[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Rules and Regulations]
[Pages 33708-33712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14242]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R10-OW-2006-0409; FRL-9161-7]
Ocean Dumping; Correction of Typographical Error in 2006 Federal
Register Final Rule for Designation of Ocean Dredged Material Disposal
Site at Coos Bay, OR, Site F; Restoration of Coordinates for Ocean
Dredged Material Disposal Site at Coos Bay, OR, Site H
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to correct a typographical
error in the Final Rule for the Ocean Dumping; De-designation of Ocean
Dredged Material Disposal Site and Designation of New Site near Coos
Bay, Oregon.
DATES: This rule is effective on August 16, 2010 without further
notice, unless EPA receives adverse comment by July 15, 2010. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.
ADDRESSES: Submit any comments, identified by Docket ID No. EPA-R10-OW-
2006-0409 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for accessing the docket and materials related to this
direct final rule and for submitting comments.
E-mail: [email protected].
Mail: Jessica Winkler, U.S. Environmental Protection
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs
(ETPA-088), Environmental Review and Sediment Management Unit, 1200
Sixth Avenue, Suite 900, Seattle, Washington 98101.
Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy during
normal business hours for the regional library at the U.S.
Environmental Protection Agency, Region 10, Library, 10th Floor, 1200
Sixth Avenue, Suite 900, Seattle, Washington 98101. For access to the
documents at the Region 10 Library, contact the Region 10 Library
Reference Desk at (206) 553-1289, between the hours of 9 a.m, to 12
p.m., and between the hours of 1 p.m. to 4 p.m., Monday through Friday,
excluding legal holidays, for an appointment.
FOR FURTHER INFORMATION CONTACT: Jessica Winkler, U.S. Environmental
[[Page 33709]]
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public
Affairs (ETPA-088), Environmental Review and Sediment Management Unit,
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number:
(206) 553-7369, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
this is a noncontroversial action and EPA anticipates no adverse
comment. The sites have been used as EPA intended and as described in
the preamble to the Federal Register and in the Site Management and
Monitoring Plan (SMMP) and the typographical error was only brought to
EPA's attention in late April 2010. However, in the ``Proposed Rules''
section of this Federal Register, we are publishing a separate document
that will serve as the proposed rule to allow EPA to withdraw this
final rule and respond to comments on this action if adverse comments
are received on this direct final rule. We will not institute a second
comment period on this action. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We will address all public
comments in any subsequent final rule based on the proposed rule.
II. Does this action apply to me?
Persons potentially affected by this action include those who seek
or might seek permits or approval by EPA to dispose of dredged material
into ocean waters pursuant to the Marine Protection, Research, and
Sanctuaries Act (MPRSA), 33 U.S.C. 1401 to 1445. EPA's action would be
relevant to persons, including organizations and government bodies
seeking to dispose of dredged material in ocean waters offshore of the
Coos Bay, Oregon. Currently, the U.S. Army Corps of Engineers (Corps)
would be most affected by this action. Potentially affected categories
and persons include:
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Examples of potentially
Category regulated persons
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Federal Government..................... U.S. Army Corps of Engineers
Civil Works Projects, and
other Federal Agencies.
Industry and General Public............ Port Authorities, Marinas and
Harbors, Shipyards and Marine
Repair Facilities, Berth
Owners.
State, local and tribal governments.... Governments owning and/or
responsible for ports,
harbors, and/or berths,
Government agencies requiring
disposal of dredged material
associated with public works
projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular person, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
III. What is the background for this action?
In 1986, the Regional Administrator designated three disposal sites
(Site E, original Site F and Site H) off of Coos Bay, Oregon under the
MPRSA. Original Site F began to experience mounding and the Corps
selected a 103 Site F to enable the three Coos Sites to accommodate the
total volume of dredged material generated on an annual basis. The
Corps intended to seek designation of the 103 site as soon as
reasonable, however, the 103 Site F was too small for 102 designation
by EPA. Consequently EPA proposed a new Site F on March 31, 2000, which
was larger than the 103 site. In that proposal, EPA also proposed to
de-designate the original Site F. EPA published a final rule, 71 FR
27396 (May 11, 2006), to de-designate original Site F and to designate
new Site F. Figure 1, below, shows all of the Coos Sites, including
Sites E and H, the de-designated Site F, the 103 configured Site F and
the new Site F. The new Site F was designed to ensure that disposal of
dredged material into Site F would be managed to retain material in the
active littoral drift area to augment shoreline building processes and
to allow material placed in the corner of the site closest to the jetty
to continue augmentation toward the nearshore and toward the North
Jetty. The coordinates (North American Datum--NAD 83) for new Site F,
as finalized in the Final Rule preamble, were:
43[deg]22'54.8887'' N., 124[deg]19'28.9905'' W.
43[deg]21'32.8735'' N., 124[deg]20'37.7373'' W.
43[deg]22'51.4004'' N., 124[deg]23'32.4318'' W.
43[deg]23'58.4014'' N., 124[deg]22'35.4308'' W.
These coordinates were the coordinates used in the final Site
Management and Monitoring Plan (SMMP) for the Coos Sites. These
coordinates were to be codified at 40 CFR 228.15(n)(3). However, a
typographical error in the final rule mistakenly allowed the
coordinates to be codified at 40 CFR 228.15(n)(4). This typographical
error led to the result on paper, but not in practice, of leaving the
Original Site F coordinates unchanged and inadvertently overwriting the
coordinates for Site H. The error did not result in any disposal taking
place at any of the Coos Sites in locations not described in the rule
preambles or in the SMMP. The error itself was not discovered until
late April 2010. At all times, disposals of dredged material suitable
for ocean disposal at the Coos Sites took place in the Sites as
described in the preamble to the Final Rule, 71 FR 27396 (May 11,
2006), and in the final SMMP for the Coos Sites.
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IV. What action is EPA taking?
This action corrects the typographical error in EPA's final rule,
71 FR 27396 (May 11, 2006) to amend 40 CFR 228.15 by revising
paragraphs (n)(3) and (n)(4) to read as set forth in the regulatory
text of this final rule.
This correction is an administrative action which replaces the
currently codified coordinates for Site F at 40 CFR 228.15(n)(3) with
the coordinates EPA inadvertently, through a typographical error, named
40 CFR 228.15(n)(4) at 71 FR 27396, (May 11, 2006). This correction
also restores the coordinates for Site H at 40 CFR 228.15(n)(4) which
were overwritten through EPA's typographical error.
This correction does not require re-consultation under the
Endangered Species Act (ESA), 16 U.S.C.1531 to 1544, the Magnuson-
Stevens Act (MSA), 16 U.S.C. 1801 to 1891d, the Marine Mammal
Protection Act of 1972 (MMPA), 16 U.S.C. 1361 to 1389; the Coastal Zone
Management Act (CZMA), 16 U.S.C. 1451 to 1465; or the National Historic
Preservation Act (NHPA), 16 U.S.C. 470 to 470a-2. Consultations under
each of those acts were completed at the time EPA published the final
rule in the Federal Register in 2006. The National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 to 4370f, does not apply to EPA
designations of ocean disposal sites under the MPRSA because the courts
have exempted EPA's actions under the MPRSA from the procedural
requirements of NEPA through the functional equivalence doctrine. EPA's
action to correct the placement of coordinates in the Federal Register
is not an action under EPA's ``Notice of Policy and Procedures for
Voluntary Preparation of NEPA Documents,'' (Voluntary NEPA Policy), 63
FR 58045, (October 29, 1998), requiring the preparation of an
environmental review document.
V. Statutory and Executive Order Review
This rule corrects a typographical error by replacing the currently
codified coordinates for Site F at 40 CFR 228.15(n)(3) with the
coordinates EPA inadvertently, through a typographical error, named 40
CFR 228.15(n)(4) at 71 FR 27396, (May 11, 2006) and by restoring the
coordinates for Site H at 40 CFR 228.15(n)(4) which were overwritten
through EPA's typographical error. This action complies with applicable
executive orders and statutory provisions as follows:
A. Executive Order 12866
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.,
because this rule does not establish or modify any information or
recordkeeping requirements for the regulated community.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires Federal
agencies to prepare a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities,
small entity is defined as: (1) A small business defined by the Small
Business Administration's size regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. EPA determined that this action will not have a
significant economic impact on small entities because the final rule
will only have the effect of regulating the location of sites to be
used for the disposal of dredged material in ocean waters. After
considering the economic impacts of this final rule, I certify that
this action will not have a significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for State, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 because the correction of coordinates for Site F
and the restoration of the appropriate coordinates for Site H will not
have a direct effect on Indian Tribes, on the relationship between the
federal government and Indian Tribes, or on the distribution of power
and responsibilities between the federal government and Indian tribes.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885) as applying only
to those regulatory actions that concern health or safety risks, such
that the analysis required under section 5-501 of the Executive Order
has the potential to influence the regulation. This action is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355) because it is not a ``significant
regulatory action'' as defined under Executive Order 12866.
[[Page 33712]]
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 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. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards. This
action does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629) establishes federal executive
policy on environmental justice. Its main provision directs federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. EPA determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment.
K. Congressional Review Act
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to the House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective sixty days from the date of
publication in the Federal Register if no adverse comment is received.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. 1401, 1411, 1412.
Dated: June 3, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.
0
For the reasons set out in the preamble, EPA amends chapter I, title 40
of the Code of Federal Register as follows:
PART 228--[AMENDED]
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by revising paragraphs (n)(3) and (n)(4)
to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(n) * * *
(3) Coos Bay, OR Dredged Material Site F
(i) Location: 43[deg]22'54.8887'' N., 124[deg]19'28.9905'' W.;
43[deg]21'32.8735'' N., 124[deg]20'37.7373'' W.; 43[deg]22'51.4004''
N., 124[deg]23'32.4318'' W.; 43[deg]23'58.4014'' N.,
124[deg]22'35.4308'' W. (NAD 83).
(ii) Size: 4.45 kilometers long and 2.45 kilometers wide.
(iii) Depth: Ranges from 6 to 51 meters.
(iv) Primary Use: Dredged material determined to be suitable for
ocean disposal.
(v) Period of Use: Continuing Use.
(vi) Restriction: Disposal shall be limited to dredged material
determined to be suitable for unconfined disposal; Disposal shall be
managed by the restrictions and requirements contained in the
currently-approved Site Management and Monitoring Plan (SMMP);
Monitoring, as specified in the SMMP, is required.
(4) Coos Bay, OR Dredged Material Site H
(i) Location: 43[deg]23'53[sec] N., 124[deg]22'48[sec] W.;
43[deg]23'42[sec] N., 124[deg]23'01[sec] W.; 43[deg]24'16[sec] N.,
124[deg]23'26[sec] W.; 43[deg]24'05[sec] N., 124[deg]23'38[sec] W.
(ii) Size: 0.13 square nautical mile.
(iii) Depth: Averages 55 meters.
(iv) Primary Use: Dredged material.
(v) Period of Use: Continuing use.
(vi) Restriction: Disposal shall be limited to dredged material in
the Coos Bay area of type 2 and 3, as defined in the site designation
final EIS.
* * * * *
[FR Doc. 2010-14242 Filed 6-14-10; 8:45 am]
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