FR Doc 05-14071

[Federal Register: July 18, 2005 (Volume 70, Number 136)]
[Proposed Rules]
[Page 41167-41174]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy05-20]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7938-4]

Ocean Dumping; LA-3 Ocean Dredged Material Disposal Site
Designation

AGENCY: Environmental Protection Agency (EPA)

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes the final
designation of an ocean dredged material disposal site (ODMDS) located
offshore of Newport Beach, California (known as LA-3), managed at a
maximum annual dredged material disposal quantity of 2,500,000 cubic
yards (yd³) (1,911,000 cubic meters [m³]), and
the management of 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 proposed 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: Comments must be received on or before August 17, 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:

------------------------------------------------------------------------
Examples of potentially
Category affected entities
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Industry and General Public............ Ports.
Marinas and Harbors.
Shipyards and Marine
Repair Facilities.
Berth owners.

[[Page 41168]]

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.
Other Federal
agencies, including the
Department of Defense.

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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 is 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 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
(Federal Register, Volume 63, Page 58045 [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 proposed 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[deg] 31'42'' N and 117[deg]
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 proposed action would provide permanent
designation of LA-3 for disposal of dredged materials 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 proposed action would also shift 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[deg] 31'00'' N and 117[deg] 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 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) south-southwest 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[deg] 37'6'' N and 118[deg]
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

[[Page 41169]]

annual average of 200,000 yd\3\ (153,000 m\3\). 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
yd\3\ (298,000 m\3\) per year of dredged material requiring ocean
disposal is expected to be generated in the area. The purpose of the
proposed 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 yd\3\ (298,000 m\3\) 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 yd\3\ [765,000 m\3\] 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 proposed 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 proposed action is final designation of the LA-3 ODMDS managed
at a maximum annual dredged material disposal quantity of 2,500,000
yd\3\ (1,911,000 m\3\) and the management of LA-2 at an increased
maximum annual dredged material disposal quantity of 1,000,000 yd\3\
(765,000 m\3\) 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
proposed 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)).

[[Page 41170]]

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 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[deg]31'00'' N, 117[deg]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[deg]37'06'' N and 118[deg]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

[[Page 41171]]

non-dispersive, and sediments at both sites are expected to settle and
remain offshore (as opposed to onshore).
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 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 proposed LA-3 disposal sites.

F. Responses to Comments

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
proposed 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 worst-case 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 proposed 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, it is acknowledged that designation of the sites does not
preclude material generated in Orange County from being disposed of at
LA-2 and vice versa. 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-by-case
basis through the Marine Protection, Research and Sanctuaries

[[Page 41172]]

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.

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
website 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 proposed 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 proposed 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.

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 proposed 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 proposed 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 proposed Rule should have minimal impact on State, local or
tribal governments or communities. Consequently, EPA has determined
that this proposed 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 record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act

[[Page 41173]]

requires that information requests and record-keeping requirements
affecting ten or more non-Federal respondents be approved by OMB. Since
the proposed Rule would not establish or modify any information or
record-keeping 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 proposed 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
proposed 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 proposed 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 proposed 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 proposed 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
proposed 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 proposed 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 proposed 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 proposed 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 proposed Rule does not
have tribal implications, as specified in Executive Order 13175. The
proposed 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 proposed
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 proposed 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 proposed 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
proposed 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 proposed 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 No. 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
proposed Rule does not involve technical standards. Therefore, EPA is
not considering the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 228

Environmental protection, Water pollution control.

[[Page 41174]]

Dated: July 5, 2005.
Jane Diamond,
Acting Regional Administrator, EPA 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:

Sec. 228.15 Dumping sites designated on a final basis.

* * * * *
(1) * * *
(11) Newport Beach , CA, (LA-3) Ocean Dredged Material Disposal
Site--Region IX.
(i) Location: Center coordinates of the circle-shaped site are:
33[deg]31'00'' North Latitude by 117[deg]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. 05-14071 Filed 7-15-05; 8:45 am]

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