Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 53729 

mailed comments, except that 

individuals may submit one paper copy. 

Comments are to be identified with the 

docket number found in brackets in the 

heading of this document. Received 

comments and the guidance may be 

seen in the Division of Dockets 

Management between 9 a.m. and 4 p.m., 

Monday through Friday. 

III. Electronic Access 

Persons with access to the Internet 

may obtain the guidance at http:// 

www.cfsan.fda.gov/guidance.html. 

Dated: September 1, 2005. 

Jeffrey Shuren, 

Assistant Commissioner for Policy. 

[FR Doc. 05–18039 Filed 9–7–05; 3:12 pm] 

BILLING CODE 4160–01–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[FRL–7967–7] 

Ocean Dumping; LA–3 Ocean Dredged 

Material Disposal Site Designation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) today designates LA–3 as 

a permanent ocean dredged material 

disposal site (ODMDS) located offshore 

of Newport Beach, California, managed 

at a maximum annual dredged material 

disposal quantity of 2,500,000 cubic 

yards (yd3) (1,911,000 cubic meters 

[m3]), and adjusts the management of 

the permanently-designated LA–2 

ODMDS at an increased maximum 

annual dredged material disposal 

quantity of 1,000,000 yd3 (765,000 m3) 

for the ocean disposal of clean dredged 

material from the Los Angeles County 

and Orange County regions. The 

availability of suitable ocean disposal 

sites to support ongoing maintenance 

and capital improvement projects is 

essential for the continued use and 

economic growth of the vital 

commercial and recreational areas in the 

region. Dredged material will not be 

allowed to be disposed of in the ocean 

unless the material meets strict 

environmental criteria established by 

the EPA and U.S. Army Corps of 

Engineers (USACE). 

The action would shift the center of 

the permanently-designated LA–3 site 

approximately 1.3 nautical miles (nmi) 

(2.4 kilometers [km]) to the southeast of 

the interim LA–3 site, and encompass a 

region that is already disturbed by 

dredged material. The permanent site 

also would be located on a flat, 

depositional plain, and away from the 

submarine canyons, that will be more 

amenable to surveillance and 

monitoring activities. The LA–2 site is 

a permanently designated ODMDS that 

has been historically managed at an 

average annual disposal quantity of 

200,000 yd3 (153,000 m3) for the 

disposal of material dredged primarily 

from the Los Angeles/Long Beach 

Harbor complex. The action will allow 

an increased volume of dredged 

material to be disposed annually at this 

site. The annual disposal quantity has 

occasionally exceeded the historical 

annual average due to capital projects 

from both the ports of Los Angeles and 

Long Beach. Thus, the new maximum 

volume designation would 

accommodate the projected average 

annual volume requirements as well as 

provide for substantial annual volume 

fluctuations. 

DATES: This final regulation is effective 

on October 12, 2005. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Allan Ota, Dredging and Sediment 

Management Team, U.S. Environmental 

Protection Agency, Region IX (WTR–8), 

75 Hawthorne Street, San Francisco, CA 

94105, telephone (415) 972–3476 or 

FAX: (415) 947–3537 or e-mail: 

ota.allan@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

supporting document for this site 

designation is the Final Environmental 

Impact Statement for the Site 

Designation of the LA–3 Ocean Dredged 

Material Disposal Site off Newport Bay, 

Orange County, California. This 

document is available for public 

inspection at the following locations: 

1. EPA Region IX, Library, 75 

Hawthorne Street, 13th Floor, San 

Francisco, California 94105. 

2. EPA Public Information Reference 

Unit, Room 2904, 401 M Street, SW., 

Washington, DC 20460. 

3. U.S. EPA, Southern California Field 

Office, 600 Wilshire Boulevard, Suite 

1460, Los Angeles, CA 90017. 

4. Lloyd Taber-Marina del Rey 

Library, 4533 Admiralty Way, Marina 

del Rey, CA 90292. 

5. Long Beach Public Library, 101 

Pacific Avenue, Long Beach, CA 90822. 

6. Los Angeles Public Library, Central 

Library, 630 West 5th Street, Los 

Angeles, CA 90071. 

7. Los Angeles Public Library, San 

Pedro Regional Branch Library, 931 

South Gaffey Street, San Pedro, CA 

90731. 

8. Newport Beach Public Library, 

Balboa Branch, 100 East Balboa 

Boulevard, Balboa, CA 92661. 

9. Newport Beach Public Library, 

Central Library, 1000 Avocado Avenue, 

Newport Beach, CA 92660. 

10. Newport Beach Public Library, 

Corona del Mar Branch, 420 Marigold 

Avenue, Corona del Mar, CA 92625. 

11. Newport Beach Public Library, 

Mariners Branch, 2005 Dover Drive, 

Newport Beach, CA 92660. 

12. U.S. EPA Web site: http:// 

www.epa.gov/region9. 

13. U.S. Army Corps of Engineers’

Web site: http:// 

www.spl.usace.army.mil. 

A. Potentially Affected Entities 

Entities potentially affected by this 

action are persons, organizations, or 

government bodies seeking to dispose of 

dredged material in ocean waters at the 

LA–3 and LA–2 ODMDS, under the 

Marine Protection Research and 

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

The Rule would be primarily of 

relevance to parties in the Los Angeles 

and Orange County areas seeking 

permits from the USACE to transport 

dredged material for the purpose of 

disposal into ocean waters at the LA–3 

and LA–2 ODMDS, as well as the 

USACE itself (when proposing to 

dispose of dredged material at the LA–

3 and LA–2 ODMDS). Potentially 

affected categories and entities seeking 

to use the LA–3 and LA–2 ODMDS and 

thus subject to this Rule include: 

Category Examples of potentially affected entities 

Industry and General Public ............................... Ports. 

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. 

Federal Government ........................................... U.S. Army Corps of Engineers Civil Works and O & M projects. 

53730 Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 

Category Examples of potentially affected entities 

Other Federal agencies, including the Department of Defense. 

This table lists the types of entities 

that EPA is now aware potentially could 

be affected. EPA notes, however, that 

nothing in this Rule alters in any way, 

the jurisdiction of EPA, or the types of 

entities regulated under the Marine 

Protection Research and Sanctuaries 

Act. To determine if you or your 

organization may be potentially affected 

by this action, you should carefully 

consider whether you expect to propose 

ocean disposal of dredged material, in 

accordance with the Purpose and Scope 

provisions of 40 CFR 220.1, and if you 

wish to use the LA–3 and/or LA–2 

ODMDS. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the 

persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. Background 

Ocean disposal of dredged materials 

is regulated under Title I of the Marine 

Protection, Research and Sanctuaries 

Act (MPRSA; 33 U.S.C. 1401 et seq.). 

The EPA and the USACE share 

responsibility for the management of 

ocean disposal of dredged material. 

Under section 102 of MPRSA, EPA has 

the responsibility for designating an 

acceptable location for the ODMDS. 

With concurrence from EPA, the USACE 

issues permits under MPRSA Section 

103 for ocean disposal of dredged 

material deemed suitable according to 

EPA criteria in MPRSA Section 102 and 

EPA regulations in Title 40 of the Code 

of Federal Regulations part 227 (40 CFR 

part 227). 

It is EPA’s policy to publish an EIS for 

all ODMDS designations (63 FR 58045, 

October 1998). A site designation EIS is 

a formal evaluation of alternative sites 

which examines the potential 

environmental impacts associated with 

disposal of dredged material at various 

locations. The EIS must first 

demonstrate the need for the ODMDS 

designation action (40 CFR 6.203(a) and 

40 CFR 1502.13) by describing available 

or potential aquatic and non-aquatic 

(i.e., land-based) alternatives and the 

consequences of not designating a site—

the No Action Alternative. Once the 

need for an ocean disposal site is 

established, potential sites are screened 

for feasibility through the Zone of Siting 

Feasibility (ZSF) process. Remaining 

alternative sites are evaluated using 

EPA’s ocean disposal criteria at 40 CFR 

part 228 and compared in the EIS. Of 

the sites which satisfy these criteria, the 

site which best complies with them is 

selected as the preferred alternative for 

formal designation through rulemaking 

published in the Federal Register (FR). 

Formal designation of an ODMDS in 

the Federal Register does not constitute 

approval of dredged material for ocean 

disposal. Designation of an ODMDS 

provides an ocean disposal alternative 

for consideration in the review of each 

proposed dredging project. Ocean 

disposal is only allowed when EPA and 

USACE determine that the proposed 

activity is environmentally acceptable 

according to the criteria at 40 CFR part 

227. Decisions to allow ocean disposal 

are made on a case-by-case basis 

through the MPRSA Section 103 

permitting process or its equivalent 

process for USACE’s Civil Works 

projects. Material proposed for disposal 

at a designated ODMDS must conform 

to EPA’s permitting criteria for 

acceptable quality (40 CFR parts 225 

and 227), as determined from physical, 

chemical, and bioassay/ 

bioaccumulation testing (EPA and 

USACE 1991). Only clean non-toxic 

dredged material is acceptable for ocean 

disposal. 

The interim LA–3 disposal site is 

located on the continental slope of 

Newport Submarine Canyon at a depth 

of about 1,475 feet (ft) (450 meters [m]), 

approximately 4.3 nmi (8 km) southwest 

of the entrance of Newport Harbor. This 

region is characterized by a relatively 

smooth continental slope 

(approximately two-degree slope) 

incised by a complicated pattern of 

meandering broad submarine canyons 

that can be up to 98 ft (30 m) deep and 

656–2,625 ft (200–800 m) wide. The 

circular interim site boundary is 

centered at 33°31′42′′ N and 117°54′48′′ 

W, with a 3,000 ft (915 m) radius. 

The interim LA–3 site has been used 

for disposing sediment dredged from 

harbors and flood channels within the 

County of Orange since 1976. Prior to 

1992, LA–3 was permitted by the 

USACE as a designated ocean disposal 

site for specific projects only. In 1992, 

the EPA approved LA–3 as an interim 

disposal site; this interim status expired 

January 1, 1997 (Water Resources 

Development Act [WRDA] 1992). The 

expiration date was extended to January 

1, 2000, through the 1996 WRDA (1996). 

In 1999, this interim status was 

extended for another three years and 

expired December 31, 2002. The action 

designates LA–3 as a permanent 

ODMDS for disposal of dredged 

materials generated from ongoing 

dredging activities, such as dredging to 

preserve the wetland habitat within the 

Upper Newport Bay or to maintain 

navigation channels at Newport and 

Dana Point Harbors. 

The action also shifts the center of the 

LA–3 site approximately 1.3 nmi (2.4 

km) to the southeast of the interim LA–

3 site. The circular boundary of the 

permanently designated LA–3 site 

would be centered at 33°31′00′′ N and 

117°53′30′′ W and would have a 3,000 

ft (915 m) radius. The depth of the 

center of the site would be 

approximately 1,600 ft (490 m). At this 

location the site boundary would be 

farther away from the submarine 

canyons that run through the interim 

site, thus simplifying surveillance and 

monitoring activities. 

The LA–2 ODMDS was designated as 

a permanent disposal site on February 

15, 1991. The LA–2 site is located on 

the outer continental shelf, margin, and 

upper southern wall of the San Pedro 

Sea Valley at depths from 

approximately 360–1,115 ft (110 to 340 

m), about 5.9 nmi (11 km) southsouthwest of the entrance to Los 

Angeles Harbor. The relatively flat 

continental shelf occurs in water depths 

to about 410 ft (125 m) with a regional 

slope of 0.8 degree. Then the slope 

becomes steep at about 7 degrees 

seaward to the shelf break. The southern 

wall of the San Pedro Sea Valley drops 

away with slopes steeper than 9 degrees. 

The site boundary is centered at 

33°37′6′′ N and 118°17′24′′ W with a 

radius of 3,000 ft (915 m). 

The LA–2 ODMDS does not have an 

annual disposal volume limit. However, 

the site designation EIS evaluated 

potential impacts based on a historical 

annual average of 200,000 yd3 (153,000 

m3). Since 1991, the annual disposal 

quantity occasionally has exceeded the 

pre-designation historical annual 

average because of capital projects from 

both the ports of Los Angeles and Long 

Beach. 

The need for ongoing ocean disposal 

capacity is based on historical dredging 

volumes from the local port districts, 

marinas and harbors, and federal 

navigational channels, as well as on 

estimates of future average annual 

dredging. An overall average of 

approximately 390,000 yd3 (298,000 m3) 

per year of dredged material requiring 

ocean disposal is expected to be 

Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 53731 

generated in the area. The purpose of 

the action is to ensure that adequate, 

environmentally-acceptable ocean 

disposal site capacity, in conjunction 

with other management options 

including upland disposal and 

beneficial reuse, is available for suitable 

dredged material generated in the 

greater Los Angeles County-Orange 

County area. 

EPA and USACE encourage the use of 

dredged material for beach 

replenishment in areas degraded by 

erosion. The grain size distribution of 

dredged material must be compatible 

with the receiving beach, and biological 

and water quality impacts must be 

considered prior to permitting of beach 

disposal. EPA and USACE evaluate the 

selection of appropriate disposal 

methods on a case-by-case basis for each 

permit. Additionally, opportunities 

arise periodically to use dredged 

material for marine landfilling projects, 

also referred to as the creation of 

‘‘fastlands.’’ When the need arises, the 

use of dredged material for the creation 

of fastlands is considered a viable 

alternative to ocean disposal. Other 

potential beneficial uses for dredged 

material include construction fill, use as 

cap material in aquatic remediation 

projects, wetland creation, wetland 

restoration, landfill daily cover, and 

recycling into commercial products 

such as construction aggregate, ceramic 

tiles, or other building materials. Each 

of these disposal management options is 

evaluated when permits are issued for 

individual dredging projects. 

A Zone of Siting Feasibility (ZSF) 

analysis estimates that after 

consideration of upland disposal and 

other beneficial uses, an average of 

approximately 390,000 yd3 (298,000 m3) 

per year of dredged material will require 

ocean disposal. This material would be 

proposed for ocean disposal by project 

proponents because it is not of an 

appropriate physical quality (e.g., it is 

predominantly fine-grained material) for 

reuse or because a reuse opportunity 

cannot be found that coincides with the 

timing of the dredging projects. 

The LA–2 ODMDS is approximately 

5.9 nmi (11 km) offshore from the 

entrance to the Port of Los Angeles and 

approximately 8.4 nmi (15.5 km) from 

the entrance to the Port of Long Beach. 

The majority of suitable dredged 

material from USACE and port dredging 

projects in the Los Angeles County area 

that could not be beneficially reused has 

traditionally been disposed of at this 

site. When EPA originally designated 

LA–2 as a permanent disposal site in 

1991, it evaluated the past history of 

disposal at the site up to that time and 

determined that significant adverse 

environmental impacts were unlikely to 

occur if similar levels of disposal 

continued there in the future. 

Most dredging projects from the 

Orange County area have not used the 

LA–2 site because of the extra costs and 

increased environmental impacts (such 

as increased air emissions) associated 

with transporting dredged material the 

longer distance to this site. Instead, 

projects traditionally have used the LA–

3 interim site, located approximately 4.3 

nmi (8 km) offshore from Newport Bay. 

The LA–3 interim disposal site was 

originally scheduled to close down on 

January 1, 1997, but the interim 

designation was extended by Congress 

until January 1, 2000 to allow a major 

Newport Bay dredging project to be 

completed (the approximately 1,000,000 

yd3 [765,000 m3] project to restore depth 

to sediment basins located in Upper 

Newport Bay). LA–3 was the only 

interim site in the nation specifically 

extended in this manner. Most recently, 

via the WRDA of 1999, Congress 

extended the status of LA–3 as an 

interim ODMDS for another three years 

(until December 31, 2002) to allow time 

for site designation studies and 

completion of the site designation EIS. 

The action provides for adequate, 

environmentally-acceptable ocean 

disposal site capacity for suitable 

dredged material generated in the 

greater Los Angeles County-Orange 

County area by permanently designating 

the LA–3 ODMDS. 

C. Disposal Volume Limit 

The action is final designation of the 

LA–3 ODMDS managed at a maximum 

annual dredged material disposal 

quantity of 2,500,000 yd3 (1,911,000 m3) 

and the management of LA–2 at an 

increased maximum annual dredged 

material disposal quantity of 1,000,000 

yd3 (765,000 m3) for the ocean disposal 

of dredged material from the Los 

Angeles and Orange County region. The 

need for ongoing ocean disposal 

capacity is based on historical dredging 

volumes from the local port districts, 

marinas and harbors, and federal 

navigational channels, as well as 

estimates of future average annual 

dredging. 

D. Site Management and Monitoring 

Plan 

Verification that significant impacts 

do not occur outside of the disposal site 

boundaries will be demonstrated 

through implementation of the Site 

Management and Monitoring Plan 

(SMMP) developed as part of the action. 

The main purpose of the SMMP is to 

provide a structured framework for 

resource agencies to ensure that dredged 

material disposal activities will not 

unreasonably degrade or endanger 

human health, welfare, the marine 

environment, or economic potentialities 

(section 103(a) of the MPRSA). Three 

main objectives for management of both 

the LA–2 and LA–3 ODMDSs are: (1) 

Protection of the marine environment; 

(2) beneficial use of dredged material 

whenever practical; and (3) 

documentation of disposal activities at 

the ODMDS. 

The EPA and USACE Los Angeles 

District personnel will achieve these 

objectives by jointly administering the 

following activities: (1) Regulation and 

administration of ocean disposal 

permits; (2) development and 

maintenance of a site monitoring 

program; (3) evaluation of permit 

compliance and monitoring results; and 

(4) maintenance of dredged material 

testing and site monitoring records to 

insure compliance with annual disposal 

volume targets and to facilitate future 

revisions to the SMMP. 

The SMMP includes periodic physical 

monitoring to confirm that the material 

that is deposited is landing where it is 

supposed to land, as well as chemical 

monitoring to confirm that the sediment 

chemistry conforms to the pre-disposal 

testing requirements. Other activities 

implemented through the SMMP to 

achieve these objectives include: (1) 

Regulating quantities and types of 

material to be disposed of, and the time, 

rates, and methods of disposal; and (2) 

recommending changes for site use, 

disposal amounts, or designation for a 

limited time based on periodic 

evaluation of site monitoring results. 

E. Ocean Dumping Site Designation 

Criteria 

Five general criteria and 11 specific 

site selection criteria are used in the 

selection and approval of ocean disposal 

sites for continued use (40 CFR 228.5 

and 40 CFR 228.6(a)). 

General Selection Criteria 

1. The dumping of materials into the 

ocean will be permitted only at sites or 

in areas selected to minimize the 

interference of disposal activities with 

other activities in the marine 

environment, particularly avoiding 

areas of existing fisheries or 

shellfisheries, and regions of heavy 

commercial or recreational navigation. 

Dredged material disposal activities 

have occurred at the LA–2 and LA–3 

sites since the late 1970s. Historical 

disposal at the interim LA–3 site has not 

interfered with commercial or 

recreational navigation, commercial 

fishing, or sportfishing activities. 

Disposal at the LA–2 site, while located 

53732 Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 

within the U.S. Coast Guard Traffic 

Separation Scheme, has not interfered 

with these activities. The continued use 

of these sites would not change these 

conditions. 

2. Locations and boundaries of 

disposal sites will be so chosen that 

temporary perturbations in water 

quality or other environmental 

conditions during initial mixing caused 

by disposal operations anywhere within 

the site can be expected to be reduced 

to normal ambient seawater levels or to 

undetectable contaminant 

concentrations or effects before reaching 

any beach, shoreline, marine sanctuary, 

or known geographically limited fishery 

or shellfishery. 

The LA–2 and LA–3 sites are 

sufficiently removed from shore and 

limited fishery resources to allow water 

quality perturbations caused by 

dispersion of disposal material to be 

reduced to ambient conditions before 

reaching environmentally sensitive 

areas. 

3. If at any time during or after 

disposal site evaluation studies, it is 

determined that existing disposal sites 

presently approved on an interim basis 

for ocean dumping do not meet the 

criteria for site selection set forth in 

Sections 228.5 through 228.6, the use of 

such sites will be terminated as soon as 

suitable alternate disposal sites can be 

designated. 

Evaluation of the LA–2 and LA–3 

sites indicates that they presently do 

and would continue to comply with 

these criteria. Additionally, compliance 

will continue to be evaluated through 

implementation of the Site Monitoring 

and Management Plan (SMMP). 

4. The sizes of the ocean disposal sites 

will be limited in order to localize for 

identification and control any 

immediate adverse impacts and permit 

the implementation of effective 

monitoring and surveillance programs 

to prevent adverse long-range impacts. 

The size, configuration, and location of 

any disposal site will be determined as 

a part of the disposal site evaluation or 

designation study. 

The LA–2 and LA–3 disposal sites are 

circular areas with a 3,000 ft (915 m) 

radius. The size of the sites has been 

determined by computer modeling to 

limit environmental impacts to the 

surrounding area and facilitate 

surveillance and monitoring operations. 

The designation of the size, 

configuration, and location of sites was 

determined as part of the evaluation 

study. 

5. EPA will, wherever feasible, 

designate ocean dumping sites beyond 

the edge of the continental shelf and 

other such sites that have been 

historically used. 

The LA–3 site is located beyond the 

continental shelf, near a canyon on the 

continental slope, in an area that has 

been used historically for the disposal of 

dredged material. LA–3 is the only site 

in the vicinity that fully meets the above 

criteria. The LA–2 site, which has been 

permanently designated and has been 

used for the ocean disposal of dredged 

material since 1977, is located near the 

edge of the continental shelf at the 600 

ft (183 m) contour. 

Specific Selection Criteria 

1. Geographical position, depth of 

water, bottom topography, and distance 

from the coast. 

Centered at 33°31′00′′ N, 117°53′30′′ 

W, the LA–3 site bottom topography is 

gently sloping from approximately 1,500 

to 1,675 ft (460 to 510 m). Situated near 

the slope of a submarine canyon, the 

site center is approximately 4.5 nmi (8.5 

km) from the mouth of Newport Harbor. 

The LA–2 site is at the top edge of the 

continental slope in approximately 360 

ft to 1,115 ft (110 to 340 m) of water. 

Centered at 33°37′06′′ N and 118°17′24′′ 

W, the LA–2 site is located just south of 

the San Pedro Valley submarine canyon, 

approximately 5.9 nmi (11 km) from the 

entrance to Los Angeles Harbor. 

2. Location in relation to breeding, 

spawning, nursery, feeding, or passage 

areas of living resources in adult or 

juvenile phases. 

The LA–2 and LA–3 sites are located 

in areas that are utilized for feeding and 

breeding of resident species. The LA–3 

site is located in the gray whale 

migration route area, while the LA–2 

site is located near the migration route. 

The California gray whale population 

was severely reduced in the 1800s and 

1900s due to international whaling. 

However, protection from commercial 

whaling initiated in the 1940s has 

allowed the population to recover. 

There is no indication that disposal 

activities at LA–2 or LA–3 have 

adversely affected the gray whale. There 

are no known special breeding or 

nursery areas in the vicinity of the two 

disposal sites. 

3. Location in relation to beaches and 

other amenity areas. 

The LA–3 site boundary is located 

over 3.5 nmi (6.5 km) offshore of the 

nearest coast in the Newport Beach and 

Harbor area. The LA–2 site boundary is 

located over 4.6 nmi (8.5 km) offshore 

from the nearest coast in the Palos 

Verdes area. Other beach areas are more 

distant. No adverse impacts from 

dredged material disposal operations are 

expected on these amenity areas. 

4. Types and quantities of wastes 

proposed to be disposed of, and 

proposed methods of release, including 

methods of packaging the waste, if any. 

Dredged material to be disposed of 

will be predominantly clays and silts 

primarily originating from the Los 

Angeles/Long Beach Harbor area and 

from Newport Bay and Harbor. Average 

annual disposal volumes at LA–3 range 

from 0 to approximately 337,000 yd3 (0 

to 258,000 m3). Average annual disposal 

volumes at LA–2 range from 68,000 yd3

to approximately 405,000 yd3 (52,000 to 

310,000 m3). 

Dredged material is expected to be 

released from split hull barges. No 

dumping of toxic materials or industrial 

or municipal waste would be allowed. 

Dredged material proposed for ocean 

disposal is subject to strict testing 

requirements established by the EPA 

and USACE, and only clean (non-toxic) 

dredged materials are allowed to be 

disposed at the LA–3 and LA–2 sites. 

5. Feasibility of surveillance and 

monitoring. 

The EPA (and USACE for federal 

projects in consultation with EPA) is 

responsible for site and compliance 

monitoring. USCG is responsible for 

vessel traffic-related monitoring. 

Monitoring the disposal sites is feasible 

but somewhat complicated by 

topography. At LA–3, this complication 

is reduced by relocation of the 

permanent LA–3 site away from 

submarine canyons. 

6. Dispersal, horizontal transport, and 

vertical mixing characteristics of the 

area, including prevailing current 

direction and velocity, if any. 

Currents and vertical mixing will 

disperse unconsolidated fine grained 

dredged sediments in the upper water 

column in the vicinity of ODMDS 

boundaries. Prevailing currents are 

primarily parallel to shore and flow 

along constant depth contours. Situated 

near the slope of a submarine canyon, 

the LA–3 area would be expected to 

receive sedimentation from erosion and 

nearshore transport into the canyon. At 

LA–2, some sediment transport offshore 

occurs due to slumping. Overall, the 

seabed at both sites are considered to be 

non-dispersive, and sediments at both 

sites are expected to settle and remain 

offshore, with no impact expected on 

shore areas. 

7. Existence and effects of current and 

previous discharges and dumping in the 

area (including cumulative effects). 

Localized physical impacts have 

occurred to sediments and benthic biota 

within the disposal sites due to past 

disposal operations. However, these 

activities have not resulted in long-term 

significant adverse impacts on the local 

Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 53733 

environment. No interactions with other 

discharges are anticipated due to the 

distances from the discharge points. 

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. 

Continued use of the LA–2 and LA–

3 sites would result in minor 

interferences with commercial shipping 

and fishing vessels due to disposal barge 

traffic. Sites are not located within 

active oil or natural gas tracts. 

Continued disposal operations are not 

anticipated to adversely impact existing 

nearby oil and gas development 

facilities or tracts, or other 

socioeconomic resources. Overall, no 

significant interferences associated with 

this criterion are expected to result from 

continued use of the LA–2 and LA–3 

sites. 

9. Existing water quality and ecology 

of the site as determined by available 

data or by trend assessment or baseline 

surveys. 

Water quality at the two disposal 

areas is good, but temporary, localized 

physical impacts have occurred to 

sediments and benthic ecology due to 

past disposal operations. Additionally, 

dredged material deposited in the past 

at the two disposal areas was chemically 

screened prior to disposal, and no 

known dredged material was disposed 

of for which chemical concentrations 

exceeded the range of chemical 

concentrations approved for ocean 

disposal. 

10. Potentiality for the development 

or recruitment of nuisance species in 

the disposal site. 

The potential is low due to depth 

differences between the disposal sites 

and the likely sources of dredged 

material. 

11. Existence at or in close proximity 

to the site of any significant natural or 

cultural features of historical 

importance. 

No known shipwrecks or other 

cultural resources occur within 2.7 nmi 

(5 km) of either the LA–2 or LA–3 

disposal sites. 

F. Responses to Comments 

Comments to the Draft EIS 

The draft EIS was published in the 

Federal Register on January 21, 2005. A 

45-day public review and comment 

period extended from the publication 

date through March 7, 2005. Six 

comment letters from various 

individuals, organizations, and agencies 

were received during the public review 

and comment period. In addition to the 

six comment letters, two public 

meetings were held on Wednesday, 

February 9, 2005, to solicit comments 

from interested parties. The comments, 

and associated responses, are 

summarized topically below. 

Preferred Alternative 

Two commenters concurred with the 

preferred alternative selected in the EIS. 

Site Boundaries for the LA–3 ODMDS 

One commenter questioned the 

boundary of the LA–3 site relative to the 

expected deposition pattern for dredged 

materials on the seafloor. The 

boundaries of the disposal site were 

chosen based on historical usage and to 

ensure that the majority of dredged 

material falls within the site boundaries 

given the 1,000 ft (305 m) radius 

disposal target for the disposal barges. 

Instantaneous sediment accumulation 

rates in excess of 1 ft (30 cm) per 

disposal event were assumed to result in 

the loss of the existing infaunal 

community. However, for assessing 

impacts, the EIS conservatively assumed 

that the infaunal community would be 

lost if the deposition rate exceeded 1 ft 

(30 cm) over a one-year period (this is 

conservative because the infaunal 

community is expected to rapidly 

recover for instantaneous deposition 

rates of less than 30 cm [1 ft] per 

disposal event). For all modeled 

scenarios, the worst-case 1 ft (30 cm) 

annual deposition contour lies well 

within the 3,000 ft (915 m) radius site 

boundary. While a certain quantity of 

material is expected to settle outside of 

the site boundary, it is impractical and 

undesirable to extend the site boundary 

beyond this distance in an attempt to 

encompass all of the dredge material 

that will settle on the ocean bottom. 

Extending the site boundaries to 

encompass all of the material expected 

to settle on the ocean bottom would not 

alter the conclusion of significance (or 

lack thereof) concerning adverse 

impacts on the benthic community 

determined in the EIS. The 3,000 ft (915 

m) radius is considered appropriate for 

site management purposes. 

Estimates of Future Disposal Volumes 

Relative to Site Capacity 

Two commenters asked for 

clarification of projected disposal 

volumes at the LA–2 and LA–3 sites. 

For both management and 

environmental impact considerations, 

the dredged material volume capacities 

specified for LA–2 and LA–3 were based 

on conservative estimates of the worstcase maximum amount of dredged 

material requiring ocean disposal in any 

given year. These estimates account for 

all known and reasonably anticipated 

capital and maintenance dredging 

projects in the Los Angeles and Orange 

County regions. It is unlikely that all 

potential projects would occur 

simultaneously in any given year. 

Therefore, the environmental impact 

analysis considered both the potential 

worst-case conditions and a more 

reasonable annual average condition. 

For each potential dredging project, 

the Zone of Siting Feasibility (ZSF) 

Study evaluated whether disposal at the 

LA–2 or LA–3 ODMDSs would be 

economically feasible. For the purposes 

of establishing the maximum analyzed 

annual dredged material quantities that 

could be placed at LA–2 or LA–3, it was 

assumed that the Los Angeles County 

projects identified in the ZSF Study 

(USACE 2003a) would utilize LA–2, and 

that the Orange County projects would 

utilize LA–3. 

Accordingly, based on the projected 

dredging volumes from the ZSF study, 

as well as site management 

considerations, the LA–2 site would be 

designated for an annual maximum of 

1,000,000 yd3 (765,000 m3) and the LA–

3 site would be designated for an annual 

maximum of 2,500,000 yd3 (1,911,000 

m3). These maximum volume 

designations would accommodate the 

projected average annual volume 

requirements as well as provide for 

substantial annual volume fluctuations. 

Thus, the Final Rule will amend use of 

the existing LA–2 site for a higher 

maximum annual quantity to manage 

disposal of dredged material generated 

primarily from the Los Angeles County 

region, and it would permanently 

designate the LA–3 ODMDS with an 

annual quantity adequate to manage 

disposal of dredged material generated 

locally from projects to preserve the 

wetland habitat within the Upper 

Newport Bay and/or to maintain 

navigation channels at Newport and 

Dana Point Harbors. 

However, designation of the sites does 

not preclude material generated in 

Orange County from being disposed of 

at LA–2 or material generated in Los 

Angeles County from being disposed of 

at LA–3. The choice of which site to use 

for the disposal of dredged material for 

individual dredging projects will be 

based on both economic and 

environmental factors. Decisions to 

allow ocean disposal for individual 

dredging projects are made on a case-bycase basis through the Marine 

Protection, Research and Sanctuaries 

Act (MPRSA) Section 103 permitting 

process or its equivalent process for 

USACE’s Civil Works projects and are 

subject to subsequent environmental 

review and documentation. 

53734 Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 

Site Monitoring and Management Plan 

One commenter expressed support for 

the SMMP, but requested clarification 

on opportunities for public input to the 

SMMP. A SMMP has been developed 

that contains approaches for monitoring 

impacts to marine organisms, as well as 

verification of model predictions. 

Development of this SMMP was based 

on a review of other SMMPs prepared 

for similar ocean disposal sites. 

The site monitoring reports described 

in the SMMP will be public documents 

that will be made available either 

through posting on the EPA Web site or 

direct mailing upon request. EPA will 

accept public comments regarding those 

reports, although there will not be a 

formal comment period. Additionally, 

the public will get an opportunity to 

comment on any SMMP implementation 

manual that is prepared by EPA 

subsequent to this action. No revisions 

to the SMMP as written are necessary to 

allow for this level of public input. 

Relocation of the LA–3 ODMDS 

One commenter indicated that 

relocating LA–3 was inconsistent with 

EPA site selection criteria. Although the 

permanent LA–3 site lies outside of the 

boundaries of the interim LA–3 site, the 

permanent site has been disturbed by 

historical dredged material disposal 

events. During reviews performed by the 

U.S. Geological Survey in 1998, a 

substantial amount of dredged material 

was noted outside of the interim site 

boundaries, particularly to the north, 

northeast, and southeast of the site. This 

was primarily attributed to disposal 

short of the targeted disposal area and 

errors in disposal generally resulting 

from inaccurate navigation. 

Locating the permanent site boundary 

at the new location (away from the 

interim site) would redirect future 

dredged material disposal to an area 

historically used for disposal (and thus 

already undisturbed). Additionally, due 

to the nature of the local topography, 

the permanent site would be more 

amenable to monitoring via precision 

bathymetry. Further, as described in the 

SMMP, enhanced vessel tracking and 

monitoring will ensure that future 

disposal activities occur accurately 

within the designated target area of the 

permanent site. 

Extension of the Interim Designation of 

LA–3 

One commenter recommended 

extending the interim designation of 

LA–3. Congressional authorization for 

the interim site designation expired 

December 31, 2002. Requests for another 

extension would have to be made to 

Congress. In any event, the action 

obviates the need for an extension. 

Thus, an extension of LA–3’s interim 

site designation is not necessary. 

Impacts to Areas of Special Biological 

Significance 

One commenter noted potentials for 

impacts to Crystal Cove State Park and 

Area of Special Biological Significance 

(ASBS) if dredged materials placed at 

LA–3 were transported shoreward by 

currents. Dispersion and transport of 

dredged material disposed at LA–3 was 

modeled using measured current data 

collected in the disposal site and 

nearshore area. Results from the 

sediment fate model indicated that the 

dredged material disposed at LA–3 

would settle within and immediately 

adjacent to the disposal site and no 

appreciable sediment transport toward 

the nearshore areas is anticipated, 

particularly given the depth of the LA–

3 site. Water quality impacts during 

dredged material disposal operations at 

the LA–3 site will be temporary and 

localized and are not expected to extend 

to the shallower, nearshore area. 

Further, the location of the permanent 

LA–3 site relocates the site away from 

the Newport submarine canyon. Thus, 

any potential influences of currents 

within the canyon would be reduced at 

the permanent site. 

Comments to the Final EIS and 

Proposed Rule 

The Final EIS and Proposed Rule 

were published in the Federal Register 

on July 18, 2005. A 30-day public 

review and comment period extended 

from the publication date through 

August 18, 2005. No formal comments 

were received from the public or 

agencies. 

G. Regulatory Requirements 

1. Consistency With the Coastal Zone 

Management Act 

Consistent with the Coastal Zone 

Management Act, EPA prepared a 

Coastal Zone Consistency Determination 

(CCD) document based on information 

presented in the site designation EIS. 

The CCD evaluated whether the 

action—permanent designation of LA–3 

and management of LA–2 at a higher 

annual disposal volume—would be 

consistent with the provisions of the 

Coastal Zone Management Act. The CCD 

was formally presented to the California 

Coastal Commission (Commission) at 

their public hearing June 9, 2005. The 

Commission staff report recommended 

that the Commission concur with EPA’s 

CCD, which the Commission did by a 

unanimous vote. The Final Rule is 

consistent with the Coastal Zone 

Management Act. 

2. Endangered Species Act Consultation 

During development of the site 

designation EIS, EPA consulted with the 

National Marine Fisheries Service 

(NMFS) and the U.S. Fish and Wildlife 

Service (FWS) pursuant to the 

provisions of the Endangered Species 

Act (ESA), regarding the potential for 

designation and use of the ocean 

disposal sites to jeopardize the 

continued existence of any federally 

listed species. This consultation process 

is fully documented in the site 

designation EIS. NMFS and FWS 

concluded that use of the disposal sites 

for disposal of dredged material meeting 

the criteria for ocean disposal would not 

jeopardize the continued existence of 

any federally listed species. 

H. Administrative Review 

1. Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’, and therefore subject to 

OMB review and other requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

that is likely to lead to a rule that may: 

(a) 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; 

(b) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(c) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(d) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

This Final Rule should have minimal 

impact on State, local or tribal 

governments or communities. 

Consequently, EPA has determined that 

this Final Rule is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866. 

2. Paperwork Reduction Act 

The Paperwork Reduction Act, 44 

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

minimize the reporting and 

recordkeeping burden on the regulated 

community, as well as to minimize the 

cost of Federal information collection 

and dissemination. In general, the Act 

Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 53735 

requires that information requests and 

recordkeeping requirements affecting 

ten or more non-Federal respondents be 

approved by OMB. Since the Final Rule 

would not establish or modify any 

information or recordkeeping 

requirements, but only clarifies existing 

requirements, it is not subject to the 

provisions of the Paperwork Reduction 

Act. 

3. Regulatory Flexibility Act, as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

The Regulatory Flexibility Act (RFA) 

provides that whenever an agency 

promulgates a final rule under 5 U.S.C. 

553, the agency must prepare a 

regulatory flexibility analysis (RFA) 

unless the head of the agency certifies 

that the final rule will not have a 

significant economic impact on a 

substantial number of small entities (5 

U.S.C. 604 and 605). The site 

designation and management actions 

would only have the effect of setting 

maximum annual disposal volume and 

providing a continuing disposal option 

for dredged material. Consequently, 

EPA’s action will not impose any 

additional economic burden on small 

entities. For this reason, the Regional 

Administrator certifies, pursuant to 

section 605(b) of the RFA, that the Final 

Rule will not have a significant 

economic impact on a substantial 

number of small entities. 

4. Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act (UMRA) of 1995 (Pub. L. 

104–4) establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local and 

tribal governments, in the aggregate, or 

to the private sector, of $100 million or 

more in any year. 

This Final Rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local or tribal governments or the 

private sector. The Final Rule would 

only provide a continuing disposal 

option for dredged material. 

Consequently, it imposes no new 

enforceable duty on any State, local or 

tribal governments or the private sector. 

Similarly, EPA has also determined that 

this Rule contains no regulatory 

requirements that might significantly or 

uniquely affect small government 

entities. Thus, the requirements of 

section 203 of the UMRA do not apply 

to this Final Rule. 

5. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), 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’’ is 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 the 

various levels of government.’’

This Final Rule does not have 

federalism implications. It will 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 the various 

levels of government, as specified in 

Executive Order 13132. The Final Rule 

would only have the effect of setting 

maximum annual disposal volumes and 

providing a continuing disposal option 

for dredged material. Thus, Executive 

Order 13132 does not apply to this Final 

Rule. 

6. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This Final Rule does not 

have tribal implications, as specified in 

Executive Order 13175. The Final Rule 

would only have the effect of setting 

maximum annual disposal volumes and 

providing a continuing disposal option 

for dredged material. Thus, Executive 

Order 13175 does not apply to this Final 

Rule. 

7. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This Executive Order (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by EPA. 

This Final Rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because 

EPA does not have reason to believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

8. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use Compliance With 

Administrative Procedure Act 

This Final Rule is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not a significant 

regulatory action under Executive Order 

12866. The Final Rule would only have 

the effect of setting maximum annual 

disposal volumes and providing a 

continuing disposal option for dredged 

material. Thus, EPA concluded that this 

Final Rule is not likely to have any 

adverse energy effects. 

9. National Technology Transfer 

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 note) 

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 standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

Final Rule does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

10. Congressional Review Act 

The Congressional Review Act, 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 

53736 Federal Register / Vol. 70, No. 175 / Monday, September 12, 2005 / Rules and Regulations 

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 Final 

Rule will be effective October 12, 2005. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Dated: August 31, 2005. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

■ In consideration of the foregoing, EPA 

is amending part 228, chapter I of 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 (l)(11) to read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(l) * * * 

(11) Newport Beach, CA, (LA–3) 

Ocean Dredged Material Disposal Site—

Region IX. 

(i) Location: Center coordinates of the 

circle-shaped site are: 33°31′00′′ North 

Latitude by 117°53′30′′ West Longitude 

(North American Datum from 1983), 

with a radius of 3,000 feet (915 meters). 

(ii) Size: 0.77 square nautical miles. 

(iii) Depth: 1,500 to 1,675 feet (460 to 

510 meters). 

(iv) Use Restricted to Disposal of: 

Dredged materials. 

(v) Period of Use: Continuing use. 

(vi) Restrictions: Disposal shall be 

limited to dredged materials that 

comply with EPA’s Ocean Dumping 

Regulations. 

* * * * * 

[FR Doc. 05–18024 Filed 9–9–05; 8:45 am] 

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