Ocean Dumping; Amendment of Site Designation

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-5637-4]

Ocean Dumping; Amendment of Site Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) proposes to amend

the site designation for the San Francisco Deep Ocean Disposal Site

(SF-DODS), an existing deep ocean dredged material disposal site

located off San Francisco, California, by extending the time period

during which the disposal site would be managed under an interim

disposal volume limit. A range of options are presented to solicit

public comment on the appropriate length for an interim extension, and

for an appropriate interim disposal volume limit. This amendment is

necessary in order to allow the SF-DODS to remain open for disposal of

dredged material from authorized projects, while documentation

addressing comprehensive long term dredged material management for the

region is being completed. The amendment is therefore intended to

provide the region with continued access to an environmentally

appropriate dredged material disposal alternative, without precluding

any options for the comprehensive long-term management planning process

now underway.

The SF-DODS would remain designated for the disposal of suitable

dredged material removed from the San Francisco Bay region and other

nearby harbors or dredging sites. However, EPA would not set a

permanent annual disposal volume limit at this time, as originally

envisioned in the August 11, 1994 site designation Final Rule. Instead,

EPA is proposing to extend the existing interim management of the site

for some period and volume limit yet to be determined. A decision on a

permanent disposal volume limit would be made by the end of this

extension period, based on the comprehensive dredged material

management planning process or based on a separate alternatives-based

EPA evaluation of the need for ocean disposal. All other aspects of the

August 11, 1994 SF-DODS designation Final Rule, including the

provisions of the Site Management and Monitoring Plan (SMMP) would

remain in full effect.

DATES: Comments must be received on or before November 18, 1996.

ADDRESSES: Send questions or comments to: Mr. Allan Ota, Ocean Disposal

Coordinator, U.S. Environmental Protection Agency, (EPA) (W-3-3), 75

Hawthorne Street, San Francisco, California 94105, telephone (415) 744-

1980.

FOR FURTHER INFORMATION: Contact Mr. Allan Ota, Ocean Disposal

Coordinator, U.S. Environmental Protection Agency, Region 9 (W-3-3), 75

Hawthorne Street, San Francisco, California 94105, telephone (415) 744-

1980.

SUPPLEMENTARY INFORMATION: The primary supporting documents for this

designation amendment are the Final Environmental Impact Statement

(EIS) for Designation of a Deep Water Ocean Dredged Material Disposal

Site off San

[[Page 54113]]

Francisco, California (August 1993), the Long-Term Management Strategy

(LTMS) for the Placement of Dredged Material in the San Francisco Bay

Region, Draft Policy Environmental Impact Statement/Programmatic Impact

Report (April, 1996), and the SF-DODS designation Final Rule [40 CFR

228(b)(70), 59 FR 41243 (August 11, 1994), subsequently republished as

40 CFR 228.15(l)(3), 59 FR 61128 (November 29, 1994)], all of which are

available for public inspection at the following locations:

A. Water Docket, MC-4101, Environmental Protection Agency, 401 M

Street, SW, Washington, D.C. 20460.

B. EPA Region 9, Library, 75 Hawthorne Street, 13th Floor, San

Francisco, California.

C. ABAG/MTC Library, 101 8th Street, Oakland, California.

D. Alameda County Library, 3121 Diablo Avenue, Hayward, California.

E. Bancroft Library, University of California, Berkeley, California.

F. Berkeley Public Library, 2090 Kittredge Street, Berkeley,

California.

G. Daly City Public Library, 40 Wembley Drive, Daly City, California.

H. Environmental Information Center, San Jose State University, 125

South 7th Street, San Jose, California.

I. Half Moon Bay Library, 620 Correas Street, Half Moon Bay,

California.

J. Marin County Library, Civic Center, 3501 Civic Center Drive, San

Rafael, California.

K. North Bay Cooperative Library, 725 Third Street, Santa Rosa,

California.

L. Oakland Public Library, 125 14th Street, Oakland, California.

M. Richmond Public Library, 325 Civic Center Plaza, Richmond,

California.

N. San Francisco Public Library, Civic Center, Larkin & McAllister, San

Francisco, California.

O. San Francisco State University Library, 1630 Holloway Avenue, San

Francisco, California.

P. San Mateo County Library, 25 Tower Road, San Mateo, California.

Q. Santa Clara County Free Library, 1095 N. Seventh Street, San Jose,

California.

R. Santa Cruz Public Library, 224 Church Street, Santa Cruz,

California.

S. Sausalito Public Library, 420 Litho Street, Sausalito, California.

T. Stanford University Library, Stanford, California.

A. Regulated Entities

Entities potentially regulated by this action are persons or

entities seeking permits to dump dredged material into ocean waters at

the SF-DODS, under the Marine Protection, Research, and Sanctuaries

Act, 33 U.S.C. 1401 et seq. The rule would primarily be of relevance to

parties in the San Francisco area seeking permits from the U.S. Army

Corps of Engineers for the ocean dumping of dredged material at the SF-

DODS as well as the U.S. Army Corps of Engineers itself. Potentially

regulated categories and entities seeking to use the SF-DODS include:

------------------------------------------------------------------------

Examples of potentially

Category regulated entities

------------------------------------------------------------------------

Industry............................... Ports seeking dredged material

ocean dumping permits for SF-

DODS use.

Marinas seeking dredged

material ocean dumping permits

for SF-DODS use.

Shipyards seeking dredged

material ocean dumping permits

for SF-DODS use.

Berth owners seeking dredged

material ocean dumping permits

for SF-DODS use.

State/local/tribal Governments......... Local governments owning ports

or berths seeking dredged

material ocean dumping permits

for SF-DODS use.

Federal Government..................... US Army Corps of Engineers for

its projects proposing to use

the SF-DODS.

Federal agencies seeking

dredged material ocean dumping

permits for SF-DODS use.

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by the

action. This table lists types of entities that EPA is now aware could

potentially be regulated by this action. Other types of entities not

listed in this table could also be regulated. To determine whether your

organization is potentially regulated by this action, you should

carefully consider whether your organization is subject to the

requirement to obtain an ocean dumping permit in accordance with the

Purpose and Scope provisions of Section 220.1 of Title 40 of the Code

of Federal Regulations, and you wish to use the SF-DODS. If you have

questions regarding the applicability of this action to a particular

entity, consult the person listed in the preceding FOR FURTHER

INFORMATION, CONTACT section.

B. Background

Section 102(c) of the Marine Protection, Research, and Sanctuaries

Act (MPRSA) of 1972, as amended, 33 U.S.C. Sections 1401 et seq., gives

the Administrator of EPA authority to designate sites where ocean

dumping may be permitted. On October 1, 1986 the Administrator

delegated authority to designate ocean dredged material disposal sites

(ODMDS) to the Regional Administrator of the EPA Region in which the

sites are located. This action, proposing to amend an August 11, 1994

SF-DODS designation Final Rule, is being made pursuant to that

authority.

The EPA Ocean Dumping Regulations (40 CFR 228.4) state that ocean

dumping sites will be designated by publication pursuant to 40 CFR Part

228. This proposed site designation amendment is being published as

proposed rulemaking in accordance with Section 228.4(e) of the Ocean

Dumping Regulations, which permits the designation of ocean disposal

sites for dredged material.

By publication of a Final Rule in the Federal Register on August

11, 1994 (59 Fed. Reg. 41243), EPA Region 9 designated SF-DODS as an

ocean dredged material disposal site. The center of the SF-DODS is

located approximately 49 nautical miles (91 kilometers) west of the

Golden Gate and occupies an area of approximately 6.5 square nautical

miles (22 square kilometers). Water depths within the area range

between approximately 8,200 to 9,840 feet (2,500 to 3,000 meters). The

center coordinates of the oval-shaped site are: 37 deg.39.0' North

latitude by 123 deg.29.0' West longitude (North American Datum from

1983), with length (north-south axis) and width (west-east axis)

dimensions of approximately 4 nautical miles (7.5 kilometers) and 2.5

nautical miles (4.5 kilometers), respectively.

In its August 11, 1994 Final Rule, EPA designated SF-DODS for

continued use for a period of 50 years, with an interim capacity of six

million cubic yards of dredged material per calendar year until

December 31, 1996. It was assumed that by that date, a comprehensive

evaluation of long term dredged material management needs for the

overall San Francisco Bay region would have been conducted, which would

have evaluated the potential for alternatives to ocean disposal, and

which could therefore serve as a basis for establishing a permanent

disposal volume limit for SF-DODS. (Alternatively, the August 11, 1994

site designation Final Rule provided for EPA to establish a permanent

disposal site volume based on a separate alternatives-based EPA

evaluation of the need for ocean disposal.)

Since the August 11, 1994 site designation Final Rule, significant

effort

[[Page 54114]]

has in fact gone toward development of a comprehensive dredged material

management approach for the region. In particular, the multi-agency

draft Policy Environmental Impact Statement/Programmatic Environmental

Impact Report entitled Long-Term Management Strategy (LTMS) for the

Placement of Dredged Material in the San Francisco Bay Region (LTMS

draft EIS/R) was published on April 17, 1996. The LTMS draft EIS/R

evaluates the overall dredged material management needs and disposal or

reuse potential for the San Francisco Bay area over the next 50 years,

including not only ocean disposal, but also in-Bay disposal (placement

at designated sites within the San Francisco estuary that are managed

under Section 404 of the Clean Water Act), and upland or wetland

disposal or reuse. The policy alternatives evaluated in the LTMS draft

EIS/R include varying levels of dredged material disposal or reuse in

each of these three placement environments. The potential environmental

and socioeconomic effects of each policy alternative is evaluated in

the LTMS draft EIS/R. Selection of one of the alternative policy

approaches set forth in the LTMS draft EIS/R could therefore serve as

an appropriate basis for designating a permanent disposal volume limit

for SF-DODS, as originally envisioned. However, the LTMS Final EIS/R

process is not yet complete. Public comments on the LTMS draft EIS/R

were accepted through July 19, 1996, and over 60 substantive comment

letters were received, many of which suggested that significant changes

should be made before finalizing the EIS/R.

The August 11, 1994 site designation Final Rule provides for EPA to

base the establishment of a permanent disposal site volume limit for

the SF-DODS on a separate alternatives-based evaluation of the need for

ocean disposal, conducted by EPA, in the event that the LTMS EIS/R

process was not completed by December 31, 1996. EPA believes that the

record represented by the information and evaluations presented in its

original site designation EIS and rulemaking, together with those

presented in the LTMS draft EIS/R and the public comments received on

the draft EIS/R, is adequate as a basis for designating a permanent

disposal volume limit for SF-DODS. However, in order to provide for a

maximum of public input to the overall policy approach that should be

selected for long-term dredged material management (including the role

of ocean disposal), EPA is proposing to extend site use under an

interim disposal volume limit, and not to make a permanent volume limit

determination at this time. Extending site use at this time under an

interim disposal volume limit would allow the LTMS EIS/R process to

continue, without precluding final selection of any of the LTMS EIS/R's

overall dredged material management alternatives.

Therefore, EPA is proposing to extend the period during which the

SF-DODS would be managed under an interim disposal volume limit. In

this proposed rule, options are presented to solicit public comment on

the appropriate length for an interim extension, and for an appropriate

interim disposal volume limit.

Other than establishing an interim disposal volume limit and

setting a new timeframe for designating a permanent disposal volume

limit, the provisions of the August 11, 1994 site designation Final

Rule would be unchanged by the amendments described in this proposed

Rule. In particular, the August 11, 1994 site designation Final Rule

stipulated that site use is subject to implementation of a specific

Site Monitoring and Management Plan (SMMP) for the SF-DODS, and that

the monitoring provisions of this SMMP would be fully implemented

during the first two years of site use independent of actual volumes of

dredged material disposed at the site. This proposed rule would

continue the requirement to fully implement monitoring during any

extended period of interim site management. Thereafter, consistent with

the August 11, 1994 site designation Final Rule, the EPA Region 9

Regional Administrator may establish a minimum annual disposal volume

(not to exceed 10 percent of the designated site capacity at any time)

below which this monitoring program need not be fully implemented.

The SMMP provisions in the Final Rule are closely related to EPA

Region 9's previous proposals on site monitoring and management. These

proposals have been put forth for public review and comment on at least

two occasions. First, EPA Region 9 outlined its proposals concerning

site monitoring and management in the Preamble accompanying the

Proposed Rule designating the SF-DODS. EPA Region 9 published the

Proposed Rule in the Federal Register on February 17, 1994 (59 FR

7952), and held open a public comment period on the Proposed Rule until

March 18, 1994. Second, EPA Region 9 completed a draft of a separate

SMMP document and made this document available for public review and

comment. EPA Region 9 published this SMMP document as an EPA Public

Notice on April 20, 1994 and accepted comments on this document until

June 6, 1994. The SMMP provisions in the August 11, 1994 Final Rule

were determined after considering the public comments received in

response to both the Proposed Rule Preamble and the SMMP document. None

of the requirements of the SMMP would be changed by this proposed rule.

C. Interim Disposal Volume Limit

A range of approaches to determining an appropriate interim

disposal volume limit for SF-DODS is being considered by EPA for this

proposed rule. These include: (1) revising the interim disposal limit

based on an updated estimate of overall dredging and potential ocean

disposal needs for the San Francisco area; (2) revising the interim

disposal limit based on one of the alternatives presented in the LTMS

draft EIS/R; (3) revising the interim disposal limit to accommodate

only those specific projects currently approved for ocean disposal

(plus an additional volume to accommodate a limited number of new

projects in the near term); and (4) leaving unchanged the existing

interim disposal limit of six million cubic yards per year. Each of

these options is discussed in the following paragraphs. (Options for

the duration of the interim site management period are discussed in

Section D, INTERIM SITE MANAGEMENT PERIOD, below.) Note that EPA's

determination, based on the site designation EIS and rulemaking, and

subsequent site monitoring results (see Section E--Compliance with

Ocean Site Designation Criteria) is that no significant adverse

environmental impacts are expected in association with the original

interim disposal volume limit of six million cubic yards per year. All

of the options discussed below for a continued interim disposal volume

limit reflect either a decrease, or no change, in potential disposal

activity at the SF-DODS. (No option considers an increase in the

disposal volume limit, because the August, 1993 final EIS did not

evaluate whether there would be potential adverse impacts at volumes

greater than six million cubic yards per year. That August, 1993 final

EIS would need to be supplemented with new analyses before greater

volumes could be considered.) Therefore, no significant adverse

environmental impacts are expected for any of these options.

EPA is specifically soliciting public comment on the following

range of options, which we believe covers the full spectrum of possible

actions. However, EPA will also consider

[[Page 54115]]

comments addressing modifications to these options. Comments should

address interim disposal volume limits both from the standpoint of

minimizing overall environmental impacts, and from the standpoint of

providing adequate disposal volume for projects that may need dredging

during the interim period. Note that additional public comment will be

solicited as part of EPA's designation of a permanent disposal volume

limit.

Volume Option 1: Interim disposal volume limit based on new

estimate of long-term dredging need. EPA's original designation of a

six million cubic yard annual disposal limit for the SF-DODS was based,

in part, on the estimate of long-term dredging needs for the San

Francisco Bay area contained in the site designation EIS (August,

1993). At that time, it was estimated that 400 million cubic yards of

dredged material would be generated in the area over 50 years, for a

long-term average of eight million cubic yards per year. It was assumed

that up to 80 percent of this estimated eight million cubic yard annual

average could be found to meet the ocean disposal criteria of 40 CFR

Part 228 as being physically, chemically, and biologically suitable for

ocean disposal at the SF-DODS. Modeling and other evaluations conducted

for the site designation EIS (August, 1993) were therefore based on the

site potentially accommodating a maximum of six million cubic yards per

year (about 80 percent of the estimated eight million cubic yards per

year total dredging).

Since EPA's August, 1993 site designation EIS, estimated long-term

dredging needs for the San Francisco Bay area have decreased

substantially. The LTMS draft EIS/R (April, 1996) documents the current

``high end'' estimate of long-term dredging needs for the San Francisco

Bay area as being approximately 300 million cubic yards over the next

50 years. This represents a 25 percent reduction from the earlier 400

million cubic yard long-term estimate. Much of this estimated decrease

is attributable to military base closures announced since EPA's August

1993 site designation EIS was being prepared. Based on the new LTMS

estimate of 300 million cubic yards over 50 years, the average overall

dredging need decreases from eight million to six million cubic yards

per year. Under the same assumption used in the site designation EIS

(August, 1993) that up to 80 percent of this dredged material may be

determined to be suitable for ocean disposal, a long-term annual

average of 4.8 million cubic yards of dredged material would now be

assumed to be potentially suitable for ocean disposal at the SF-DODS.

Revising the interim disposal volume limit for the SF-DODS to 4.8

million cubic yards of suitable dredged material per year is not

expected to have an impact on completion of existing, authorized

projects. The Port of Oakland -42-Foot Deepening Project and the Port

of Richmond -38-Foot Deepening Project, both of which are already

authorized, will each generate over two million cubic yards of dredged

material authorized for disposal at the SF-DODS. Therefore, even if

both these projects were to conduct the majority of their authorized

dredging within the same, single calendar year, a revised interim

disposal volume limit of 4.8 million cubic yards per year would

accommodate them both with little or no delay. In this event, however,

only limited additional volume would be available for other projects

during that year. (For example, ample capacity would be available for

additional projects the following year under a two-year interim site

management extension, but no additional capacity for other projects

would be available under a one year extension.) In addition, in

combination with existing capacity at aquatic disposal sites within the

San Francisco Bay and estuary (managed under the Clean Water Act),

reducing the interim disposal volume limit at the SF-DODS to 4.8

million cubic yards per year is not expected to cause an overall

shortage of available disposal capacity in the region during the near

term.

There are no indications that the disposal volume limit should be

reduced due to any direct environmental impacts. In addition, changing

the existing interim disposal volume limit before the LTMS EIS/R

process is complete could be viewed by some as prejudicial to the

outcome of that process. Comments supporting this option would be

particularly helpful if they address why a reduced interim disposal

volume limit would be appropriate, and why any outcome of the LTMS EIS/

R process would not be affected by such a reduction at this time.

Volume Option 2: Interim disposal volume limit based on

alternatives presented in the LTMS draft EIS/R. In addition to the No

Action alternative, the LTMS draft EIS/R (April, 1996) evaluated three

``policy alternatives'' for overall management of dredged material

estimated to be generated in the San Francisco Bay area over the next

50 years. Each of the alternatives retained for detailed evaluation

included either ``medium'' or ``low'' levels of ocean disposal.

``Medium'' ocean disposal was defined in the LTMS draft EIS/R to be 40

percent of the average annual volume of dredged material expected to be

found suitable for ocean disposal, or approximately two million cubic

yards per year. ``Low'' ocean disposal was defined as 20 percent of the

ocean suitable dredged material, or approximately one million cubic

yards per year.

Although alternative 50-year overall management approaches having

either ``medium'' or ``low'' ocean disposal volumes are being

considered as long-term LTMS goals, this proposal is intended to

address short term needs while that longer term process is completed.

At the present time, multi-user upland or wetland reuse sites capable

of managing these volumes of dredged material are not available. Until

additional upland or wetland reuse sites become available, sufficient

capacity must be retained at a combination of the SF-DODS and the

existing in-Bay disposal sites to manage the dredged material generated

by necessary projects.

Given that the Port of Oakland and Port of Richmond projects have

already been authorized, setting the interim disposal volume limit to

coincide directly with either the ``medium'' (two million cubic yards

per year) or ``low'' (one million cubic yards per year) long-term LTMS

goals would not allow consideration of additional projects for ocean

disposal during the interim period. With upland alternatives extremely

limited at present, this option could cause an overall shortage of

available disposal capacity in the region during the near term, and

could have the effect of forcing state and federal regulators to rely

almost exclusively on existing sites within the San Francisco Bay and

estuary for disposal of suitable dredged material from any new dredging

projects during the interim period. Furthermore, the Oakland and

Richmond projects could not be dredged simultaneously. The Oakland

project is already in the midst of dredging, but the Richmond project

had not yet begun dredging at the time this proposed rulemaking was

prepared. It is likely that construction of the Port of Richmond

project would be delayed for at least one year under this option. Such

a delay could jeopardize the federal funding for this project.

The factors discussed above would be re-evaluated when determining

an appropriate permanent disposal volume limit for the SF-DODS, once

the programmatic LTMS EIS/R process has been completed.

Comments supporting this option would be particularly helpful if

they include specific recommendations

[[Page 54116]]

regarding which LTMS draft EIS/R alternative an ocean disposal volume

limit should be based on, and should provide specific information

supporting such recommendations.

Volume Option 3: Interim disposal volume limit based on specific

projects currently approved for ocean disposal (plus an additional

volume to accommodate a limited number of new projects in the near

term). Under this option, EPA would establish an interim disposal

volume limit for the SF-DODS that is sufficient to allow for the

potential simultaneous construction of the already authorized Port of

Oakland and Port of Richmond deepening projects, plus an additional

volume to accommodate a limited number of new dredging projects. For

example, an interim disposal volume limit of from five million cubic

yards of suitable dredged material per year would provide for

construction of both the Oakland and Richmond projects in one year,

plus approximately an additional one million cubic yards from other

projects during that same year. (If some additional volume for other

projects were not included, an overall shortage of available disposal

capacity in the region could occur during the near term, and could have

the effect of forcing state and federal regulators to rely almost

exclusively on existing sites within the San Francisco Bay and estuary

for disposal of suitable dredged material from any new dredging

projects during the interim period.)

In contrast to Option 2, this option would not delay and possibly

put at risk the federal funding for either the Port of Oakland or Port

of Richmond deepening projects. Also, it should allow state and federal

regulators to continue to evaluate whether ocean disposal may be a less

damaging, practicable alternative to in-Bay disposal for some new

dredging projects in the near term (prior to completion of the LTMS

EIS/R process and implementation of a comprehensive, long-term

management plan for the San Francisco Bay area). As with the other

options discussed, no significant adverse environmental impacts would

be expected in association with disposal of five million cubic yards of

suitable dredged material per year at the SF-DODS. In addition, in

combination with existing capacity at aquatic disposal sites within the

San Francisco Bay and estuary (managed under the Clean Water Act),

reducing the interim disposal volume limit at the SF-DODS to five

million cubic yards per year would not be expected to cause an overall

shortage of available disposal capacity in the region during the near

term.

Although this option would allow only slightly more ocean disposal

than Option 1 (which would allow up to 4.8 million cubic yards per

year), this option represents a conceptual change in the basis under

which the SF-DODS has been managed during the first two years of

interim site management. Only currently authorized projects plus a

small additional volume for other potential projects would be

accommodated.

Comments supporting this option would be particularly helpful if

they include specific recommendations regarding volume, and should

provide specific supporting information.

Volume Option 4: Retain existing six million cubic yards per year

interim disposal volume limit. Modeling and other evaluations conducted

for both the site designation EIS (August, 1993) and the site

designation Final Rule (August 11, 1994), support EPA's determination

that no significant adverse environmental impacts are expected in

association with disposal of up to six million cubic yards of suitable

dredged material per year at the SF-DODS. Site monitoring studies

conducted to date, and summarized briefly in Section E, below, are

consistent with the EIS predictions and confirm that the site is

performing as predicted. Therefore, no significant adverse

environmental impacts would be expected if the existing interim

disposal volume limit (up to six million cubic yards of dredged

material per year) were to be retained during an extended period of

interim site management.

Similar to Option 1 and Option 3, this option would accommodate the

already authorized Port of Oakland and Port of Richmond dredging

projects without delay, and would have capacity for additional near

term projects for which ocean disposal may be found to be a practicable

alternative. In combination with existing capacity at aquatic disposal

sites within the San Francisco Bay and estuary (managed under the Clean

Water Act), an interim disposal volume limit at the SF-DODS of six

million cubic yards per year is not expected to cause an overall

shortage of available disposal capacity in the region during the near

term.

Retaining the existing disposal volume limit would require that the

August 11, 1994 site designation Final Rule be amended only by changing

the dates included therein, and thus would minimize any confusion among

regulated entities that might otherwise result from establishing a

different interim management volume for the SF-DODS. This option most

clearly leaves open all options for comprehensive long-term dredged

material management (including the role of ocean disposal); it would

not in any way prejudice consideration of a permanent disposal volume

limit based on the ongoing comprehensive management planning process.

D. Interim Site Management Period

The primary purpose in extending the interim disposal volume limit

for the SF-DODS is to allow for completion of the public process

associated with finalizing the LTMS EIS/R. The draft LTMS EIS/R was

published on April 19, 1996, and the public comment period closed on

July 19, 1996. Over 60 substantive comment letters were received on the

LTMS draft EIS/R. Several comment letters expressed the view that the

programmatic document was inadequate and that a revised draft EIS/R

should be prepared. Other comment letters recommended that a detailed

Management Plan, outlining the specific actions that state and federal

agencies would take to implement any of the alternatives in the draft

EIS/R, should be prepared prior to finalizing the programmatic EIS/R.

It is apparent that an LTMS final EIS/R and Record of Decision will

not be available in time to serve as the basis for establishing a

permanent disposal volume limit for the SF-DODS before the December 31,

1996 expiration of the interim period specified in the August 11, 1994

site designation Final Rule. Therefore, EPA is proposing to extend the

interim site management period for the SF-DODS. Five options are

presented below to solicit public comment on the appropriate length of

an extended interim site management period. (Options for the disposal

volume limit that would apply during the interim site management period

are discussed in Section C, DISPOSAL VOLUME LIMIT, above.)

EPA is specifically soliciting public comment on this range of

options; however, EPA will also consider comments addressing other

interim site management periods, including alternatives that involve no

extension at all. Such comments should address how an alternative can

reasonably provide for completion of the LTMS final EIS/R, or for

development of a separate EPA evaluation of the overall need for ocean

disposal (as provided in the August 11, 1994 site designation Final

Rule).

Extension Option 1: Two-year extension to interim site management.

It is expected that relatively substantial revisions to the LTMS draft

EIS/R will be required before the final EIS/R can be published and a

Record of Decision signed. A two-year interim site

[[Page 54117]]

management extension should allow reasonable time for completion of the

LTMS Final EIS/R process, including the approximate four month period

necessary to conduct the rulemaking process for a permanent SF-DODS

disposal volume limit. A two-year period would also be a sufficient

time to allow the approved Port of Oakland deepening project to be

completed, and to allow planning and contracting for the approved Port

of Richmond deepening project to proceed with reasonable

predictability. Ocean disposal would remain a feasible alternative to

consider for upcoming projects. At the same time, a permanent disposal

volume limit could be established before the end of the two-year

period, if the LTMS final EIS/R process is completed earlier, or if EPA

were to prepare a separate evaluation of the overall need for ocean

disposal (as provided in the August 11, 1994 site designation Final

Rule).

Extension Option 2: 18-Month extension to interim site management.

As with Extension Option 1, an 18-month extension should be a

sufficient time to allow completion of the LTMS final EIS/EIR. However,

an 18-month extension might not be sufficient to provide for the

subsequent rulemaking process to be completed and for a permanent

disposal volume limit to become effective. In addition, an 18-month

extension would make it more difficult for planning and contracting of

the already-authorized Port of Richmond Deepening Project, potentially

making it more likely that either the entire project would be dredged

within the shorter 18-month period, or that some of the project's

dredged material would have to be disposed at existing sites within the

San Francisco Bay and estuary (managed under the Clean Water Act).

Planning for other projects that would potentially be appropriate for

ocean disposal would also be made more difficult.

Comments supporting this option would be particularly helpfull if

they address why an 18-month period would be sufficient to allow for

the completion of both the LTMS final EIS/EIR and subsequent ocean

disposal rulemaking, without significantly affecting permitted and

potential future projects or increasing disposal within the San

Francisco Bay and estuary.

Extension Option 3: One-year extension to interim site management.

Extending the interim site management period for only one year probably

would not allow sufficient time for the finalization of the LTMS EIS/R,

given the substantial concerns raised in public comments on the draft

EIS/R. Following publication of the LTMS final EIS/R and Record of

Decision, approximately four months would be needed for rulemaking to

establish a permanent disposal volume limit for the remainder of the

SF-DODS' 50-year designation. In order for the entire process to be

completed within one year, a maximum of eight months would therefore be

available for preparation, publication, and public review of the LTMS

final EIS/R. It is unlikely that the necessary revisions can be made

within a few months, particularly if they are based on a process of

ongoing, open discussions with interested parties, as several

commenters on the LTMS draft EIS/R have requested. As noted above, the

primary reason for extending the interim site management period is to

allow the LTMS final EIS/R process to be completed. At this time EPA

does not believe that a one-year extension will reasonably allow this

to occur.

A one-year extension might only be adequate if EPA were to prepare

a separate evaluation of the overall need for ocean disposal (as

provided in the August 11, 1994 site designation Final Rule); rather

than moving forward with the LTMS EIS/R process at this time. This

would delay completion of the LTMS EIS/R by a commensurate period.

Comments supporting this option would be particularly helpful if they

address why a one-year extension would be adequate to complete the LTMS

EIS/R and rulemaking processes, or why a permanent disposal volume

limit should be established prior to completion of the LTMS EIS/R

process (based on a separate EPA evaluation of the need for ocean

disposal).

Extension Option 4: Six-month extension to interim site management.

Similar to Option 3 above, a six-month extension period would not

provide sufficient time for the completion of the LTMS final EIS/EIR. A

six-month extension might only be adequate if EPA were to prepare a

separate evaluation of the overall need for ocean disposal (as provided

in the August 11, 1994 site designation Final Rule), rather than moving

forward with the LTMS EIS/R process at this time. This would delay

completion of the LTMS EIS/R by a commensurate period. Comments

supporting this option would be particularly helpfull if they address

why a six-month extension would be adequate to complete the LTMS EIS/R

and rulemaking processes, or why a permanent disposal volume limit

should be established prior to completion of the LTMS EIS/R process

(based on a separate EPA evaluation of the need for ocean disposal).

Extension Option 5: Unspecified period of interim site management

(period to end following completion of the LTMS final EIS/R, or

concurrent with publication of a comprehensive management plan for the

San Francisco Bay region). An extension period could be tied

specifically to completion of the LTMS final EIS/R process, without

attempting to speculate about the timeframe needed. This option would

provide the greatest assurance that any LTMS EIS/R process would in

fact be completed before conducting rulemaking to establish a permanent

disposal site volume for the SF-DODS. However, it would not provide the

public with reasonable assurance that the LTMS final EIS/R process will

in fact move forward as expeditiously as possible. In particular,

interested parties might be concerned that resources adequate to

continue and complete the LTMS final EIS/R process may not be committed

by the agencies in a timely manner, if a specific timeframe for action

is not somehow integral to the process. Comments supporting this option

would be particularly helpful if they address why an indefinite

extension period would be superior to the options described above, and

whether and how the alternate provision (in the August 11, 1994 site

designation Final Rule) to base a permanent disposal volume limit on a

separate EPA evaluation of the need for ocean disposal should be

incorporated under an indefinite extension.

E. Ocean Dumping Site Designation Criteria

Five general criteria are used in the selection and approval of

ocean disposal sites for continued use (40 CFR Section 228.5). First,

sites must be selected to minimize interference with other activities,

particularly avoiding fishery areas or major navigation areas. Second,

sites must be situated such that temporary (during initial mixing)

water quality perturbations caused by disposal operations would be

reduced to normal ambient levels before reaching any beach, shoreline,

sanctuary, or geographically limited fishery area. Third, if site

designation studies show that any interim disposal site does not meet

the site selection criteria, use of such site shall be terminated as

soon as an alternate site can be designated. Fourth, disposal site size

must be limited in order to localize for identification and control any

immediate adverse impacts, and to facilitate effective monitoring for

long-range effects. Fifth, EPA must, wherever feasible, designate ocean

dumping sites beyond the edge of the continental shelf

[[Page 54118]]

and where historical disposal has occurred. As described in the site

designation EIS, SF-DODS was specifically selected as the alternative

location which best complied with these general criteria.

In addition to the five general criteria, 11 specific site

selection criteria are listed in 40 CFR 228.6(a) of the EPA Ocean

Dumping Regulations for evaluation of all candidate disposal sites. The

five general criteria and the 11 specific factors overlap to a great

degree. The SF-DODS, as discussed in the August, 1993 site designation

final EIS and subsequent rulemaking, was also found to best comply with

each of the 11 specific criteria.

Site monitoring activities conducted pursuant to the requirements

of the SF-DODS Site Management and Monitoring Plan have established

that it is feasible to monitor at the site using standardized methods,

and that to date the site is performing as expected. For example,

seafloor mapping of dredged material deposits (footprint) from disposal

operations indicates that deposition is occurring as predicted in the

EIS. The bulk of the sediments discharged from barges have deposited

within the site boundaries and have not been transported offsite

thereafter. Deposit thicknesses exceeding 17 centimeters have been

identified only at the center of the site, and no deposit thicknesses

exceeding the five centimeter threshold established in the August 11,

1994 site designation Final Rule have been detected at or outside of

the site boundaries. No apparent changes in the basic successional

stage of the native benthic communities attributable to dredged

material deposition have been observed outside the disposal site

boundary in site monitoring studies. Therefore, any significant

disturbances associated with dredged material disposal are limited to

within the disposal site boundaries, as predicted. In addition, water

column studies confirmed that plumes resulting from disposal operations

dissipate rapidly and suspended sediment concentrations of the plumes

decrease to ambient levels within the disposal site boundaries. Vessel

traffic associated with disposal operations has not interfered with

overall vessel traffic in the San Francisco Bay region, and

observations of seabirds and marine mammals in the vicinity of disposal

operations to date indicate that no apparent significant adverse

impacts have occurred to these resources as a result of disposal

operations. Finally, use of SF-DODS has reduced the total volume of

disposal at existing in-Bay sites (managed under Section 404 of the

Clean Water Act [40 CFR Section 230]). It has therefore already reduced

potential cumulative effects to sensitive aquatic resources of the San

Francisco Bay-Delta estuary.

Taken together, the evaluations presented in the site designation

final EIS and rulemaking, and the site monitoring results to date,

confirm that the SF-DODS is performing as predicted and that, in

operation, it continues to meet the general and specific site

designation criteria of 40 CFR 228.5 and 228.6.

EPA Region 9 has determined that the SF-DODS may appropriately be

designated for use over a period of 50 years, with an interim capacity

of up to six million cubic yards of dredged material per calendar year.

Site capacity shall be re-evaluated based on the results of

comprehensive regional dredged material management planning (including

consideration of in-Bay, ocean, and upland or wetland disposal or

reuse) underway at the time of this rulemaking (or, as provided in the

August 11, 1994 site designation Final Rule, independently by EPA if a

comprehensive management approach is not yet available).

Designation of the SF-DODS for up to six million cubic yards of

suitable dredged material per year complies with the general and

specific criteria used for site evaluation, as evaluated in the August

11, 1994 site designation Final Rule. The continued use of the site

under an interim disposal volume limit equal to or less than this

annual amount also complies with these criteria, as described in

Section E, above. Management of this site will continue to be the

responsibility of the Regional Administrator of EPA Region 9 in

cooperation with the Corps South Pacific Division Engineer and the San

Francisco District Engineer, based on requirements defined in the Final

Rule. The requirement for compliance with the Ocean Dumping Criteria of

the MPRSA may not be superseded by the provisions of any future

comprehensive regional management plan for dredged material.

It is emphasized that ocean dumping site designation does not

constitute or imply EPA Region 9's or the Corps San Francisco

District's approval of actual ocean disposal of dredged materials.

Before ocean dumping of dredged material at the site may begin, EPA

Region 9 and the Corps San Francisco District must evaluate permit

applications according to the Ocean Dumping Criteria (40 CFR Part 227)

adopted pursuant to the MPRSA. EPA Region 9 or the Corps San Francisco

District would not allow ocean dumping if either agency determines that

the Ocean Dumping Criteria of MPRSA have not been met.

F. Compliance With Other Laws and Executive Orders

Consistency With the Coastal Zone Management Act

EPA prepared a Coastal Consistency Determination (CCD) document

based on the evaluations presented in the August, 1993 site designation

EIS. The CCD evaluated whether the proposed action--designation of

``Alternative Site 5'' (now SF-DODS) as described in the site

designation EIS as an ocean disposal site for up to 50 years, and with

an annual capacity of six million cubic yards of dredged material

meeting ocean disposal criteria--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 on April 12, 1994. The Commission staff report

recommended that the Commission concur with EPA's CCD, and the

Commission voted unanimously to concur on the CCD without revision.

Since the approved CCD was based on 50 years of site use at up to

six million cubic yards of dredged material per year, and none of the

options being considered exceed these parameters, the effects of

today's proposal are well within the scope of the prior review and do

not require further Commission review.

Endangered Species Act Consultation

During the development of the August, 1993 site designation EIS,

EPA consulted with the National Marine Fisheries Service (NMFS) and the

U.S. Fish and Wildlife Service (FWS) pursuant to provisions of the

Endangered Species Act, regarding the potential for designation and use

of any of the alternative ocean disposal sites under study to

jeopardize the continued existence of any federally listed threatened

or endangered species. This consultation process is fully documented in

the August, 1993 site designation EIS. NMFS and FWS concluded that none

of the three alternative disposal sites, including Alternative Site 5,

if designated and used for disposal of dredged material meeting ocean

disposal criteria as described in the EIS, would likely jeopardize the

continued existence of any federally listed threatened or endangered

species.

This consultation was based on site use at up to six million cubic

yards of dredged material per year, for 50 years. Since none of the

options being

[[Page 54119]]

considered would exceed these parameters, and since conditions have not

changed for any of the listed or candidate threatened or endangered

species potentially affected by disposal site use, the effects of

today's proposal are well within the scope of the prior consultation

and do not require further Endangered Species Act consultation.

Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant,''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to lead to 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.

This proposed rulemaking should have minimal impact on permittees.

The proposed rule merely addresses the interim capacity and period of

time during which the existing SF-DODS may be used under existing

interim management provisions. It thus has been determined that this

proposed rule is not a ``significant regulatory action'' under the

terms of Executive Order 12866, and is therefore not subject to OMB

review.

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, an agency must

prepare a regulatory flexibility analysis (RFA) unless the head of the

agency certifies that the proposed rule will not have a significant

economic impact on a substantial number of small entities (5 U.S.C.

Secs. 604 & 605). EPA has determined that this proposed rule will not

have a significant economic impact on small entities since the amended

site designation will only have the effect of providing a continuing

disposal option for dredged material. The proposal merely addresses the

interim capacity and period of interim management of the SF-DODS.

Consequently, EPA's action will not impose any additional economic

burden on small entities such as small private dredging operations that

seek authorization for the dumping of dredged materials. For this

reason, the Regional Administrator certifies, pursuant to section

605(b) of the Regulatory Flexibility Act, that the proposed rule will

not have a significant economic impact on a substantial number of small

entities.

Paperwork Reduction Act

The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to

minimize the reporting and record-keeping burden on the regulated

community, as well as to minimize the cost of Federal information

collection and dissemination. In general, the Act requires that

information requests and record-keeping requirements affecting ten or

more non-Federal respondents be approved by the Office of Management

and Budget. Since this proposed rule would not establish or modify any

information or record-keeping requirements, it is not subject to the

requirements of the Paperwork Reduction Act.

The Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.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

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 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, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

This proposed rule contains no Federal mandates (under the

regulatory provisions of Title II of the UMRA) for State, local, or

tribal governments or sections 202 and 205 of the UMRA. As is explained

elsewhere in this preamble, the proposed rule merely relates to the

period of time and interim capacity under which the existing SF-DODS

may be managed by the Federal government under existing interim

provisions. Accordingly, it imposes no new enforceable duty on any

State, local or tribal governments or the private sector. Even if this

proposed rule did contain a Federal mandate, it would not result in

annual expenditures of $100 million or more for State, local, and

tribal governments in the aggregate, or the private sector. Thus this

proposed rule is not subject to the requirements of sections 202 and

205 of the UMRA.

For the foregoing reasons, EPA also has determined that this rule

contains no regulatory requirements that might significantly or

uniquely affect small governments. Thus the requirements of Section 203

of UMRA do not apply to this rule.

List of Subjects in 40 CFR Part 228

Environmental protection, Water pollution control.

Dated: October 4, 1996.

John Wise,

Acting Regional Administrator, EPA Region 9.

In consideration of the foregoing, Subchapter H of Chapter 1 of

Title 40 is proposed to be 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. 1412 and 1418.

Sec. 228.15 [Amended]

Under Extension Options

2. Option 1 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)

are

[[Page 54120]]

amended by removing the words ``December 31, 1996'' each time they

occur, and adding in their place, ``December 31, 1998''.

3. Option 2 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)

are amended by removing the words ``December 31, 1996'' each time they

occur, and adding in their place, ``June 30, 1998''.

4. Option 3 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)

are amended by removing the words ``December 31, 1996'' each time they

occur, and adding in their place, ``December 31, 1997''.

5. Option 4 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)

are amended by removing the words ``December 31, 1996'' each time they

occur, and adding in their place, ``June 30, 1997''.

6. Option 5 for paragraph (l): paragraphs (l) (3)(vii) and (3)(x)

are amended by removing the words ``December 31, 1996'' each time they

occur, and adding in their place, ``four months after such time as the

LTMS final EIS/EIR has been completed and a subsequent Record of

Decision signed by EPA''.

Under Volume Options

7. Option 1 for paragraph (l): paragraph (l)(3)(vii) is amended by

removing the words ``six million cubic yards'' and adding in their

place, ``4.8 million cubic yards''.

8. Option 2 for paragraph (l): paragraph (l)(3)(vii) is amended by

removing the words ``six million cubic yards'' and adding in their

place, ``two million cubic yards''.

9. Option 3 for paragraph (l): paragraph (l)(3)(vii) is amended by

removing the words ``six million cubic yards'' and adding in their

place, ``five million cubic yards''.

[FR Doc. 96-26630 Filed 10-16-96; 8:45 am]

BILLING CODE 6560-50-P