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 Environmental Protection Agency 40 CFR Part 228
[FRL-7973-8]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Final rule.
 SUMMARY: EPA today designates a new Ocean Dredged Material Disposal Site (ODMDS) in the Atlantic Ocean offshore Port Royal, South Carolina, as an EPA-approved ocean dumping site for the disposal of suitable dredged material. This action is necessary to provide an acceptable ocean disposal site for consideration as an option for dredged material disposal projects in the greater Port Royal, South Carolina, vicinity. This site designation is for an indefinite period of time, but the site is subject to continuing monitoring to insure that unacceptable adverse environmental impacts do not occur.
 DATES: This rule is effective on October 24, 2005.
 ADDRESSES: The file supporting this designation is available for public inspection at the following location: EPA Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303.
 FOR FURTHER INFORMATION CONTACT: Gary W. Collins, (404) 562-9395.


SUPPLEMENTARY INFORMATION: A. Background Section 102(c) of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 
                    *et seq.*, gives the Administrator of EPA the authority to designate sites where ocean disposal may be permitted. On October 1, 1986, the Administrator delegated the authority to designate ocean disposal sites to the Regional Administrator of the Region in which the sites are located. This designation is being made pursuant to that authority. The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR Chapter I, Subchapter H, § 228.4) state that ocean dumping sites will be designated by promulgation in this part 228. This site designation is being published as final rulemaking in accordance with § 228.4(e) of the Ocean Dumping Regulations, which permits the designation of ocean disposal sites for dredged material. B. Regulated Entities Entities potentially affected by this action are persons, organizations, or government bodies seeking to dispose of dredged material into ocean waters offshore Port Royal, South Carolina, under the MPRSA and its implementing regulations. This final rule is expected to be primarily of relevance to parties seeking permits from the U.S. Army Corps of Engineers (COE) to transport dredged material for the purpose of disposal into ocean waters and to the COE itself for its own dredged material disposal projects. Potentially regulated categories and entities that may seek to use the proposed dredged material disposal site may include: Category
Examples of potentially regulated entitiesFederal Government
U.S. Army Corps of Engineers Civil Works Projects, U.S. Marine Corps, 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 entities likely to be affected by this action. To determine whether your organization is affected by this action, you should carefully consider whether your organization is subject to the requirement to obtain an MPRSA permit in accordance with Section 103 of the MPRSA and the applicable regulations at 40 CFR Parts 220 and 225, and whether you wish to use the site subject to today's action. EPA notes that nothing in this final rule alters the jurisdiction or authority of EPA or the types of entities regulated under the MPRSA. Questions regarding the applicability of this final rule to a particular entity should be directed to the contact person listed in the preceding 
                    **FOR FURTHER INFORMATION CONTACT**
                     section. C. EIS Development Section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, as amended, 42 U.S.C. 4321 
                    *et seq.*, requires that Federal agencies prepare an Environmental Impact Statement (EIS) on proposals for legislation and other major federal actions significantly affecting the quality of the human environment. The object of NEPA is to build into the agency decision making process careful consideration of all environmental aspects of proposed actions. While NEPA does not apply to EPA activities of this type, EPA has voluntarily committed to prepare NEPA documents in connection with ocean disposal site designations. (See 63 FR 58045 [October 29, 1998], “Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA) Documents.”) EPA, in cooperation with the Charleston District COE, has prepared a Final EIS (FEIS) entitled “Final Environmental Impact Statement for the Port Royal Ocean Dredged Material Disposal Site Designation.” On June 25, 2004, the Notice of Availability of the FEIS for public review and comment was published in the 
                    **Federal Register**
                     (69 FR 35597 [June 25, 2004]). Anyone desiring a copy of the EIS may obtain one from the address given above. The public comment period on the FEIS closed on July 26, 2004. EPA received one comment letter on the FEIS from the South Carolina 
                    ( print page 55771)
                    Department of Health and Environmental Control. This letter states the Department's findings that the proposed ODMDS would be consistent with the State's Coastal Zone Management Program. Pursuant to an Office of Water policy memorandum dated October 23, 1989, EPA has evaluated the proposed site designation for consistency with the State of South Carolina's (the State) approved coastal management program. EPA has determined that the designation of the proposed site is consistent to the maximum extent practicable with the State coastal management program, and submitted this determination to the State for review in accordance with EPA policy. As stated above, the State agrees with this determination. The action discussed in the FEIS is the permanent designation for continuing use of an ODMDS near Port Royal, South Carolina. The purpose of this action is to provide an environmentally acceptable option for the continued ocean disposal of dredged material. The need for the permanent designation of a Port Royal ODMDS is based on a demonstrated COE need for ocean disposal of maintenance dredged material from the Federal navigation projects in the greater Port Royal Sound area. However, every disposal activity by the COE is evaluated on a case-by-case basis to determine the need for ocean disposal for that particular case. The need for ocean disposal for other projects, and the suitability of the material for ocean disposal, will be determined on a case-by-case basis as part of the COE's process of issuing permits for ocean disposal for private/federal actions and a public review process for its own actions. For the Port Royal ODMDS, the COE and EPA would evaluate all federal dredged material disposal projects pursuant to the EPA criteria given in the Ocean Dumping Regulations (40 CFR 220-229) and the COE regulations (33 CFR 209.120 and 335-338). The COE issues MPRSA permits to private applicants for the transport of dredged material intended for ocean disposal after compliance with regulations has been determined. EPA has the right to disapprove any ocean disposal project if, in its judgment, the MPRSA environmental criteria [Section 102(a)] or conditions of designation [Section 102(c)] are not met. The FEIS discusses the need for this site designation and examines ocean and non-ocean disposal site alternatives to the proposed action. Specific alternatives considered were the two interim ocean sites, sites off the continental shelf, land disposal sites, and sites that might be used for shore protection. D. Site Designation On February 24, 2005, EPA proposed designation of an ODMDS for continuing disposal of dredged material from the Port Royal Sound area. The period on this proposal closed on April 11, 2005. One e-mail letter of comment was received opposing not only the designation of this site, but all ocean disposal in principle. In response to this letter, EPA reiterates its support of beneficial uses of dredged material, when appropriate, and that this action is in accordance with MPRSA and the EPA Ocean Dumping Regulations promulgated under MPRSA. In addition, any project which proposes to dispose of dredged material within this site must evaluate the material to determine its suitability for ocean disposal. Only dredged material which has been shown to meet the ocean dumping criteria would be permitted to be placed in this site. The site is located approximately 7 nautical miles offshore Bay Point Island, South Carolina. The proposed ODMDS occupies an area of about 1.0 square nautical miles (nmi2). Water depths within the area average 36 feet (ft.). The coordinates of the New Port Royal site proposed for final designation are as follows: *Latitude*
*Longitude*32°05.00′ N
80°36.47′ W32°05.00′ N
80°35.30′ W32°04.00′ N
80°35.30′ W32°04.00′ N
80°36.47′ W
 E. Regulatory Requirements Pursuant to the Ocean Dumping Regulations, 40 CFR 228.5, five general criteria are used in the selection and approval for continuing use of ocean disposal sites. Sites are selected so as to minimize interference with other marine activities, to prevent any temporary perturbations associated with the disposal from causing impacts outside the disposal site, and to permit effective monitoring to detect any adverse impacts at an early stage. Where feasible, locations off the Continental Shelf and other sites that have been historically used are to be chosen. In this case, locations off the Continental Shelf are not feasible and no environmental benefit would be obtained by selecting such a site. Historical use of this site has not resulted in substantial adverse effects to living resources of the ocean or to other uses of the marine environment. If, at any time, disposal operations at a site cause unacceptable adverse impacts, further use of the site can be restricted or terminated by EPA. The site conforms to the five general criteria. In addition to these general criteria in § 228.5, §228.6 lists the 11 specific criteria used in evaluating a disposal site to assure that the general criteria are met. Application of these 11 criteria constitutes an environmental assessment of the impact of disposal at the site. The characteristics of the site are reviewed below in terms of these 11 criteria (the EIS may be consulted for additional information). 1. Geographical Position, Depth of Water, Bottom Topography, and Distance From Coast (40 CFR 228.6(a)(1)) The boundary of the site is given above. The northern boundary of the site is located about 7 nmi offshore of Bay Point Island, South Carolina. The site is approximatelty 1.0 nmi2
                     in area. The bottom topography is relatively flat and featureless, with water depths averaging 36 ft. 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)) Many of the area's species spend their adult lives in the offshore region, but are estuary-dependent because their juvenile stages use a low salinity estuarine nursery region. Specific migration routes are not known to occur within the site. The site is not known to include any major breeding or spawning area. Due to the motility of finfish, it is unlikely that disposal activities will have any significant impact on any of the species found in the area. In a letter dated October 23, 2003, the Habitat Conservation Division of National Marine Fisheries Service concurred with our assessment that this designation would not have a substantial individual or cumulative adverse impact on essential fish habitat, or fishery resources. 3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 228.6(a)(3)) The site is located approximately 7 nmi from the coast. Considering the previous disposal activities of the existing ODMDS (designated by the COE under Section 103 authority), dredged material disposal at the site is not expected to have an effect on the recreational uses of these beaches. 
                    ( print page 55772) 4. Types and Quantities of Wastes Proposed To Be Disposed of, and Proposed Methods of Release, Including Methods of Packing the Waste, If Any (40 CFR 228(a)(4)) The types of materials to be disposed of within this site are dredged materials as described in type and quantity by Section 2 of the FEIS. Between the years 1992 and 2003, approximately 200,000 cubic yards (annual average) have been ocean disposed within this area, typically once every two years. To date, the material from the Federal navigation project has been excluded from testing. Future disposal, which would be by hopper dredge or dump scow, should not change significantly by either volume or frequency. All disposals shall be in accordance with the approved Site Management and Monitoring Plan (SMMP) developed for this site (FEIS, Appendix B). 5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)) Due to the relative proximity of the site to shore and its depth, surveillance will not be difficult. The SMMP for the Port Royal ODMDS has been developed and was included as an appendix in the FEIS. This SMMP establishes a sequence of monitoring surveys to be undertaken to determine any impacts resulting from disposal activities. The SMMP may be reviewed and revised by EPA. A copy of the SMMP may be obtained at the address given above. 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)) A detailed current study, along with fate modelling of dredged material, was not deemed necessary because almost all of the material historically placed in the ocean has been sand. Therefore, a site-specific current study was not conducted within the site. Transport of disposed material should not present any adverse impacts. In summary, littoral drift is reported to be predominantly southwestward, while nearshore surface currents are derived primarily from wind stress, and are subject to extreme variability. 7. Existence and Effects of Current and Previous Discharges and Dumping in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7)) This site, as well as past interim sites nearby, has been used to dispose of the material from the Port Royal Sound area since 1956. Subsequent monitoring of these disposals and the long-term effects show that no adverse impacts have, or are likely to occur to the area. 8. Interference with Shipping, Fishing, Recreation, Mineral Extraction, Desalination, Fish and Shellfish Culture, Areas of Special Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8)) The location of the ODMDS was selected to avoid interference with commercial shipping. It is not anticipated that the site would interfere with any recreational activity. In addition, mineral extraction, fish and shellfish culture, and desalination activities do not occur in the area. 9. The Existing Water Quality and Ecology of the Site as Determined by Available Data or by Trend Assessment or Baseline Surveys (40 CFR 228.6(a)(9)) Appropriate water quality and ecological assessments have been performed at the site. The most abundant benthic invertebrates found within the site were the annelid Polygrodius sp., the bivalve Ervilia concentrica, the polychaete Prionospio cristata, annelids in the class Oligochaeta, and the bivalve Crassinella lunulata. These five taxa accounted for more than 40 percent of total number of individuals collected. More detailed information concerning the water quality and ecology at the ODMDS is presented in the FEIS. A copy of the FEIS may be obtained at any of the addresses given above. 10. Potentiality for the Development or Recruitment of Nuisance Species in the Disposal Site (40 CFR 228.6(a)(10)) The disposal of dredged materials should not attract or promote the development of nuisance species. No nuisance species have been reported to occur at previously utilized disposal sites in the vicinity. 11. Existence at or in Close Proximity to the Site of Any Significant Natural or Cultural Features of Historical Importance (40 CFR 228.6(a)(11)) There are no known such natural or cultural features of historical importance. As stated in the FEIS, this action has fully complied with both the Archaeological and Historic Preservation Act and the National Historic Preservation Act, as amended. F. Site Management Site management of the Port Royal ODMDS is the responsibility of EPA, in cooperation with the COE. The COE issues permits to private applicants for ocean disposal; however, EPA/Region 4 assumes overall responsibility for site management. The SMMP for the Port Royal ODMDS was developed as a part of the process of completing the EIS. This plan provides procedures for both site management and for the monitoring of effects of disposal activities. This SMMP is intended to be flexible and may be reviewed and revised by the EPA. G. Proposed Action The EIS concludes that the site may be appropriately designated for use. The site is compatible with the 11 specific and five general criteria used for site evaluation. The designation of the Port Royal site as an EPA-approved ODMDS is being published as final rulemaking. Overall management of this site is the responsibility of the Regional Administrator of EPA/Region 4. It should be emphasized that, if an ODMDS is designated, such a site designation does not constitute EPA's approval of actual disposal of material at sea. Before ocean disposal of dredged material at the site may commence, the COE must evaluate a permit application according to EPA's Ocean Dumping Criteria. EPA has the right to disapprove the actual disposal, if it determines that environmental concerns under MPRSA have not been met. The Port Royal ODMDS is not restricted to disposal use by federal projects; private applicants may also dispose suitable dredged material at the ODMDS once relevant regulations have been satisfied. This site is restricted, however, to suitable dredged material from the greater Port Royal, South Carolina, vicinity. H. Regulatory Assessments 1. Executive Order 12866 Under Executive Order 12866, EPA must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (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, 
                    ( print page 55773)
                    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. EPA has determined that this action 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 rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) because it would not require persons to obtain, maintain, retain, report, or publicly disclose information to or for a Federal agency. 3. Regulatory Flexibility Act Under the Regulatory Flexibility Act, EPA is required to perform a Regulatory Flexibility Analysis for all rules that may have a significant impact on a substantial number of small entities. EPA has determined that this action will not have a significant impact on small entities since the designation will only have the effect of providing an environmentally acceptable disposal option for dredged material on a continued basis. Consequently, by publication of this Rule, the Regional Administrator certifies that this action will not have a significant impact on a substantial number of small entities and therefore does not necessitate preparation of a Regulatory Flexibility Analysis. 4. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal Mandates that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative, if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this action contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Thus, the requirements of section 202 and section 205 of the UMRA do not apply to this proposed rule. Similarly, EPA has also determined that this action 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 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. As described elsewhere in this preamble, today's action would only have the effect of providing a continual use of an ocean disposal site pursuant to section 102(c) of MPRSA. Thus, Executive Order 13132 does not apply to this final rule. Although section 6 of Executive Order 13132 does not apply, EPA did consult with State officials in developing this action and no concerns were raised. 6. Executive Order 13175 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. As described elsewhere in this preamble, today's action would only have the effect of providing continual use of an ocean disposal site pursuant to section 102(c) of MPRSA. Thus, Executive Order 13175 does not apply to this final rule. 7. Executive Order 13045 Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (a) Is determined to be “economically significant” as defined under Executive Order 12866 and (b) 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 any reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As described elsewhere in this preamble, today's action would only have the effect of providing continual use of an ocean disposal site pursuant to section 102(c) of MPRSA. 8. Executive Order 13211 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. 
                    ( print page 55774) 9. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless doing 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. This final rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. 10. Executive Order 12898 Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin. No action from this final rule would have a disproportionately high and adverse human health and environmental effect on any particular segment of the population. In addition, this rule does not impose substantial direct compliance costs on those communities. 11. The 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 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). Accordingly, the requirements of Executive Order 12898 do not apply. List of Subjects in 40 CFR Part 228 Environmental protection
Water pollution control
 Dated: September 14, 2005. J.I. Palmer, Jr., Regional Administrator for Region 4.
 In consideration of the foregoing, Subchapter H of Chapter I of Title 40 is amended 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 (h)(23) to read as follows: § 228.15
  
 (h) * * * (23) Port Royal, SC; Ocean Dredged Material Disposal Site. (i) Location (NAD83): 32°05.00′ N., 80°36.47′ W.; 32°05.00′ N., 80°35.30′ W.; 32°04.00′ N., 80°35.30′ W.; 32°04.00′ N., 80°36.47′ W. (ii) Size: Approximately 1.0 square nautical miles. (iii) Depth: Averages 36 feet. (iv) Primary use: Dredged material. (v) Period of use: Continuing use. (vi) Restriction: Disposal shall be limited to suitable dredged material from the greater Port Royal, South Carolina, vicinity. Disposal shall comply with conditions set forth in the most recent approved Site Management and Monitoring Plan.


[FR Doc. 05-19063 9-22-05; 8:45 am] BILLING CODE 6560-50-P