[Federal Register Volume 78, Number 234 (Thursday, December 5, 2013)]
[Rules and Regulations]
[Pages 73097-73104]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28808]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R06-OW-2011-0712; FRL-9903-26-Region-6]


Ocean Dumping; Sabine-Neches Waterway (SNWW) Ocean Dredged 
Material Disposal Site Designation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA today designates four new Ocean Dredged Material 
Disposal Sites (ODMDS) located offshore of Texas for the disposal of 
dredged material from the Sabine-Neches Waterway (SNWW) Channel 
Improvement Project (CIP), which includes an extension of the Entrance 
Channel into the Gulf of Mexico, pursuant to the Marine Protection, 
Research and Sanctuaries Act, as amended (MPRSA). The designation of 
these four disposal sites does not by itself authorize the disposal of 
dredged material, but makes these sites available for use for dredged 
material from the CIP if no environmentally preferable, practicable 
alternative for managing that dredged material exists, and if analysis 
of the dredged material indicates that it is suitable for open-water 
disposal. This action is to designate adequate, environmentally-
acceptable ocean disposal site capacity for suitable dredged material 
generated from new work (construction) and future maintenance dredging 
from the SNWW CIP.

DATES: This rule is effective on January 6, 2014.

FOR FURTHER INFORMATION CONTACT: Jessica Franks, Ph.D., Marine and 
Coastal Section (6WQ-EC), Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, telephone (214) 
665-8335, fax number (214) 665-6689; email address 
franks.jessica@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

     A. Potentially Affected Entities
     B. Background
     C. Site Location
     D. Disposal Volume Limit
     E. Site Management and Monitoring Plan
     F. Ocean Dumping Site Designation Criteria
     General Selection Criteria
     Specific Selection Criteria
     G. Responses to Comments
     1. Concerns About Minimizing Ocean Disposal by 
Maximizing Beneficial Re-use
     2. Concerns About a Consistency Determination
     3. Question on the Designation Process
     H. Regulatory Requirements
     National Environmental Policy Act (NEPA)
     Endangered Species Act Consultation
     Magnuson-Stevens Fishery Conservation and Management 
Act of 1996
     Coastal Zone Management Act
     Coastal Barrier Improvement Act of 1990
     Administrative Review
     Executive Order 12886
     Paperwork Reduction Act
     Regulatory Flexibility Act, as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996
     Unfunded Mandates
     Executive Order 13132: Federalism
     Executive Order 13175: Consultation and Coordination 
With Indian Tribal Governments
     Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
     Executive Order 13211: Actions That Significantly 
Affect Energy Supply, Distribution, or Use Compliance With 
Administrative Procedure Act
     National Technology Transfer Advancement Act
     Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low Income 
Populations
     List of Subjects in 40 CFR Part 228


[[Page 73098]]


    The supporting document for these site designations is the Final 
Environmental Impact Statement (EIS) for the Sabine-Neches Waterway 
Channel Improvement Project: Southeast Texas and Southwest Louisiana 
(SNWW CIP) dated March 2011, prepared by the U.S. Army Corps of 
Engineers (also Corps or USACE). Appendix B of Volume III contains the 
Ocean Dredged Material Disposal Sites Final Environmental Impact 
Statement. The U.S. Army Corps of Engineers Final EIS for the SNWW CIP 
was published in the Federal Register (FR) April 4, 2011 (Vol. 76, Nos. 
43). That document is available for public inspection at the following 
locations:
    1. Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733
    2. Federal e-Rulemaking Portal: http://www.regulations.gov.

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 offshore of Texas for the disposal of dredged 
material from the Sabine-Neches Waterway, under the Marine Protection 
Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Final Rule 
would be primarily of relevance to the US Army Corps of Engineers when 
proposing to dispose of dredged material from the Sabine-Neches 
Waterway. Potentially affected categories and entities include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        affected entities
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide regarding entities likely to be affected by this action. For 
questions regarding the applicability of this action to a particular 
entity, please refer to the contact person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. Background

    Ocean disposal of dredged materials is regulated under Title I of 
the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. 1401 et 
seq. (MPRSA). The EPA and the USACE share responsibility for the 
management of ocean disposal of dredged material. Under Section 102 of 
MPRSA, EPA is responsible for designating an acceptable location for 
the ocean dredged material disposal sites (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 40 CFR part 227.
    Pursuant to its voluntary NEPA policy, published at 63 FR 58045 
(October 29, 1998), EPA typically relies on the EIS process to enhance 
public participation on the Final designation of an ODMDS. A site 
designation EIS evaluates alternative sites and examines the potential 
environmental impacts associated with disposal of dredged material at 
various locations. Such an EIS first demonstrates the need for the 
ODMDS designation action (40 CFR 6.203(a) and 40 CFR 1502.13) by 
describing available or potential aquatic and non-aquatic (i.e., land-
based) alternatives and the consequences of not designating a site--the 
No Action Alternative. Once the need for an ocean disposal site is 
established, potential sites are screened for feasibility through a 
Zone of Siting Feasibility (ZSF) process. Potential alternative sites 
are then evaluated using EPA's ocean disposal criteria at 40 CFR part 
228 and compared in the EIS. Of the sites that satisfy these criteria, 
the site that best complies is selected as the preferred alternative 
for designation through a rulemaking process published in the Federal 
Register (FR).
    Formal designation of an ODMDS in the Federal Register and 
codification in the Code of Federal Regulations does not constitute 
approval of dredged material for ocean disposal. Site designation 
merely identifies a suitable ocean location in the event that dredged 
material is later approved for ocean disposal. Designation of an ODMDS 
provides an ocean disposal alternative for consideration in the review 
of each proposed dredging project. Before any ocean disposal may take 
place, the dredging project proponent must demonstrate a need for ocean 
disposal, including consideration of alternatives. Alternatives to 
ocean disposal, including the option for beneficial re-use of dredged 
material, are evaluated for each dredging project that may result in 
the ocean disposal of dredged materials from such project. Ocean 
disposal of dredged material is only allowed after both EPA and USACE 
determine that the proposed activity is environmentally acceptable 
under criteria codified at 40 CFR part 227 and 33 CFR part 336, 
respectively. In addition, ongoing management of these ODMDS would be 
subject to Site Management and Monitoring Plan(s) (SMMP) required by 
MPRSA section 102(c)(3)(F) and (c)(4), which are discussed more fully 
below.
    Decisions to allow ocean disposal are made on a case-by-case basis 
through the MPRSA Section 103 permitting process, resulting in a USACE 
permit 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 tests prescribed by national sediment testing protocols 
(EPA and USACE 1991). Only clean non-toxic dredged material is 
acceptable for ocean disposal. The newly designated sites will be 
subject to ongoing monitoring and management to ensure continued 
protection of the marine environment.
    Evaluation of the ODMDS under EPA's general and specific criteria 
is described in the March 2011 ``Final Environmental Impact Statement 
for Sabine-Neches Waterway Channel Improvement Project Southeast Texas 
and Southwest Louisiana, Appendix B.'' The Final Rule provides 
adequate, environmentally-acceptable ocean disposal site capacity for 
suitable dredged material generated from new work (construction) and 
future maintenance dredging along the SNWW Entrance Channel 13.2-mile 
extension by formally designating the SNWW A-D sites as acceptable 
ocean disposal locations for dredged material meeting applicable 
requirements.
    The proposed rule for designation was published in the Federal 
Register on June 27, 2013, as docket number EPA-R06-OW-2011-0712. The 
comment

[[Page 73099]]

period closed on August 12, 2013. Comments received are addressed in 
section G., below. Under NEPA, federal agencies prepare a public record 
of decision (ROD) at the time of their decision on any action for which 
an FEIS has been prepared. This final rulemaking notice serves the same 
purpose as a ROD required under regulations promulgated by the Council 
on Environmental Quality for federal agencies subject to NEPA (CEQ 
Regulations 40 CFR 1505.2

C. Location

    As identified in Appendix B of the FEIS, the environmentally 
preferred sites which EPA now designates are SNWW-A, which is located 
21 miles from shore, SNWW-B, which is located 24 miles from shore, 
SNWW-C, which is located 27 miles from shore, and SNWW-D, which is 
located 30 miles from shore. Each of the ODMDS occupies an area of 5.3 
square statute miles, with depths ranging from 44 to 46 feet. The 
bottom topography is flat.

D. Disposal Volume Limit

    The action designates the SNWW A-D for a one-time placement of 
approximately 18,737,000 cubic yards (cy) of new work (construction) 
material plus approximately 37,725,000 cubic yards of maintenance 
material over a 50-year period. The need for ongoing ocean disposal 
capacity is based on modeling in the USACE SNWW CIP Engineering 
Appendix.

E. Site Management and Monitoring Plan (SMMP)

    Continuing use of the sites requires verification that significant 
impacts do not occur outside of the disposal site boundaries through 
implementation of the SMMP developed as part of the Final EIS for the 
Sabine-Neches Waterway Project. The SMMP provides a structured 
framework 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). 
Two main objectives for management of SNWW A-D are: (1) To ensure that 
only dredged material that satisfies the criteria set forth in 40 CFR 
part 227, subparts B, C, D, E, and G and Sec.  228.4(e) and is suitable 
for unrestricted placement at the ODMDS is, in fact, disposed at the 
sites, and; (2) to avoid excessive mounding, either within the site 
boundaries or in areas adjacent to the sites, as a direct result of 
placement operations.
    The EPA and USACE Galveston District personnel will achieve SMMP 
objectives by jointly administering the following activities in 
accordance with MPRSA section 102(c)(3): (1) A baseline assessment of 
conditions at the sites; (2) a program for monitoring the sites; (3) 
special management conditions or practices to be implemented at the 
sites that are necessary for protection of the environment; (4) 
consideration of the quantity of dredged material to be discharged at 
the sites, and the presence, nature, and bioavailability of the 
contaminants in the material; (5) consideration of the anticipated use 
of the sites over the long term, including the anticipated closure date 
for the sites, if applicable, and any need for management of the sites 
after the closure; and (6) a schedule for review and revision of the 
SMMP.
    The SMMP requires periodic physical monitoring to confirm that 
disposal material is deposited within the seafloor disposal boundary, 
as well as bathymetric surveys to confirm that there is no excessive 
mounding or short-term transport of material beyond the limits of the 
ODMDS. The SMMP describes physical and chemical sediment and biological 
monitoring requirements. Monitoring activities are required to be 
conducted based on the Evaluation of Dredged Material Proposed for 
Ocean Disposal Testing Manual, EPA 503/8-91/001 and the Joint EPA-USACE 
Regional Implementation Agreement (RIA) procedures. Results will be 
used to confirm that dredged material actually disposed at the sites 
satisfies the criteria set forth in 40 CFR part 227, subparts B, C, D, 
E, and G, and Sec.  228.4(e) and is suitable for unrestricted ocean 
disposal. Other activities implemented through the SMMP to achieve 
these objectives include: (1) Regulating quantities and types of 
material to be disposed, including the time, rates, and methods of 
disposal; and (2) recommending changes to site use requirements, 
including disposal amounts or timing, based on periodic evaluation of 
site monitoring results.

E. Ocean Dumping Site Designation Criteria

    Five general criteria and 11 specific site selection criteria are 
used in the selection and approval of ocean disposal sites for 
continued use (40 CFR 228.5 and 40 CFR 228.6(a)).

General Selection Criteria

    1. The dumping of materials into the ocean will be permitted only 
at sites or in areas selected to minimize the interference of disposal 
activities with other activities in the marine environment, 
particularly avoiding areas of existing fisheries or shellfisheries, 
and regions of heavy commercial or recreational navigation.
    The EPA selected SNWW A-D, including appropriate buffer zones, to 
avoid sport and commercial fishing activities, as well as other areas 
of biological sensitivity. The preferred ODMDS are outside the channel, 
including the navigation channel buffer zone, and safety fairways, and 
avoid known navigational obstructions, although they do infringe on two 
Fairway Anchorage areas.
    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 sizes for the buffer zones and for the SNWW A-D sites are based 
on sediment transport modeling and the physical oceanographic 
characterization of the Sabine Pass area. Modeling and 
characterization, combined with the information on the expected quality 
of the material to be dredged, ensures that perturbations caused by 
placement are reduced to ambient conditions at the boundaries of the 
site. Reports of the modeling and characterization are included in the 
administrative record for this action.
    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.
    This criterion does not apply to the Final Site designations 
because they are not existing sites that had previously been approved 
on an interim basis.
    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 sizes of the Final Sites are as small as possible to reasonably 
meet the criteria stated in 40 CFR 228.5 and 40

[[Page 73100]]

CFR 228.6(a). The size for each Final ODMDS is 5.32 square statute 
miles (4.02 square nautical miles). The SMMPs were designed to provide 
adequate surveillance to prevent adverse long-range impacts.
    5. The EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.
    Cost, safety, and time factors plus difficulties with monitoring 
and surveillance preclude the designation of any ODMDS beyond the edge 
of the Continental Shelf off Sabine Pass (and the Gulf of Mexico 
generally). Additionally, uncertainty about the resilience of the deep-
ocean benthic community indicates that an off-shelf disposal site could 
threaten severe adverse impacts to that off-shelf benthic community. 
The EPA did not identify an environmental advantage to an off-shelf 
site designation, whereas possible adverse impacts to the human 
environment could be more easily monitored at a nearshore site. The 
existing ODMDS that have been used historically, while large enough to 
accommodate future maintenance material, are cost prohibitive with 
regard to disposal of dredged material from the channel extension. 
Without designation of the four new ODMDS, this material would need to 
be transported to the existing maintenance ODMDS. The end of the 
existing channel is roughly 13 miles from the end of the proposed 
extension, resulting in an increased travel distance of 26 miles for 
each load of dredged material from the extension work. Construction 
costs are expected to double under this scenario, making it impossible 
to economically justify the SNWW CIP.

Specific Selection Criteria

    1. Geographical position, depth of water, bottom topography, and 
distance from the coast.
    The four new ODMDS sites are bounded by the following coordinates 
(Location North American Datum from 1983):

A                 ODMDS                  29[deg]24'47'' N, 93[deg]43'29'' W; 29[deg]24'47'' N, 93[deg]41'08'' W
                                         29[deg]22'48'' N, 93[deg]41'09'' W; 29[deg]22'49'' N, 93[deg]43'29'' W
B                 ODMDS                  29[deg]21'59'' N, 93[deg]43'29'' W; 29[deg]21'59'' N, 93[deg]41'08'' W
                                         29[deg]20'00'' N, 93[deg]41'09'' W; 29[deg]20'00'' N, 93[deg]43'29'' W
C                 ODMDS                  29[deg]19'11'' N, 93[deg]43'29'' W; 29[deg]19'11'' N, 93[deg]41'09'' W
                                         29[deg]17'12'' N, 93[deg]41'09'' W; 29[deg]17'12'' N, 93[deg]43'29'' W
D                 ODMDS                  29[deg]16'22'' N, 93[deg]43'29'' W; 29[deg]16'22'' N, 93[deg]41'10'' W
                                         29[deg]14'24'' N, 93[deg]44'10'' W; 29[deg]14'24'' N, 93[deg]43'29'' W
 

    The water depth at the SNWW A-D sites ranges from 44 to 46 feet and 
the bottom topography is flat. SNWW-A is located 21 miles from shore, 
SNWW-B is located 24 miles from shore, SNWW-C is located 27 miles from 
shore and SNWW-D is located 30 miles from shore.
    2. Location in relation to breeding, spawning, nursery, feeding, or 
passage areas of living resources in adult or juvenile phases.
    Due to the marine open water locale of the SNWW A-D sites, the 
presence of aerial, pelagic, or benthic living resources is likely 
within the area of the sites. The location of the ODMDS is between the 
principal spawning areas and the estuarine nursery areas. The water 
column and benthic effects associated with ocean disposal of dredged 
material at the ODMDS would not adversely affect the passage of 
organisms to and from the spawning-nursery areas through the waters 
above the disposal sites. Localized and intermittent dredged material 
disposal operations are unlikely to adversely affect migration, 
feeding, or nesting of marine mammals and sea turtles.
    3. Location in relation to beaches and other amenity areas.
    The SNWW A-D sites are over 21 miles from any beach and Sabine Bank 
is at least 1.7 miles from the nearest of the ODMDS. According to the 
dredged material transport model (available in the administrative 
record), the maximum distance for the mounded dredged material to reach 
ambient depth is 1,081 feet. Doubling this distance would provide a 
buffer of 0.4 mile, only a fraction of the 1.7 miles to Sabine Bank.
    4. Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packaging the waste, 
if any.
    Only suitable dredged material from the SNWW Entrance Channel 13.2 
mile extension may be disposed at the sites. 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 from the SNWW Entrance Channel 13.2 mile extension would be 
allowed to be disposed of at the SNWW A-D sites. Approximately 18.7 mcy 
of new work material will be dredged during the construction of 13.2-
mile extension of the Entrance Channel. Maintenance material per 
dredging cycle is estimated at three mcy for a total of 37.7 mcy over a 
period of 50 years. Dredged material is expected to be released from 
hopper dredges.
    5. Feasibility of surveillance and monitoring.
    Surveillance and monitoring are feasible at the SNWW A-D sites. The 
SMMP prepared for the sites consists of (1) a method for recording the 
location of each discharge; (2) bathymetric surveys; and, (3) grain-
size analysis, sediment chemistry characterization, and benthic 
infaunal analysis at selected stations.
    6. Dispersal, horizontal transport, and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any.
    These three physical oceanographic parameters were used by the U.S. 
Army Corps of Engineers to develop the necessary buffer zones for the 
exclusion analysis and to determine the adequacy of size of the SNWW A-
D sites. Predominant longshore currents, and thus predominant longshore 
transport, are to the west. Long-term mounding has not historically 
occurred in the existing nearby ODMDS. Therefore, steady longshore 
transport and occasional storms, including hurricanes, are expected to 
remove the disposed material from the sites through dispersal, 
horizontal transport, and vertical mixing.
    7. Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects).
    The Final Environmental Impact Statement (EIS) discusses the 
results of chemical and bioassay testing of samples collected to 
support the proposed Waterway Extension and surrounds, and concluded 
that there were no indications of water or sediment quality problems in 
the ZSF, including the proposed disposal sites. Testing of dredged 
material collected and tested from past maintenance dredging indicates 
that the material dredged from the channel was acceptable for ocean 
disposal according to the evaluation criteria published at 40 CFR part 
227. Based on current direction and modeling of the new work and 
maintenance material, the SNWW A-D sites are situated to prevent 
discharged material from reentering the

[[Page 73101]]

channel and to ensure that any mounding poses no obstruction to 
navigation. No cumulative mounding has been detected at the existing 
ODMDS and there is no reason to expect any at the SNWW A-D ODMDS.
    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.
    The interference considerations that are pertinent to the present 
situation are shipping, mineral extraction, commercial and recreational 
fishing, and recreational areas. The SNWW A-D ODMDS will not interfere 
with these or other legitimate uses of the ocean because the exclusion 
processes used to identify the sites was designed to prevent the 
selection of sites that would cause any such interference. Ocean 
disposal of dredged material in the past has not interfered with other 
uses.
    9. Existing water quality and ecology of the site as determined by 
available data or by trend assessment or baseline surveys.
    The FEIS to support the proposed Waterway Extension project cited a 
baseline study, which used sediment samples from the area of the 
proposed Extension and the ZSF. No adverse water or sediment quality 
concerns were indicated. Sampled and characterized, benthos of the 
area, is dominated by polychaetes (57.7%) and included abundant 
populations of malacostracans (18.3%) and bivalves (7.7%). Density 
ranged from 4,055 organisms/square foot at Station 3 (north of ODMDS A) 
up to 30,265 organisms/square foot at Station 26 (center of ODMDS B). 
Areas of moderately high sand content (68 to 91%) supported the highest 
densities, located near ODMDS B and ODMDS C, near the center of the 
ZSF. In general, the water and sediment quality is good throughout the 
ZSF and in the existing (historically used) ODMDS. There have been no 
long-term adverse impacts on water and sediment quality or benthos at 
the existing ODMDS, and none are expected with use of the SNWW A-D 
sites.
    10. Potentiality for the development or recruitment of nuisance 
species in the disposal site.
    With disturbances to any benthic community, opportunistic species 
would initially recolonize the area. At this location, however, these 
species would not be nuisance species, i.e., they would not interfere 
with other legitimate uses of the ocean, they would not be human 
pathogens, and they would not be non-indigenous species. The placement 
of dredged material in the past has not attracted or promoted 
development or recruitment of nuisance species, and the placement of 
the dredged material from new work and future maintenance dredged 
material should not attract or promote the development or recruitment 
of nuisance species.
    11. Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    Historic records generated by the former Minerals Management 
Service (MMS) indicate that no historic shipwrecks are mapped within 
the limits of the SNWW A-D ODMDS, but remote-sensing surveys have not 
been conducted. Ocean disposal of dredged material is not expected to 
adversely affect any unrecorded wrecks given the depth of water through 
which the material would settle and the expected depth of burial at the 
time of disposal, particularly given the dispersive nature of the 
seabed environment in this portion of the Gulf. The distribution, 
depth, and dispersion of dredged material within these ODMDS have been 
evaluated by numerical modeling (PBS&J, 2006). Hopper dredges would 
drop dredged material onto the ODMDS, forming mound fields with 
individual mounds totaling no more than five feet in height. The 
effects of the deposition of material on any undiscovered feature would 
be cushioned by settling through water depths ranging from 30 to 45 
feet. Previous monitoring of existing placement areas and studies of 
bottom ocean currents has shown that the material would disperse 
between channel maintenance cycles and not accumulate. The SNWW A-D 
ODMDS are located in Federal waters (i.e., outside of adjacent State 
jurisdiction).

G. Responses to Comments

    The proposed rule for designation was published in the Federal 
Register on June 27, 2013, as docket number EPA-R06-OW-2011-0712. The 
comment period closed on August 12, 2013. The EPA received four 
comments on the proposed rule from three entities and one individual. 
These comments are responded to here.

1. Concerns About Minimizing Ocean Disposal by Maximizing Beneficial 
Re-Use

    Two commenters expressed concerns about using new dredged material 
for beneficial use instead of placement in the ODMDS SNWW A-D 
designated areas. The Louisiana Department of Wildlife and Fisheries 
recommended using new work material beneficially. An individual 
commenter expressed concern that disposal of dredged material would 
increase hypoxia in the Gulf of Mexico and recommended beneficial use 
of dredged material.
    Disposal or re-use placement alternatives that could practicably 
meet the purpose and need of a dredging project must be evaluated at 
the time of project-specific permitting. Timing and logistics can 
affect the practicability of dredged material disposal or beneficial 
use alternatives. For an individual project, ocean disposal is 
permitted only when other alternatives are not practicable. However, 
determining the availability of alternatives for individual dredging 
projects is independent of this ODMDS designation action, and such 
comments are not further addressed here.

2. Concerns About a Consistency Determination

    The Louisiana Department of Natural Resources (LDNR), Office of 
Coastal Management, commented that this designation action ``will 
require the preparation of a consistency determination in accordance 
with section 307(c) of the Coastal Zone Management Act.'' Pursuant to 
section 307(c)(1) of the Coastal Zone Management Act, federal 
activities that affect a state's coastal zone must be consistent to the 
maximum extent practicable with the enforceable policies of the state's 
approved coastal zone management program. To implement that 
requirement, federal agencies prepare coastal consistency 
determinations and submit them to the appropriate state agencies, which 
may concur in or object to a consistency determination. In connection 
with its preparation of the EIS on the Sabine-Neches Waterway Channel 
Improvement Project, the Corps of Engineers prepared a coastal 
consistency determination on its proposed navigation projects and the 
ODMDS designation, which it submitted to the Louisiana Department of 
Natural Resources (LDNR) and the Texas General Land Office (TGLO), the 
agencies implementing approved coastal zone management plans for their 
respective states. On March 30, 2010, TGLO concurred in the Corps 
consistency determination. By letter of March 31, 2010, LDNR concurred 
on condition that the Corps submit a supplemental consistency 
determination to LDNR after the project planning and design process, 
which results in a more detailed description of project features. The 
LDNR's letter also generally opposed EPA's ODMDS designation, noting 
that the designation would provide the Corps an option

[[Page 73102]]

other than beneficial use for disposal of dredged material. More 
detailed plans and descriptions of the proposed navigation projects may 
be needed for LDNR and the Corps to resolve potential issues on the 
practicability of beneficial use of dredged materials in Louisiana's 
coastal zone. However, such issues are independent of EPA's proposed 
ODMDS designations, which only make an offshore disposal option 
available when the Corps deems beneficial use that might otherwise be 
required by a state CZM program impracticable. The EPA supports 
beneficial use of dredged material, but ODMDS designations do not in 
any way require that the Corps forego beneficial use in favor of ocean 
disposal.
    Moreover, the closest of any of the four ODMDS is approximately 20 
miles off the Texas coast at its nearest point. Predominant longshore 
currents in the ODMDS locations flow from east to west and dredged 
material transport modeling shows that any dredged materials discharged 
to them will not thus enter or otherwise affect Louisiana's coastal 
zone. Because this ODMDS designation will not affect any land or water 
use or natural resource of Louisiana's coastal zone, no coastal 
consistency determination need be prepared for this action.

3. Question on the Designation Process

    One commenter from the U.S. Coast Guard asked for clarification on 
the Rule-Making process for the designation of the ODMDS A-D sites. The 
EPA provided clarification to the commenter.

G. Regulatory Requirements

1. National Environmental Policy Act (NEPA)

    Pursuant to section 102(2)(C) of the National Environmental Policy 
Act of 1969 (NEPA), federal agencies are generally required to prepare 
an environmental impact statement (EIS) on major federal actions 
significantly affecting the quality of the human environment. Under the 
doctrine of functional equivalency, EPA designations of ODMDS under 
MPRSA are not subject to NEPA requirements. The EPA believes the NEPA 
process enhances public participation on such designations and the 
potential effects of these designations were fully analyzed in an EIS 
on the Sabine-Neches Waterway Channel Improvement Project: Southeast 
Texas and Southwest Louisiana (SNWW CIP). The Corps of Engineers was 
the lead agency on that EIS and EPA was a cooperating agency.
    Notice of the draft EIS was published in the Federal Register on 
December 24, 2009, and the document was available for review and 
comment through March 10, 2010. In addition, public meetings on the EIS 
were held in Beaumont, Texas and Lake Charles, Louisiana. Comments 
included concerns on pipeline relocation, marsh ecology, beneficial use 
of dredged material, and increased danger from storms. Few comments 
were received on designation of the ODMDS. Detailed responses to 
comments were published in Appendix A of the final EIS, notice of which 
was published in the Federal Register on March 4, 2012. The EPA has 
relied on information from the EIS and its technical appendices in its 
consideration and application of ocean dumping criteria to the four 
ODMDS this Rule designates.

2. Endangered Species Act Consultation

    During development of the SNWW CIP project EIS referenced above, 
USACE and EPA consulted with the U.S. Fish and Wildlife Service (USFWS) 
and the National Marine Fisheries Service (NMFS) 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. The consultation 
process is documented in the EIS.
    Of the Threatened or Endangered Species noted in the biological 
assessment for the SNWW CIP, only sea turtles and whales are found as 
far offshore as the SNWW A-D ODMDS. The NMFS issued a biological 
opinion on August 13, 2007, that site designation is not likely to 
jeopardize the continued existence of any Federally-listed species.

3. Magnuson-Stevens Fishery Conservation and Management Act of 1996

    The designation of the SNWW A-D ODMDS will not adversely affect 
essential fish habitat. By letter dated March 8, 2010, the National 
Marine Fisheries Service concurred with the USACE findings that 
beneficial features associated with the project would offset any 
adverse impacts of the Waterway Expansion project.

4. Coastal Zone Management Act

    Pursuant to section 307(c)(1) of the Coastal Zone Management Act, 
federal activities that affect a state's coastal zone must be 
consistent to the maximum extent practicable with the enforceable 
policies of the state's approved Coastal Zone Management (CZM) program. 
To implement that requirement, federal agencies prepare coastal 
consistency determinations and submit them to the appropriate state 
agencies, which may concur in or object to a consistency determination.
    In connection with its preparation of the EIS on the Sabine-Neches 
Waterway Channel Improvement Project, the Corps prepared a coastal 
consistency determination on its proposed navigation projects and the 
ODMDS designation, which it submitted to the Louisiana Department of 
Natural Resources (LDNR) and the Texas General Land Office (TGLO), the 
agencies implementing approved coastal zone management plans for their 
respective states. On March 30, 2010, TGLO concurred in the Corps 
consistency determination. By letter of March 31, 2010, LDNR concurred 
on condition that the Corps submit a supplemental consistency 
determination to LDNR after the project planning and design process, 
resulting in a more detailed description of project features. The 
LDNR's letter also generally opposed EPA's ODMDS designation, claiming 
it would provide the Corps an option other than beneficial use for 
disposal of dredged material.
    More detailed plans and descriptions of the proposed navigation 
projects may be needed for LDNR and the Corps to resolve potential 
issues on the practicability of beneficial use of dredged materials in 
Louisiana's coastal zone. Such issues are independent of EPA's proposed 
ODMDS designations, however, which only make an offshore disposal 
option available when the Corps deems beneficial use that might 
otherwise be required by a state CZM program impracticable. The EPA 
supports beneficial use of dredged material, but ODMDS designations do 
not in any way require that the Corps forego beneficial use in favor of 
ocean disposal.
    Moreover, the closest of any of the four SNWW A-D ODMDS is 
approximately 20 miles off the Texas coast at its nearest point. 
Predominant longshore currents in the SNWW A-D ODMDS locations flow 
from east to west. Dredged material transport modeling shows that any 
dredged materials discharged to the SNWW A-D ODMDS will not thus enter 
or otherwise affect Louisiana's coastal zone. Because the SNWW A-D 
ODMDS designations will not affect any land or water use or natural 
resource of Louisiana's coastal zone, a coastal consistency 
determination is not needed.

[[Page 73103]]

5. Coastal Barrier Improvement Act of 1990

    The Coastal Barrier Improvement Act is intended to protect fish and 
wildlife resources and habitat, prevent loss of human life, and 
preclude the expenditure of Federal funds that may induce development 
on coastal barrier islands and adjacent nearshore areas. The Coastal 
Barrier Improvement Act of 1990 was enacted to reauthorize the Coastal 
Barrier Resources Act (CBRA) of 1982. Exceptions to the Federal 
expenditure restrictions include maintenance or constructed 
improvement(s) to existing Federal navigational channels and related 
structures (e.g., jetties), including the disposal of dredged materials 
related to maintenance and construction; therefore, project activities 
related to disposal are exempt from the prohibitions set forth in this 
act, as noted in the Final EIS for the SNWW CIP, Vol. II.

H. Administrative Review

    This rule designates ocean dredged material disposal sites pursuant 
to Section 102 of the MPRSA. This action complies with applicable 
executive orders and statutory provisions as follows:

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 office of Management and Budget (OMB) review and 
other requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to lead to a 
rule that may:
    (a) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or Tribal governments or communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof: Or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This Final Rule should have minimal impact on State, local, or 
Tribal governments or communities. Consequently, EPA has determined 
that this Final Rule is not a ``significant regulatory action'' under 
the terms of Executive Order 12866.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is intended to 
minimize the reporting and recordkeeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by OMB. Since the Final Rule 
would not establish or modify any information or recordkeeping 
requirements, but only clarifies existing requirements, it is not 
subject to the provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) provides that whenever an 
agency promulgates a final rule under 5 U.S.C. 553, the agency must 
prepare a regulatory flexibility analysis (RFA) unless the head of the 
agency certifies that the final rule will not have a significant 
economic impact on a substantial number of small entities (5 U.S.C. 604 
and 605). The site designation and management actions would only have 
the effect of setting maximum annual disposal volume and providing a 
continuing disposal option for dredged material. Consequently, EPA's 
action will not impose any additional economic burden on small 
entities. For this reason, the Regional Administrator certifies, 
pursuant to section 605(b) of the RFA, that the Final Rule will not 
have a significant economic impact on a substantial number of small 
entities.

4. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. This Final Rule contains no Federal 
mandates (under the regulatory provisions of Title II of the UMRA) for 
State, local or Tribal governments or the private sector that may 
result in estimated costs of $100 million or more in any year. It 
imposes no new enforceable duty on any State, local or Tribal 
governments or the private sector nor does it contain any regulatory 
requirements that might significantly or uniquely affect small 
government entities. Thus, the requirements of section 203 of the UMRA 
do not apply to this Final Rule.

5. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This Final Rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This Final Rule does not have 
Tribal implications, as defined in Executive Order 13175.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This Executive Order (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by EPA. This Final Rule is not subject 
to the Executive Order because it is not economically significant as 
defined in Executive Order 12866, and because EPA does not have reason 
to believe the

[[Page 73104]]

environmental health or safety risks addressed by this action present a 
disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use Compliance With Administrative Procedure 
Act

    This Final Rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866. The Final 
Rule would only have the effect of setting maximum annual disposal 
volumes and providing a continuing disposal option for dredged 
material. Thus, EPA concluded that this Final Rule is not likely to 
have any adverse energy effects.

9. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. This Final Rule does not involve technical 
standards. Therefore, EPA is not considering the use of any voluntary 
consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629) directs Federal agencies to 
determine whether the Final Rule would have a disproportionate adverse 
impact on minority or low-income population groups within the project 
area. The Final Rule would not significantly affect any low-income or 
minority population.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: October 31, 2013.
Ron Curry,
Regional Administrator, Region 6.

    In consideration of the foregoing, EPA amends part 228, chapter I 
of title 40 of the Code of Federal Regulations as follows:

PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING

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 adding paragraphs (j)(22) through (25) 
to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (j) * * *
    (22) Sabine-Neches, TX Dredged Material Site A.
    (i) Location: 29[deg]24'47'' N., 93[deg]43'29'' W.; 29[deg]24'47'' 
N., 93[deg]41'08'' W.; 29[deg]22'48'' N., 93[deg]41'09'' W.; 
29[deg]22'49'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. Disposal operations shall be conducted in accordance with 
requirements specified in a Site Management and Monitoring Plan 
developed by EPA and USACE, to be reviewed periodically, at least every 
10 years.
    (23) Sabine-Neches, TX Dredged Material Site B.
    (i) Location: 29[deg]21'59'' N., 93[deg]43'29'' W.; 29[deg]21'59'' 
N., 93[deg]41'08'' W.; 29[deg]20'00'' N., 93[deg]41'09'' W.; 
29[deg]20'00'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. Disposal operations shall be conducted in accordance with 
requirements specified in a Site Management and Monitoring Plan 
developed by EPA and USACE, to be reviewed periodically, at least every 
10 years.
    (24) Sabine-Neches, TX Dredged Material Site C.
    (i) Location: 29[deg]19'11'' N., 93[deg]43'29'' W.; 29[deg]19'11'' 
N, 93[deg]41'09'' W.; 29[deg]17'12'' N., 93[deg]41'09'' W.; 
29[deg]17'12'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. Disposal operations shall be conducted in accordance with 
requirements specified in a Site Management and Monitoring Plan 
developed by EPA and USACE, to be reviewed periodically, at least every 
10 years.
    (25) Sabine-Neches, TX Dredged Material Site D.
    (i) Location: 29[deg]16'22'' N., 93[deg]43'29'' W.; 29[deg]16'22'' 
N., 93[deg]41'10'' W.; 29[deg]14'24'' N., 93[deg]44'10'' W.; 
29[deg]14'24'' N., 93[deg]43'29'' W.; thence to point of beginning.
    (ii) Size: approximately 5.3 square miles.
    (iii) Depth: Ranges from 44 to 46 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Sabine-Neches 13.2 mile Extension Channel that complies with 
EPA's Ocean Dumping Regulations. Dredged material that does not meet 
the criteria set forth in 40 CFR part 227 shall not be placed at the 
site. Disposal operations shall be conducted in accordance with 
requirements specified in a Site Management and Monitoring Plan 
developed by EPA and USACE, to be reviewed periodically, at least every 
10 years.
* * * * *
[FR Doc. 2013-28808 Filed 12-4-13; 8:45 am]
BILLING CODE 6560-50-P