17407 

DATES: Effective Date: This final rule 

will be effective May 15, 2009. 

ADDRESSES: For more information on 

this final rule, Docket ID No. EPA–R10– 

OW–2008–0745, use one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for accessing the 

docket and materials related to the final 

rule. 

• E-mail: 

Freedman.Jonathan@epa.gov 

• Mail: Jonathan Freedman, US 

Environmental Protection Agency, 

Region 10, Office of Ecosystems, Tribal 

and Public Affairs (ETPA–083), Aquatic 

Resources Unit, 1200 Sixth Avenue, 

Suite 900, Seattle, Washington 98101. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the US 

Environmental Protection Agency, 

Region 10, Library, 10th Floor, 1200 

Sixth Avenue, Suite 900, 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 11:30 a.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: 

Jonathan Freedman, US Environmental 

Protection Agency, Region 10, Office of 

Ecosystems, Tribal and Public Affairs 

(ETPA–083), Aquatic Resources Unit, 

1200 Sixth Avenue, Suite 900, Seattle, 

Washington 98101, phone number: 

(206) 553–0266, e-mail: 

freedman.jonathan@epa.gov, or contact 

Jessica Winkler, US Environmental 

Protection Agency, Region 10, Office of 

Ecosystems, Tribal and Public Affairs 

(ETPA–083), Aquatic Resources Unit, 

1200 Sixth Avenue, Suite 900, Seattle, 

Washington 98101, phone number: 

(206) 553–7369, e-mail: 

winkler.jessica@epa.gov. 

SUPPLEMENTARY INFORMATION: 

1. Potentially Affected Persons 

Persons potentially affected by this 

final action include those who seek or 

might seek permits or approval by EPA 

to dispose of dredged material into 

ocean waters pursuant to the Marine 

Protection, Research, and Sanctuaries 

Act, as amended (MPRSA), 33 U.S.C. 

sections 1401 to 1445. EPA’s action is 

relevant to persons, including 

organizations and government bodies, 

seeking to dispose of dredged material 

in ocean waters offshore of the Rogue 

River, Oregon. Currently, the US Army 

Corps of Engineers (Corps) will be most 

impacted by this final action. 

Potentially affected categories and 

persons include: 

Category Examples of potentially regulated persons 

Federal Government ........................................... US 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. 

2. Background 

a. History of Disposal Site Offshore of 

the Rogue River, Oregon 

The final Rogue River ocean dredged 

material disposal site, or areas in the 

same vicinity, were used by the Corps 

beginning in 1962. When the MPRSA 

was enacted, the site became an 

‘‘interim’’ site under the ocean dumping 

regulations, a status superseded by later 

statutory changes to the MPRSA. The 

site was selected for use by the Corps 

under Section 103 of the MPRSA. That 

authority allows the Corps to select a 

site for disposal when a site has not 

been designated. EPA concurred on that 

selection and in 2003 approved the 

Corps’ request to continue to use the site 

through the end of the 2008 dredging 

season. 

From 1986 through 2006, over 1.1 

million cubic yards (cy) of dredged 

material were placed at the Rogue River 

site. A uniform placement strategy, 

rather than point dumping, was applied 

to the disposal of material at the site and 

regular bathymetric surveys were 

conducted. Data collected from those 

surveys showed that persistent 

mounding did not occur within the site 

or in the vicinity of the site. Over the 

long-term, site capacity appears to be 

unconstrained based on the historical 

and anticipated disposal volumes 

because material placed redistributes 

out of the site, feeding the littoral cell. 


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17408 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 

b. Location and Configuration of Final 

Rogue River Ocean Dredged Material 

Disposal Site 

Figure 1, above, shows the Rogue 

River ocean dredged material disposal 

site (Rogue River ODMDS or Site) EPA 

designates in this action. The Site’s 

configuration is expected to allow 

dredged material disposed in shallower 

portions of the Site to naturally disperse 

into the littoral zone without creating 

mounding conditions that could 

contribute to adverse impacts to 

navigation. This final Site configuration 

will allow EPA to ensure that disposal 

of dredged material into the Site will be 

managed so that as much material as 

possible is retained in the active littoral 

drift area to augment shoreline building 

processes. 

The coordinates for the Rogue River 

ODMDS as finalized in this action are, 

in North American Datum 83 (NAD 83): 

42°24′15.40′′ N, 124°26′52.39′′ W 

42°24′03.40′′ N, 124°26′39.39′′ W 

42°23′39.40′′ N, 124°27′17.40′′ W 

42°23′51.40′′ N, 124°27′30.40′′ W 

The Site occupies approximately 116 

acres. The Site’s final dimensions are: 

1,400-feet wide by 3,600-feet long, with 

Site depth ranging from approximately 

50 to 90 feet. The Site generally lies on 

bottom contours sloping at a rate of 8/ 

1000 feet to the west-southwest. The 

disposal area, placement area, and drop 

zone for the Site are identical. 

c. Management and Monitoring of the 

Final Site 

The final Rogue River ODMDS is 

expected to receive sediments dredged 

by the Corps to maintain the federally 

authorized navigation project at the 

Rogue River, Oregon, and dredged 

material from other persons who have 

obtained a permit for the disposal of 

dredged material at the Site. The ocean 

dumping regulations do not require a 

modification of any existing permits 

issued before this final action. All 

persons using the Site are required to 

follow the final Site Management and 


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Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 17409 

Monitoring Plan (SMMP) for the Rogue 

River ODMDS which is available to the 

public as part of this action. The SMMP 

includes management and monitoring 

requirements to ensure that dredged 

materials disposed at the Site are 

suitable for disposal in the ocean. The 

final SMMP addresses the timing of 

disposal events to minimize interference 

with other uses of ocean waters in the 

vicinity of the Site. 

d. MPRSA Criteria 

EPA assessed this final action against 

the criteria of the MPRSA, with 

particular emphasis on the general and 

specific regulatory criteria of 40 CFR 

Part 228, and determined that the final 

site designation satisfies those criteria. 

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)). 

EPA’s assessment of information 

available at the time of this final rule 

included a review of the potential for 

interference with navigation, recreation, 

shellfisheries, aquatic resources, 

commercial fisheries, protected geologic 

features, and cultural and/or historically 

significant areas. While limited overlap 

was found to exist between disposal 

operations and salmon fishing, no 

observable conflicts were identified. No 

evidence was found to suggest that the 

final Site would cause interference with 

fisheries or with navigation in the Rogue 

River navigation channel. The final Site 

has been used over the past decades for 

dredged material disposal, most recently 

pursuant to Section 103 of the MPRSA, 

as a site selected by the Corps with 

EPA’s concurrence. Mariners in this 

area are accustomed to Site use. 

(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 EPA’s review of modeling, 

monitoring data and history of use, 

there is no indication that detectable 

contaminant concentrations or water 

quality effects would reach any beach, 

shoreline, or other area outside of the 

final Site. All dredged material 

proposed for disposal will be evaluated 

according to the ocean dumping 

regulations at 40 CFR 227.13 and 

guidance developed by 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). Suitable 

material can be disposed of at the Site. 

Modeling work performed by the Corps 

at the Umpqua River, demonstrates that 

water column turbidity, a temporary 

perturbation during disposal, would 

dissipate for an anticipated 97% of 

coarser material within a few minutes of 

disposal. The remaining 3% of the 

material, which would be classified as 

fine-grained, would dissipate within a 

half hour. Over time, some of the 

suitable disposed material would be 

expected to migrate into the active 

littoral drift system. 

(3) If Site designation studies show 

that any interim disposal sites do not 

meet the site selection criteria, use of 

such sites shall be terminated as soon as 

any alternate site can be designated (40 

CFR 228.5(c)). 

EPA’s recent final rule at 73 FR 74983 

(December 10, 2008) repealed obsolete 

regulations under the MPRSA regarding 

interim ocean dumping sites and 

interim ocean dumping criteria. EPA 

stated in the proposed rule that there are 

no interim sites near the Rogue Site, 

however, the category of ‘‘interim site’’ 

has since been removed from the ocean 

dumping criteria. 

(4) The sizes of disposal sites will be 

limited in order to localize for 

identification and control of 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)). 

EPA sized the final Site to meet this 

criterion. The final Site tends to be 

moderately dispersive in the near-shore 

area and tends to be less dispersive 

farther from shore. The overall stability 

of the Site, as indicated by the lack of 

adverse mounding, is a significant 

component of the justification for the 

size of the Site. Data collected by the 

Corps through bathymetric monitoring 

show the spread and movement of 

material after placement. The data 

establish that material from the Site 

eventually disperses over the footprint 

of the site and with seasonal movement 

disperses into the littoral system. 

Monitoring of the final Site is required 

in the SMMP and effective monitoring 

of the Site is anticipated based on past 

practice and current ability to monitor 

the location and conduct surveillance. 

(5) 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)). 

The final Site is located where 

historic disposal occurred with a history 

of minimal impact to the environment, 

and minimal impact to other uses and 

amenities. Locations off the continental 

shelf in the Pacific Ocean are generally 

inhabited by stable benthic and pelagic 

ecosystems on steeper gradients that are 

not well adapted to frequent disturbance 

events such as occur with the disposal 

of dredged material. Monitoring and 

surveillance of the final Site do not pose 

the challenges inherent in a site located 

beyond the edge of the continental shelf. 

Material disposed beyond the edge of 

the continental shelf would not be 

available to the littoral system. 

Specific Criteria (40 CFR 228.6) 

(1) Geographical Position, Depth of 

Water, Bottom Topography and 

Distance from Coast (40 CFR 

228.6(a)(1)). 

Based on the data available, the 

geographical position, including the 

depth of the final Site, bottom 

topography and distance from the 

coastline in the vicinity of the final Site, 

indicates that designation of the final 

Site will not cause adverse effects to the 

marine environment. EPA understands 

that the currents at the final Site and 

their influence on the movement of 

material in the area suggest there is a 

high likelihood that much of the 

material disposed at the Site will be 

transported to the littoral sediment 

circulation system. Limited onshore 

transport of material disposed of at the 

Site is not expected because of the 

nature of the prevailing currents and 

because wave transport in the vicinity of 

the Site trends alongshore. Net 

predicted material transport at the Site 

is southward in the summer months and 

northward during the remainder of the 

year. These transport mechanisms are 

expected to move material into the 

active littoral drift area. This movement 

is expected to allow for long-term 

disposal without creation of adverse 

mounding conditions. 

(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 final Site is not located in 

exclusive breeding, spawning, nursery 

or feeding areas for adult or juvenile 

phases of living resources. Modeling of 

the water column, which indicates that 

turbidity from a disposal event would 


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17410 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 

be expected to dissipate fairly rapidly, 

indicates that avoidance behavior by 

any species at the final Site would be 

short-term. 

(3) Location in Relation to Beaches 

and Other Amenity Areas (40 CFR 

228.6(a)(3)). 

The final Site, although located in 

close proximity to the Rogue River 

navigation channel, is located a 

sufficient distance offshore to avoid 

adverse impacts to beaches and other 

amenity areas. Transportation of 

dredges or barges to and from the final 

Site to dispose of dredged material is 

expected to be coordinated so as to 

avoid disturbance of other activities 

near the Rogue River entrance channel. 

(4) Types and Quantities of Wastes 

Final to be Disposed of, and Final 

Methods of Release, including Methods 

of Packing the Waste, if any (40 CFR 

228.6(a)(4)). 

Dredged material characterized by 

chemical and biological testing and 

found suitable for disposal into ocean 

waters will be the only material allowed 

to be disposed of at the final Site. No 

material defined as ‘‘waste’’ under the 

MPRSA will be allowed to be disposed 

of at the final Site. The dredged material 

expected to be disposed of at the Site 

will be predominantly marine sand, far 

removed from known sources of 

contamination. 

With respect to final methods of 

releasing material at the final Site, 

material will be released just below the 

surface from dredges while the dredges 

are under power and slowly transiting 

the final Site. This method of release is 

expected to spread material at the Site 

to minimize mounding and to minimize 

impacts to the benthic community and 

other species in, or near, the Site at the 

time of a disposal event. 

(5) Feasibility of Surveillance and 

Monitoring (40 CFR 228.6(a)(5)). 

Monitoring and surveillance at the 

final Site are expected to be feasible and 

easily performed from small surface 

research vessels. The final Site is 

accessible for bathymetric and side-scan 

sonar surveys. At a minimum, annual 

bathymetric surveys will be conducted 

at the final Site to confirm that no 

unacceptable mounding is taking place 

within the Site or its immediate 

vicinity. Routine monitoring is expected 

to concentrate on examining how the 

distribution of material in the nearshore portions of the Site augment 

littoral processes and how distribution 

of material in the deeper portions of the 

Site avoid or minimize mounding. 

(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)). 

Dispersal, horizontal transport and 

vertical mixing characteristics of the 

area at and in the vicinity of the final 

Site are complex. This complexity is 

partly a result of rocky reefs to the north 

of the final Site which appear to 

influence mass transport, and in part the 

complexity can be attributed to 

prevailing wave-induced motion and 

currents moving towards the north 

during much of the year. Wave-induced 

motion appears to cause near-constant 

mobilization of bottom sediment. The 

overall regional mass transport trend 

suggests that net littoral transport of 

material is to the north from the final 

Site. That overall littoral transport 

appears to be balanced by offshore 

transport from the mouth of the Rogue 

River to the north of the final Site such 

that there is shoreline accretion to the 

north and relative equilibrium of the 

shoreline to the south. 

(7) Existence and Effects of Current 

and Previous Discharges and Dumping 

in the Area (including Cumulative 

Effects) (40 CFR 228.6(a)(7)). 

The approximate annual loading 

volume of dredged material placed at 

the final Site is expected to equal 54,000 

cubic yards (cy) of material. This 

average was calculated by averaging 

seasonal material placement over 

disposal seasons from the time the site 

became a selected site. Annual 

monitoring of the Site is required in the 

final SMMP for the Site. The final 

SMMP includes requirements for 

managing the Site to address mounding 

issues if mounding occurs. 

(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)). 

Disposals at the final Site will be 

managed through the SMMP to 

minimize interference with other 

legitimate uses of the ocean through 

careful timing and staggering of 

disposals in the near-shore and deeper 

portions of the final Site. 

(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)). 

EPA did not identify any adverse 

water quality impacts or adverse 

impacts to overall ecology from the 

historic use of the final Site. 

(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 

final Site. The final SMMP includes 

specific biological monitoring 

requirements, which would act to 

identify any nuisance species, and 

management requirements, which 

would allow EPA to direct special 

studies and/or operational changes to 

address nuisance species. 

(11) 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)). 

The final Site is located about two 

nautical miles south-southeast of the 

Rogue Reef complex, an ecologically 

unique feature among a system of neritic 

reefs off the Oregon coast. Dredged 

material disposed at the final Site is 

generally expected to settle to the 

seafloor quickly. Naturally occurring 

littoral transport, which would not be 

expected to adversely affect aquatic 

communities in the reef areas, is 

anticipated on a small scale. No 

significant cultural features were 

identified at, or in the vicinity of, the 

final Site. As discussed below, EPA 

coordinated with Oregon’s State 

Historic Preservation Officer and with 

Tribes in the vicinity of the final Site to 

identify any cultural features. None 

were identified. No shipwrecks were 

observed or documented within the 

final Site or its immediate vicinity. 

e. 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) 

(1) 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. EPA’s NEPA 

regulations are found at 40 CFR Part 6. 

NEPA does not apply to EPA 

designations of ocean disposal sites 

because the courts have exempted EPA’s 

actions under the MPRSA from the 

procedural requirements of NEPA 

through application of the functional 

equivalence doctrine. EPA has, by 

policy, determined that the preparation 

of non-EIS NEPA documents for certain 

EPA regulatory actions, including 

actions under the MPRSA, is 

appropriate. EPA’s ‘‘Notice of Policy 

and Procedures for Voluntary 

Preparation of NEPA Documents,’’ 

(Voluntary NEPA Policy), 63 FR 58045, 


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Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 17411 

(October 29, 1998), sets out both the 

policy and procedures EPA uses when 

preparing such environmental review 

documents. EPA’s 2007 revisions to 40 

CFR Part 6 provided the framework EPA 

used to prepare the voluntary NEPA 

documents for this final action. 

EPA’s primary voluntary NEPA 

document for designating the final Site 

is the Rogue River, Oregon Ocean 

Dredged Material Disposal Site 

Evaluation Study and Environmental 

Assessment, 2009 (EA), jointly prepared 

by EPA and the Corps. The final EA and 

its Technical Appendices, are part of the 

docket for this final action, and provide 

the threshold environmental review for 

the Site designation. The information 

from the final EA is used extensively, 

above, in the discussion of the ocean 

dumping criteria. 

(2) MSA and MMPA 

In the spring of 2008, EPA initiated 

consultation with the National Marine 

Fisheries Service (NMFS) concerning 

essential fish habitat and protected 

marine mammals. EPA prepared an 

essential fish habitat (EFH) assessment 

pursuant to section 305(b) of the 

Magnuson-Stevens Act, as amended 

(MSA), 16 U.S.C. 1801 to 1891d. NMFS 

reviewed EPA’s EFH assessment and 

ESA Biological Assessment for purposes 

of the Marine Mammal Protection Act of 

1972, as amended (MMPA), 16 U.S.C. 

1361 to 1389. 

With respect to marine mammals, 

NMFS found that all potential adverse 

effects to ESA-listed marine mammals 

are discountable or insignificant. Those 

findings are documented in Appendix 

A. Marine Mammal Determinations of 

the Biological Opinion issued by NMFS 

to EPA on March 19, 2009. With respect 

to EFH, NMFS found that disposal of 

dredge material, an indirect effect of 

EPA’s action to designate the Rogue 

River ODMDS, will not alter the habitat 

value of the designated EFH at and in 

the vicinity of the Site. NMFS also 

concluded that impacts to forage base 

would be highly localized and any 

potential decrease in forage abundance 

is considered insignificant to the total 

food resources available to EFH 

management species. Finally, NMFS 

concluded that the safe passage of the 

EFH managed species will not be 

functionally changed by EPA’s Site 

designation and the subsequent disposal 

of dredged material. Those findings are 

documented in the Magnuson-Stevens 

Fishery Conservation and Management 

Act section of the NMFS Biological 

Opinion. NMFS included a 

‘‘conservation recommendation’’ to 

study fish behavior and interactions 

with disposed material at the Site. EPA 

will respond in a separate written 

response to NMFS’ recommendation. 

(3) CZMA 

EPA initiated consultation with the 

state of Oregon on coastal zone 

management issues in summer of 2008. 

EPA prepared a consistency 

determination for the Oregon Ocean and 

Coastal Management Program (OCMP) 

to meet the requirements of the Coastal 

Zone Management Act, as amended, 

(CZMA), 16 U.S.C. 1451 to 1465, and 

submitted that determination formally 

to the Oregon Department of Land 

Conservation and Development (DLCD) 

in November. DLCD publicly noticed 

EPA’s consistency determination and 

took comments on the action until 

January 2, 2009. DLCD received one 

comment from the Oregon Department 

of Fish and Wildlife (ODFW) expressing 

support for the designation of the Rogue 

River Site and supporting ocean 

disposal of dredged material as the best 

alternative. ODFW also characterized 

disposal of material in the littoral zone 

as a beneficial use. ODFW did express 

concern with the relationship of the Site 

to rocky terrain and with the potential 

impacts of uniform disposal. 

DLCD concurred on EPA’s 

determination of consistency with one 

condition. The condition calls for the 

SMMP to assure that monitoring 

measures for the Rogue River Site are 

reasonably likely to identify significant 

unanticipated adverse effects on 

renewable marine resources, biological 

diversity of marine life and the 

functional integrity of the marine 

ecosystem at the site, and further asks 

that the SMMP include adaptive 

management measures to avoid 

significant impairment of the Site and 

significant decreases in abundance of 

commercial or recreational caught 

species from direct or indirect effects on 

important or essential habitat at the Site. 

DLCD responded to the concerns 

expressed by ODFW by including the 

condition, above, in its consistency 

concurrence. DLCD also recommended 

that EPA and ODFW coordinate on 

issues that might involve adjustments in 

Site management to avoid unanticipated 

adverse effects on important habitat and 

renewable marine resources. The final 

SMMP in this final designation provides 

the assurance and adaptive management 

measures requested. 

(4) ESA 

EPA initiated informal consultation in 

the spring of 2008 with NMFS and the 

U.S. Fish and Wildlife Service pursuant 

to section 7(a)(2) of the ESA on EPA’s 

action to designate the Rogue River 

ODMDS. EPA prepared a Biological 

Assessment to assess the potential 

effects of the Site designation on aquatic 

and wildlife species. EPA found that its 

action would not be likely to adversely 

affect (NLAA) aquatic or wildlife 

species listed as endangered or 

threatened pursuant to the Endangered 

Species Act, as amended (ESA), 16 

U.S.C. 1531 to 1544, or the critical 

habitat of such species. EPA found that 

site designation does not have a direct 

impact on any of the identified ESA 

species but also found that indirect 

impacts associated with reasonably 

foreseeable future disposal activities 

had to be considered. 

The US Fish and Wildlife Service 

(USFWS) concurred with EPA’s finding 

that EPA’s action to designate the final 

Rogue River ODMDS would not likely 

adversely affect listed species or critical 

habitat. Consultation with the USFWS 

for this final action was completed on 

July 29, 2008. 

The National Marine Fisheries Service 

(NMFS) did not concur on EPA’s NLAA 

finding and subsequently prepared a 

Biological Opinion (BO), issued March 

19, 2009. NMFS concluded that EPA’s 

site designation is not likely to 

jeopardize the continued existence of 

Southern Oregon/Northern California 

Coasts (SONCC) coho salmon or 

southern Distinct Population Segment 

(DPS) green sturgeon and is not likely to 

destroy or adversely modify SONCC 

coho salmon designated critical habitat 

or proposed southern DPS green 

sturgeon habitat. However, NMFS found 

that the indirect effects of the Site 

designation related to the exposure fish 

could experience from the disposal of 

dredged material could have 

consequences for listed fish. Based on 

NMFS’ estimate of ensuing indirect 

effects of the Site designation, NMFS 

estimated that injury and death of as 

many as 476 yearling SONCC coho 

salmon and a smaller number of small 

sub-adult southern DPS green sturgeon 

could occur. For Steller sea lions, blue 

whales, fin whales, humpback whales, 

and Southern Resident Killer whales, 

NMFS concurred in the BO with EPA’s 

determination of ‘‘may affect, not likely 

to adversely affect.’’ For four species of 

sea turtles, sperm whales, and sei 

whales, assessed by EPA in its 

determination of NLAA, NMFS found 

no effect because NMFS did not 

anticipate the species would be present 

in the action area. 

NMFS acknowledged in the BO that 

EPA’s action, the Site designation, does 

not authorize and will not itself result 

in disposal of dredged material. NMFS 

stated that it does not anticipate any 

take will be caused by the Site 

designation and adoption of the SMMP. 


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17412 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 

Consequently, NMFS did not include an 

incidental take statement in the BO. 

Rather, NMFS stated that any further 

analysis of the effects of disposal of 

dredged material at the disposal site and 

issuance of an incidental take statement 

with reasonable and prudent measures 

and non-discretionary terms and 

conditions to minimize take would be 

prepared when a disposal permit is 

requested by the action agency. NMFS 

did include one discretionary 

conservation recommendation in the BO 

seeking a study of fish interactions with 

disposed material. Such 

recommendations are purely advisory in 

nature. While EPA appreciates that such 

a study might be beneficial to the 

scientific knowledge base, EPA believes 

that such a study would be most helpful 

if carried out by NMFS, the expert 

Federal agency on fish behavior. 

(5) NHPA 

EPA initiated consultation with the 

State of Oregon’s Historic Preservation 

Officer (SHPO) to address the National 

Historic Preservation Act, as amended 

(NHPA), 16 U.S.C. 470 to 470a–2. The 

NHPA 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. EPA 

determined that no historic properties 

were affected, or would be affected, by 

the final designation of the Site. EPA 

did not find any historic properties 

within the geographic area of the final 

Site. This determination was based on 

an extensive review of the National 

Register of Historic Districts in Oregon, 

the Oregon National Register list and an 

assessment of cultural resources near 

the final Site. Side scan sonar of the 

final Site did not reveal the presence of 

any shipwrecks or other cultural or 

historic properties. The SHPO 

responded to EPA’s determination on 

September 11, 2008, without objection 

and clarified on October 13, 2008 that 

the Site designation did not require 

further archeological investigation to 

proceed. 

f. Action 

EPA designates the Rogue River 

ODMDS as an EPA-approved dredged 

material ocean disposal Site in this 

action. The monitoring and management 

requirements that will apply to this site 

are described in the final SMMP. EPA 

received no comments on the proposed 

rule other than one letter, dated 

November 12, 2008, from the 

Department of the Interior (DOI) stating 

that DOI had no comments. It should be 

emphasized that an ocean disposal site 

designation does not constitute or imply 

Corps or EPA approval of open water 

disposal of dredged material from any 

specific project. Before disposal of 

dredged material at the site may 

commence by any person, EPA and the 

Corps must evaluate the proposal 

according to the ocean dumping 

regulatory criteria (40 CFR part 227) and 

authorize disposal. EPA independently 

evaluates proposed dumping in 

accordance with those criteria pursuant 

to 40 CFR part 225. EPA has the right 

to disapprove of the actual disposal of 

dredged material if EPA determines that 

environmental requirements under the 

MPRSA have not been met. 

3. Statutory and Executive Order 

Reviews 

This final rule designating the Rogue 

River ODMDS pursuant to Section 102 

of the MPRSA complies with applicable 

executive orders and statutory 

provisions as follows: 

(1) Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735), the Agency must determine 

whether the regulatory action is 

‘‘significant,’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Executive 

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 

entitlements, grants, user fees, 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. EPA determined that this final 

rule is not a ‘‘significant regulatory 

action’’ under the terms of Executive 

Order 12866 and is therefore not subject 

to OMB review. 

(2) Paperwork Reduction Act 

This final action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

final rule does not establish or modify 

any information or recordkeeping 

requirements for the regulated 

community. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing, and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in Title 

40 of the CFR are listed in 40 CFR 

Part 9. 

(3) 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: (1) A small business defined 

by the Small Business Administration’s 

size regulations at 13 CFR 121.201; (2) 

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 (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. EPA determined 

that this final action will not have a 

significant economic impact on small 

entities because the final rule only has 

the effect of regulating the location of a 

site to be used for the disposal of 

dredged material in ocean waters. After 

considering the economic impacts of 

this rule, I certify that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. 

(4) Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 


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Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 17413 

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 government 

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. 

(5) Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255), requires 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that 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.’’ This rule 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 rule. 

(6) Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This final rule does not have tribal 

implications, as specified in Executive 

Order 13175 because the designation of 

this dredged material disposal Site 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 rule. Although Executive Order 

13175 does not apply to this final rule, 

EPA consulted with tribal officials in 

the development of this rule, 

particularly as it relates to potential 

impacts to historic or cultural resources. 

(7) Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 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 EO 

has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. The final 

action concerns the designation of an 

ocean disposal Site for dredged material 

and provides a designated location to 

use for ocean disposal of dredged 

material pursuant to section 102 (c) of 

the MPRSA. 

(8) Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This 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. 

(9) 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 

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 EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. The final action 

includes environmental monitoring and 

measurement as described in EPA’s 

final SMMP. EPA will not require the 

use of specific, prescribed analytic 

methods for monitoring and managing 

the final Site once designated. The 

Agency will 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 

final SMMP. 

(10) Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and Low 

Income Populations 

Executive Order (EO) 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. EPA 

determined that this final 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. EPA 

assessed the overall protectiveness of 

designating the final disposal Site 

against the criteria established pursuant 

to the MPRSA to ensure that any 

adverse impact on the environment will 

be mitigated to the greatest extent 

practicable. 

(11) Congressional Review Act 

The Congressional Review Act (CRA), 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective thirty days from the 

date of publication in the Federal 

Register. 

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. 


rwilkins on PROD1PC63 with RULES
17414 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Rules and Regulations 

Dated: April 3, 2009. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

■ For the reasons set out in the 

preamble, chapter I of title 40 of the 

Code of Federal Regulations is amended 

as set forth below: 

PART 228—[AMENDED] 

■ 1. The authority citation for part 228 

continues to read as follows: 

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

1418 

■ 2. Section 228.15 is amended by 

adding paragraph (n)(6) to read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(n) * * * 

(6) Rogue River, OR—Dredged 

Material Site 

(i) Location: 42° 24′15.40′′ N, 124° 

26′52.39′′ W; 42° 24′03.40′′ N, 124° 

26′39.39′′ W; 42° 23′39.40′′ N, 124° 

27′17.40′′ W; 42° 23′51.40′′ N, 124° 

27′30.40′′ W (NAD 83) 

(ii) Size: Approximately 1.1 

kilometers long and 0.4 kilometers wide 

(iii) Depth: Ranges from 

approximately 15 to 27 meters 

(iv) Primary Use: Dredged material 

(v) Period of Use: Continuing Use 

(vi) Restrictions: (A) Disposal shall be 

limited to dredged material determined 

to be suitable for ocean disposal 

according to 40 CFR 227.13, from the 

Rogue River navigation channel and 

adjacent areas; 

(B) Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); 

(C) Monitoring, as specified in the 

SMMP, is required. 

* * * * * 

[FR Doc. E9–8660 Filed 4–14–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–R06–RCRA–2008–0456; SW–FRL– 

8787–9] 

Hazardous Waste Management 

System; Identification and Listing of 

Hazardous Waste; Final Exclusion 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is granting a petition 

submitted by BAE Systems, Inc. (BAE) 

to exclude (or delist) the waste filter 

cake from its waste water treatment 

plant generated by BAE Sealy, Texas 

from the lists of hazardous wastes. This 

final rule responds to the petition 

submitted by BAE to delist F019 waste 

filter cake generated from the facility’s 

waste water treatment plant. After 

careful analysis and use of the Delisting 

Risk Assessment Software (DRAS), EPA 

has concluded the petitioned waste is 

not hazardous waste. This exclusion 

applies to 1,200 cubic yards per year of 

the F019 waste filter cake. Accordingly, 

this final rule excludes the petitioned 

waste from the requirements of 

hazardous waste regulations under the 

Resource Conservation and Recovery 

Act (RCRA) when it is disposed in a 

Subtitle D Landfill. 

DATES: Effective Date: April 15, 2009. 

ADDRESSES: The public docket for this 

final rule is located at the 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202, and is available for 

viewing in EPA Freedom of Information 

Act review room on the 7th floor from 

8 a.m. to 4 p.m., Monday through 

Friday, excluding Federal holidays. Call 

(214) 665–6444 for appointments. The 

reference number for this docket is 

EPA–R06–RCRA–2008–0456. The 

public may copy material from any 

regulatory docket at no cost for the first 

100 pages and at a cost of $0.15 per page 

for additional copies. 

FOR FURTHER INFORMATION CONTACT: Ben 

Banipal, Section Chief of the Corrective 

Action and Waste Minimization 

Section, Multimedia Planning and 

Permitting Division (6PD–C), 

Environmental Protection Agency 

Region 6, 1445 Ross Avenue, Dallas, 

Texas 75202. For technical information 

concerning this notice, contact Wendy 

Jacques, Environmental Protection 

Agency Region 6, 1445 Ross Avenue, 

(6PD–F), Dallas, Texas 75202, at (214) 

665–7395, or jacques.wendy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

The information in this section is 

organized as follows: 

I. Overview Information 

A. What action is EPA finalizing? 

B. Why is EPA approving this action? 

C. What are the limits of this exclusion? 

D. How will BAE manage the waste if it is 

delisted? 

E. When is the final delisting exclusion 

effective? 

F. How does this final rule affect states? 

II. Background 

A. What is a delisting? 

B. What regulations allow facilities to 

delist a waste? 

C. What information must the generator 

supply? 

III. EPA’s Evaluation of the Waste 

Information and Data 

A. What waste did BAE petition EPA to 

delist? 

B. How much waste did BAE propose to 

delist? 

C. How did BAE sample and analyze the 

waste data in this petition? 

IV. Public Comments Received on the 

Proposed Exclusion 

A. Who submitted comments on the 

proposed rule? 

V. Statutory and Executive Order Reviews 

I. Overview Information 

A. What action is EPA finalizing? 

After evaluating the petition, EPA 

proposed, on September 23, 2008, to 

exclude the waste filter cake from the 

lists of hazardous waste under 40 CFR 

261.31 and 261.32 (see 73 FR 54760). 

EPA is finalizing the decision to grant 

BAE’s delisting petition to have its 

waste filter cake managed and disposed 

as non-hazardous waste provided 

certain verification and monitoring 

conditions are met. 

B. Why is EPA approving this action? 

BAE’s petition requests a delisting 

from the F019 waste listing under 40 

CFR 260.20 and 260.22. BAE does not 

believe that the petitioned waste meets 

the criteria for which EPA listed it. BAE 

also believes no additional constituents 

or factors could cause the waste to be 

hazardous. EPA’s review of this petition 

included consideration of the original 

listing criteria and the additional factors 

required by the Hazardous and Solid 

Waste Amendments of 1984. See section 

3001(f) of RCRA, 42 U.S.C. 6921(f), and 

40 CFR 260.22 (d)(1)–(4) (hereinafter all 

sectional references are to 40 CFR 

unless otherwise indicated). In making 

the final delisting determination, EPA 

evaluated the petitioned waste against 

the listing criteria and factors cited in 

§ 261.11(a)(2) and (a)(3). Based on this 

review, EPA agrees with the petitioner 

that the waste is non-hazardous with 

respect to the original listing criteria. If 

EPA had found, based on this review, 

that the waste remained hazardous 

based on the factors for which the waste 

as originally listed, EPA would have 

proposed to deny the petition. EPA 

evaluated the waste with respect to 

other factors or criteria to assess 

whether there is a reasonable basis to 

believe that such additional factors 

could cause the waste to be hazardous. 

EPA considered whether the waste is 

acutely toxic, the concentration of the 

constituents in the waste, their tendency 

to migrate and to bioaccumulate, their 

persistence in the environment once 

released from the waste, plausible and 

specific types of management of the 

petitioned waste, the quantities of waste 


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