[Federal Register Volume 85, Number 150 (Tuesday, August 4, 2020)]
[Rules and Regulations]
[Pages 47035-47042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15963]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2016-0354; FRL-10012-27-Region 4]


Ocean Dumping: Modification of an Ocean Dredged Material Disposal 
Site Offshore of Mobile, Alabama

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is issuing a rule 
that modifies the existing EPA-designated ocean dredged material 
disposal site (ODMDS) offshore of Mobile, Alabama (referred to 
hereafter as the existing Mobile ODMDS), pursuant to the Marine 
Protection, Research and Sanctuaries Act of 1972, as amended (MPRSA). 
The primary purpose for the

[[Page 47036]]

site modification is to enlarge the site to serve the long-term need 
for a location to dispose of suitable material dredged from the Mobile 
Harbor Federal navigation channel, and for the disposal of suitable 
dredged material for persons who receive a MPRSA permit for such 
disposal from other sites within Mobile Bay/Port of Mobile. The 
modified site will be subject to monitoring and management to ensure 
continued protection of human health and the marine environment.

DATES: This final rule is effective on September 3, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R04-OW-2016-0354. All documents in the docket are 
listed on the http://www.regulations.gov website. Publicly available 
docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental 
Protection Agency, Region 4, Water Division, Oceans and Estuarine 
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone 
number (404) 562-8082; email: Lehmann.Wade@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval to dispose of dredged material into 
ocean waters pursuant to the MPRSA, 33 U.S.C. 1401 to 1445. The EPA's 
action would be relevant to persons, including organizations and 
government bodies, seeking to dispose of dredged material in ocean 
waters offshore of Mobile, Alabama. Currently, the U.S. Army Corps of 
Engineers (USACE) would be most affected by this action. Potentially 
affected categories and persons include:

------------------------------------------------------------------------
                                      Examples of potentially regulated
             Category                              persons
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Federal government................  USACE 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 owning and/or
 governments.                        responsible for ports, harbors, and/
                                     or berths, Government agencies
                                     requiring disposal of dredged
                                     material associated with public
                                     works projects.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding 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.

II. Background

a. History of Disposal Sites Offshore of Mobile, Alabama

    The Mobile ODMDS is located between two and six miles south of 
Dauphin Island in the Gulf of Mexico and is 4.75 square nautical miles 
(nmi\2\) in size. The Mobile ODMDS received interim site designation 
status in 1977 and final designation in 1988.
    The USACE Mobile District and the EPA Region 4 have identified a 
need to either designate a new ODMDS or modify the existing Mobile 
ODMDS. The need for modifying the ocean disposal capacity is based on 
future capacity requirements, historical dredging volumes, estimates of 
dredging volumes for future proposed projects, and limited capacity of 
upland confined disposal facilities (CDFs) in the area.
    The EPA is modifying the existing Mobile ODMDS rather than 
designate a new site off the coast of Mobile for ocean disposal of 
dredged material. The modification of the existing Mobile ODMDS for 
dredged material does not mean that the USACE or the EPA has approved 
the use of the Mobile ODMDS for open water disposal of dredged material 
from any specific project. Before any person can ocean dump dredged 
material at the Mobile ODMDS, the EPA and the USACE must evaluate the 
project according to the ocean dumping regulatory criteria (40 CFR, 
part 227) and the USACE must authorize the disposal. The EPA 
independently evaluates proposed dumping and has the right to restrict 
and/or disapprove of the actual disposal of dredged material if the EPA 
determines that environmental requirements under the MPRSA have not 
been met. This action is supported by an Environmental Assessment, 
which was established in accordance with the National Environmental 
Policy Act.

b. Location and Configuration of the Modified Mobile ODMDS

    The modified ODMDS is in approximately 34 to 57 feet of water and 
is located between 2.0 and 6.0 nautical miles south of Dauphin Island, 
Alabama. The modified ODMDS would expand the existing Mobile ODMDS from 
a size of approximately 4.75 nmi\2\ to approximately 23.8 nmi\2\ in 
size. The location of the modified ODMDS is bounded by the coordinates 
listed below. The coordinates for the site are in North American Datum 
83 (NAD 83):
Modified Mobile ODMDS
(A) 30[deg] 13.0' N, 88[deg] 08.8' W
(B) 30[deg] 09.6' N, 88[deg] 04.8' W
(C) 30[deg] 08.5' N, 88[deg] 05.8' W
(D) 30[deg] 08.5' N, 88[deg] 12.8' W
(E) 30[deg] 12.4' N, 88[deg] 12.8' W
    The modification of the existing ODMDS will allow the EPA to 
adaptively manage the site to maximize its capacity, minimize the 
potential for mounding and associated safety concerns, and minimize the 
potential for any long-term adverse effects to the marine environment.

c. Management and Monitoring of the Site

    The modified ODMDS is expected to receive dredged material from the 
federally authorized navigation project at Mobile Harbor, Alabama, and 
dredged material from other applicants who have obtained a MPRSA permit 
for the ocean disposal of dredged material. All persons using the site 
will be required to follow the Site Management and Monitoring Plan 
(SMMP) for the ODMDS that is specifically developed for the modified 
ODMDS. The SMMP includes management and monitoring measures to ensure 
that dredged materials disposed at the modified ODMDS are suitable for 
disposal in the ocean and that adverse impacts of disposal, if any, are 
addressed to the maximum extent practicable. This includes provisions 
to avoid and minimize potential impacts to artificial reefs and 
cultural resources. The SMMP for the modified ODMDS also addresses 
management of the site to ensure adverse mounding does not occur and 
ensures that disposal events minimize interference with other uses of 
ocean waters near the modified ODMDS. Future transportation to the 
ODMDS and disposal of dredged material at the

[[Page 47037]]

ODMDS will be governed by the currently approved version of the SMMP.

d. MPRSA Criteria

    In evaluating the modified ODMDS, the EPA assessed the site 
according to the criteria set forth in the MPRSA, with emphasis on the 
general and specific regulatory criteria of 40 CFR part 228, to 
determine whether the site designation satisfies those criteria. The 
EPA's Final Environmental Assessment for Modification of the Ocean 
Dredged Material Disposal Site Mobile, Alabama, May 2020 (FEA), 
provides an extensive evaluation of the criteria and other related 
factors for the modification of the existing ODMDS.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    The location of the modified ODMDS was screened in 1982 by the 
USACE as part of their evaluation of the area for selection of a 
location for ocean dumping of dredged material under Section 103 of the 
MPRSA, as there was no EPA-designated ODMDS at the time. That 
evaluation included considerations of potential interference with other 
activities in the marine environment including avoiding areas of 
existing critical fisheries or shellfisheries, regions of heavy 
commercial or recreational navigation, and potential historic 
properties. These evaluations were re-considered from 2002 through to 
the present time, as the modified ODMDS continued to be assessed.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    The modified ODMDS will only be used for disposal of suitable 
dredged material as determined by Section 103 of the MPRSA. Based on 
the USACE and the EPA's sediment testing and evaluation of dredged 
material, disposal is not expected to have any long-term impact on 
water quality. The modified ODMDS is located sufficiently far from 
shore (two to six miles) and fisheries resources to allow temporary 
water quality disturbances caused by ocean disposal of dredged material 
to be reduced to ambient conditions before reaching any environmentally 
sensitive areas.
    (3) This criterion has been removed from the regulations and no 
longer applies.
    (4) The sizes of disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts, 
and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation (40 CFR 228.5(d)).
    The location, size, and configuration of the modified ODMDS will 
provide long-term capacity, while also allowing effective site 
management, site monitoring, and limiting environmental impacts to the 
surrounding area to the greatest extent practicable.
    Based on 25 years of projected new work and maintenance dredging, 
and permitted dredged material disposal needs, it is estimated that the 
modified ODMDS should be approximately 24 nmi\2\ in size to meet the 
anticipated long-term disposal needs of the area. This would provide 
the modified ODMDS with an estimated capacity of approximately 260 
million cubic yards, which is sufficient to manage risk, account for 
future unknown disposal operations from private entities, and provide a 
margin of navigation safety.
    By adding approximately 19 nmi\2\ to the existing Mobile ODMDS, the 
total area of the modified Mobile ODMDS is 23.8 nmi\2\. An ODMDS of 
this size and capacity will provide a long-term ocean disposal option 
for the Mobile Bay area.
    When determining the size of the proposed site, the ability to 
implement effective monitoring and surveillance programs was considered 
to ensure that the environment of the site could be protected, and that 
navigational safety would not be compromised by the mounding of dredged 
material, which could result in adverse wave conditions. A SMMP has 
been developed and will be implemented to determine if disposal at the 
site is significantly affecting adjacent areas and to detect the 
presence of adverse effects. At a minimum, the monitoring program will 
consist of bathymetric surveys, sediment grain size analysis, chemical 
analysis of constituents of concern in the sediments, and a health 
assessment of the benthic community.
    (5) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    Locating the disposal site near the continental shelf is not 
feasible and would be cost prohibitive. Transporting material to and 
performing long-term monitoring of a site located off the continental 
shelf is not economically or operationally feasible.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    The modified ODMDS is in the Gulf of Mexico, between two and six 
miles offshore of Dauphin Island, Alabama. Water depths range from -34 
to -57 feet (10.4 to 17.4 meters) with an overall average depth of -45 
feet (13.7 meters). Sediments consist of sands to clays, with various 
mixtures of sand, silts, and clays. Most areas in the modified ODMDS 
have a higher percentage of silt/clay than sand. There tends to be more 
fine material in the northern portion of the site, and more fine sand 
on the southern portion of the modified ODMDS. There is a shallower 
mound (approximately -18 feet MLLW) located in the southeastern portion 
of the site, where material was historically placed for disposal. There 
are numerous oil and gas wells located throughout the proposed 
expansion area. Disposal shall not occur closer than 1,300 feet to any 
oil or gas rig that may be present within the site boundaries. The FEA 
contains a map of the ODMDS modification.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases (40 
CFR 228.6(a)(2)).
    The modified ODMDS has been selected to avoid the presence of any 
exclusive breeding, spawning, nursery, feeding, or passage areas for 
adult or juvenile phases of living resources.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The center of the modified ODMDS is several miles from any beaches 
or amenity areas. No significant impacts to beaches or amenity areas 
associated with the existing Mobile ODMDS have been detected.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Only dredged material that meets the EPA Ocean Dumping Criteria in 
40 CFR 220-228 and has been deemed suitable can be disposed of in the 
ODMDS. Dredged materials dumped in this area will primarily be silts 
and clays with some sands that originate from Mobile Bay including the 
Federal Channel and

[[Page 47038]]

areas of the Port. Average yearly disposal of dredged material into the 
modified ODMDS is expected to be approximately 2.9 million cubic yards 
of maintenance and new work dredged material. Hopper dredge, barge, and 
scow combinations are the usual vehicles of transport for the dredged 
material, resulting in release of dredged material closer to the bottom 
of the site which reduces resultant turbidity. None of the dredged 
material is packaged in any manner.
    Under section 103 of the MPRSA, the USACE is the federal agency 
that decides whether to issue a permit authorizing the ocean disposal 
of dredged materials. In the case of federal navigation projects 
involving ocean disposal of dredged materials, transportation to and 
disposal in ocean waters for disposal by the USACE is subject to the 
MPRSA, but not to a USACE permit. The USACE relies on the EPA's ocean 
dumping criteria when evaluating permit requests for (and implementing 
federal projects involving) the transportation of dredged material for 
the purpose of dumping it into ocean waters. MPRSA permits and federal 
projects involving ocean dumping of dredged material are subject to the 
EPA's review and concurrence. The EPA may concur with or without 
conditions or decline to concur on the permit or federal project, i.e., 
non-concur. If the EPA concurs with conditions, the final permit or 
federal project authorization must include those conditions. If the EPA 
declines to concur (non-concurs) on an ocean dumping permit for dredged 
material, the USACE cannot issue the permit or authorize the 
transportation to and disposal of dredged material in the ocean 
associated with the federal project.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the modified ODMDS 
to be feasible and readily performed from ocean or regional class 
research vessels. The entire area of the modified ODMDS has been 
surveyed and sampled in 2009 and 2017. The EPA will monitor the site 
for physical, biological, and chemical attributes as well as for 
potential impacts. Bathymetric surveys will be conducted routinely, and 
benthic infauna and epibenthic organisms will be monitored, as 
described in the SMMP for the site.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    Current velocities are greatest at the water's surface due to wind 
and wave action. Intermediate and bottom layer currents are driven by 
thermohaline and tidal circulations. Currents measured at gauge 
stations surrounding the ODMDS are predominantly to the west or 
southwest on the order of 10-30 centimeters per second.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    Previous disposal of dredged material in the existing Mobile ODMDS 
has resulted in temporary increases in suspended sediment 
concentrations during disposal operations, localized mounding within 
the site, burial of benthic organisms within the site, slight changes 
in the abundance and composition of benthic assemblages, and changes in 
the sediment composition from sandy sediments to finer-grained silts. 
Short-term, long-term, and cumulative effects of dredged material 
disposal in the modified ODMDS would be similar to those for the 
previously designated Mobile 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 (40 CFR 
228.6(a)(8)).
    There will be minor, short-term interferences with commercial and 
recreational boat traffic during the transport of dredged material to 
the modified ODMDS. There are several oil and gas extraction platforms 
in the existing and modified Mobile ODMDS. The site has not been 
identified as an area of special scientific importance. There are no 
aquaculture areas near the site. There may be recreational fishing in 
the area. The likelihood of direct interference with these activities 
is low, provided there is close communication and coordination among 
users of the ocean resources. There is one artificial reef site located 
approximately a quarter mile south of the modified ODMDS. The SMMP for 
the modified ODMDS contains provisions for corrective measures if 
impacts to the artificial reef related to dredged material disposal are 
identified.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    Water quality of the existing site is typical of the Gulf of 
Mexico. Water and sediment quality analyses conducted in the vicinity 
of the modified ODMDS and experience with past disposals in the 
previously designated Mobile ODMDS have not identified any adverse 
water quality impacts from ocean disposal of dredged material. The site 
supports benthic and epibenthic fauna characteristic of the shallow 
Gulf of Mexico and are widespread off the Gulf coast.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the modified ODMDS. Disposal of dredged material, as well 
as monitoring, has been ongoing for the past 40 to 50 years. Nuisance 
species have not been found. The dredged material to be disposed of at 
the ODMDS is expected to be from similar locations to those dredged 
previously, therefore it expected that any benthic organisms 
transported to the site would be relatively similar in nature to those 
already there.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    A maritime investigation of this site was conducted in 1982 to 
identify areas of high and low probability of submerged resources. Past 
efforts showed the presence of magnetic anomalies that may be 
indicative of potential resources. Until further analysis is conducted, 
these anomalies should be avoided in the modified Mobile ODMDS.
    The SMMP for the ODMDS contains measures to ensure that resources 
identified in up-to-date maritime investigations are avoided and are 
not adversely affected by dredged material disposal.

III. Environmental Statutory Review--National Environmental Policy Act 
of 1969, as Amended (NEPA); Magnuson-Stevens Fisheries Conservation and 
Management Act (MSA); Marine Mammal Protection Act (MMPA); Coastal Zone 
Management Act (CZMA); Endangered Species Act, as Amended (ESA); 
National Historic Preservation Act, as Amended (NHPA)

a. National Environmental Policy Act

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370, requires Federal agencies to 
prepare an Environmental Impact Statement (EIS) for major federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to EPA designations of ocean disposal sites under 
the MPRSA because the courts have exempted the EPA's

[[Page 47039]]

actions under the MPRSA from the procedural requirements of NEPA 
through the functional equivalence doctrine. The EPA has, by policy, 
determined that the preparation of NEPA documents for certain EPA 
regulatory actions, including actions under the MPRSA, is appropriate. 
The EPA's ``Notice of Policy and Procedures for Voluntary Preparation 
of NEPA Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29, 
1998), sets out both the policy and procedures the EPA uses when 
preparing such environmental review documents.
    A Draft Environmental Assessment (DEA) for the modification of the 
Mobile ODMDS was released for public review and comment for a 35-day 
period on September 26, 2018. The EPA re-noticed the DEA for public 
review and comment for a 34-day period on October 17, 2019. In 
addition, the EPA issued a preliminary Finding of No Significant Impact 
for public review and comment for a 30-day period on June 2, 2020.
    The DEA presented the analysis and alternatives considered for the 
permanent designation of a modified ODMDS offshore Mobile, Alabama, for 
the purpose of providing an environmentally acceptable option for the 
ocean disposal of dredged material. The alternatives included: (1) No 
action/continued use of the previously designated ODMDS; (2) 
modification of the previously designated Mobile ODMDS to encompass a 
larger area capable of meeting the capacity needs during the next 25 
years; (3) modification of the previously designated Mobile ODMDS to 
encompass a much larger area capable of meeting the capacity needs 
during the next 50 years; and (4) designation of a new site. The second 
alternative was presented as the selected alternative in the EA.
    The EPA received comments on the DEA regarding issues that 
included: (1) Potential movement of disposed material impacting nearby 
artificial reefs; (2) consideration of impacts to the giant manta ray, 
a newly listed threatened species; (3) the age of the existing cultural 
resource surveys; and (4) a request for additional opportunity for 
public review and comment. A detailed responsiveness summary is 
included in the appendices in the FEA. In addition, a summary of the 
EPA's consideration of comments received regarding the proposal to 
modify the Mobile ODMDS is included below.
    Following the consideration of comments received, the EPA has 
issued a Finding of No Significant Impact and the FEA. These documents 
are included in the docket for this action and may be accessed from 
http://www.regulations.gov.

b. Magnuson-Stevens Fishery Conservation and Management Act

    The FEA includes a description of the history during the past 18 
years of consultation with the National Marine Fisheries Service (NMFS) 
regarding the assessment of essential fish habitat (EFH), pursuant to 
Section 305(b), 16 U.S.C. 1855(b)(2), of the MSA with respect to the 
Mobile ODMDS. On July 24, 2018, the USACE issued a Draft Integrated 
General Reevaluation Report with Supplemental Environmental Impact 
Statement on the Mobile Harbor Navigation Project, which included an 
assessment of EFH regarding the disposal of dredged material to the 
Mobile ODMDS. On September 7, 2018, NMFS issued a letter to the USACE 
that stated its agreement with the USACE's determination that the 
project will not adversely affect EFH. The EPA notified NMFS by letter 
dated September 25, 2018, of the proposed action to modify the Mobile 
ODMDS and provided the EPA's assessment that this action would not 
likely adversely affect EFH. On May 13, 2020, NMFS notified the EPA by 
email that the required EFH consultation under the MSA has been 
successfully concluded.

c. Coastal Zone Management Act

    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, the EPA has evaluated the proposed site designations for 
consistency with the State of Alabama's approved coastal zone 
management program. On September 25, 2018, the EPA notified the Alabama 
Department of Environmental Management of the proposed modification of 
the Mobile ODMDS and provided them with the EPA's assessment that the 
proposed action was consistent with Alabama's coastal zone management 
program to the maximum extent practicable. On April 10, 2020, ADEM 
notified the EPA by email that the Alabama Coastal Area Management 
Program does not object to the proposal to expand the ODMDS on the 
basis that all placed material is required to meet the EPA's 
environmental criteria and it keeps the mineral resource within the 
system.

d. Endangered Species Act

    The ESA, as amended, 16 U.S.C. 1531 to 1544, requires Federal 
agencies to consult with NMFS and the U.S. Fish and Wildlife Service 
(USFWS) to ensure that any action authorized, funded, or carried out by 
the Federal agency is not likely to jeopardize the continued existence 
of any federally listed endangered or threatened species or result in 
the destruction or adverse modification of any critical habitat. The 
EPA notified NMFS and USFWS respectively by letters dated September 25, 
2018, of the proposed action to modify the Mobile ODMDS and provided 
the EPA's assessment that this action would not likely adversely affect 
federally listed species or their critical habitat.
    In a letter dated October 8, 2018, the USFWS concurred with the 
EPA's determination that the proposed action is not likely to adversely 
affect federally listed species under the jurisdiction of the USFWS. 
The USFWS further stated that no further endangered species 
consultation will be required unless: The proposed action is 
subsequently modified in a manner that causes an effect on listed 
species or their critical habitat; new information reveals that the 
proposed action may affect listed species or their critical habitat in 
a manner or to an extent not previously considered, or a new species is 
listed or critical habitat is designated under the ESA that may be 
affected by the proposed action. As of the date of this action, there 
are no new federally listed species under jurisdiction of the USFWS in 
the project area. There are also no new information or changes to the 
project that may affect species or their critical habitat in a manner 
or extent not previously considered.
    Following the issuance of the EPA's letter dated September 25, 
2018, the EPA learned of additional federally listed species under the 
jurisdiction of NMFS including the giant manta ray (Manta birostris) 
and the Bryde's whale (Balaenoptera edeni brydei). In addition, NMFS is 
in the process of developing a Gulf of Mexico Regional Biological 
Opinion, which is expected to address all federally listed species that 
may be affected by the modification of the Mobile ODMDS. Based on the 
EPA's May 8, 2020 communication with NMFS, the EPA is deferring 
completion of consultation with respect to the modification of the 
Mobile ODMDS pursuant to ESA Section 7(d).

e. National Historic Preservation Act

    The USACE and the EPA initiated consultation with the State of 
Alabama's Historic Preservation Officer (SHPO) on September 25, 2018, 
to address the NHPA, 16 U.S.C. 470 to 470a-2, which requires Federal 
agencies to consider the effect of their actions on districts, sites, 
buildings, structures, or objects, included in, or eligible for 
inclusion in the National Register of Historic Places. In a letter 
dated October 13, 2018, the Alabama Historical Commission (AHC)

[[Page 47040]]

recommended more up to date maritime surveys in the proposed action 
area.
    During the public comment period for the draft rule to modify the 
Mobile ODMDS, the EPA received an email from the Choctaw Nation of 
Oklahoma (CNO) dated July 30, 2019 that notified the EPA that the 
proposed modification of the Mobile ODMDS lies within the CNO's area of 
historic interest and that unidentified cultural resources may be 
located in this area. The CNO also issued an email to the EPA dated 
November 18, 2019 that requested that they be a consulting party on the 
modification to the ODMDS pursuant to the NHPA. Following discussions 
with the AHC and the CNO, the EPA issued letters to the AHC and CNO 
dated January 24, 2020 that presented language that set forth 
management provisions to be included in the SMMP to ensure protection 
of historic and cultural archaeological resources and address the 
interests expressed by the AHC and the CNO. The EPA specifically 
proposed language in the SMMP that references a Programmatic Agreement 
between the USACE and the AHC regarding the Mobile Harbor General 
Reevaluation Study (Programmatic Agreement), which was signed on July 
26, 2019, and sets forth surveys and other activities that would need 
to be conducted prior to the disposal of dredged material to unused 
portions of the expanded Mobile ODMDS. On February 25, 2020, the AHC 
responded by letter and informed the EPA of its agreement with the 
proposed language. During subsequent communications with the EPA 
through email and teleconference on February 24, and March 23, 2020, 
the CNO stated that they had no objections to the proposed language and 
had no further comments on the EPA's proposed modification of the 
Mobile ODMDS.

IV. Responses to Comments Received on the Proposed Rule

    On June 25, 2019, the EPA published a proposed rule (docket number 
EPA-R04-OW-2016-0356) to modify the site for public review and comment 
for a 45-day period. During that time, the EPA received comments from 
government agencies including the CNO, the National Oceanic and 
Atmospheric Administration (NOAA), and the U.S. Department of Interior 
(DOI). The EPA also received comments from two members of the public 
during this time. The specific comments received on the proposed rule 
and the EPA's responses to such comments are included in the 
Responsiveness Summary of Appendix C of the FEA, which may be accessed 
at http://www.regulations.gov. Below is a summary of the EPA's 
consideration of the comments received regarding the proposed rule.
    The comments from the CNO and the EPA's consideration of such 
comments are described above in Section III.e.
    NOAA issued a comment from its Marine Chart Division requesting 
clarity regarding the boundaries of the modified ODMDS and the 
boundaries that are currently defined on marine charts. The boundaries 
of the modified ODMDS were established to ensure protection of human 
health and the marine environment pursuant to the requirements of 
MPRSA. The boundaries are set forth by the coordinates of this 
regulation and are also presented in tables ES-3 and ES-4 of the FEA.
    The DOI recommended that the modified ODMDS be re-surveyed prior to 
the deposition of dredged material using more modern equipment than 
what was available nearly 40 years ago. The SMMP for the Mobile ODMDS 
includes language that references a Programmatic Agreement that 
specifies work, including modern surveys, to be conducted prior to the 
disposal of dredged material for unused portions of the ODMDS.
    The comments received from members of the public included concerns 
about the adequacy of the opportunity to provide comments on the DEA. 
The EPA subsequently reopened the public comment period for the DEA for 
a 34-day period on October 17, 2019. The public comments also 
referenced the DEA and expressed concerns about the description of the 
respective roles of the EPA and the USACE regarding the modification of 
the Mobile ODMDS. The FEA includes updated language from the language 
included in the DEA to ensure clarity regarding the responsibilities of 
the EPA under the MPRSA, including coordination with the USACE, with 
respect to the modification of the Mobile ODMDS. The public also 
provided recommended revisions to some of the language in the DEA, 
which are addressed in the FEA as described in more detail in the 
responsiveness summary in Appendix C of the FEA.
    A member of the public requested that the rule be clarified to 
define the changes that would be expected to occur within the modified 
ODMDS that demonstrate that the capacity has been exhausted. The member 
of the public further requested that the rule explain how the USACE 
would be prevented from exceeding this capacity. The exhaustion of the 
capacity of the ODMDS will ultimately be evaluated based on monitoring 
data obtained from the ODMDS. The requirements for monitoring and 
management of the ODMDS, including the monitoring of changes in 
bathymetry, are set forth in the SMMP. The EPA and the USACE will 
utilize the monitoring data collected as the basis for understanding 
the changes in available capacity over time for the Mobile ODMDS. In 
addition, no material can be disposed of in the ODMDS without the EPA's 
review and concurrence in accordance with MPRSA Section 103. The EPA 
will consider all available data and information, including monitoring 
data from the site, prior to taking management action pursuant to MPRSA 
for the Mobile ODMDS.
    A member of the public stated that the rule and the DEA should be 
revised to reflect a modification to the Mobile ODMDS that would 
accommodate the disposal needs during the next 50 years, instead of 25 
years. A Memorandum of Understanding between the USACE South Atlantic 
Division and EPA Region 4 specifically identifies a period of 10 to 25 
years for considering the long-term use for designation or modification 
of an ODMDS. Basing the size of an ODMDS on a longer planning period, 
such as 50 years, would significantly increase the necessary resources 
to manage and monitor the ODMDS. The decision to utilize a 25-year time 
frame for disposal was made by the USACE and the EPA in consideration 
of the agreed-upon provisions of the 2017 MOU. If it is found that 
material is accumulating in the site to a degree at which there are 
concerns (biological, chemical, physical), modeling will be undertaken 
to reassess the capacity as specified in the SMMP.
    A member of the public expressed that the rule fails to address 
some key provisions to protect the water from contamination and illegal 
dumping. In accordance with the MPRSA and the criteria set forth by its 
implementing regulations, as described in Section II above, 
contaminated material cannot not be disposed in the Mobile ODMDS. Any 
unauthorized dumping of material to the Mobile ODMDS is not allowed by 
the rule that is being issued today and is subject to enforcement for 
illegal dumping.

V. Statutory and Executive Order Reviews

    This rule modifies the Mobile ODMDS pursuant to Section 102 of the 
MPRSA. This action complies with applicable executive orders and 
statutory provisions as follows:

[[Page 47041]]

a. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    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 Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

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. 
Burden is defined at 5 CFR 1320.3(b). This site designation, does not 
require persons to obtain, maintain, retain, report, or publicly 
disclose information to or for a Federal agency.

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. After considering the economic impacts of this 
rule, the EPA certifies 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. In the spirit of Executive Order 13132, and consistent 
with the EPA policy to promote communications between the EPA and State 
and local governments, the EPA specifically solicited comments on this 
action from State and local officials.

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

    As described in Section III.e. above, the CNO notified the EPA that 
the proposed modification of the Mobile ODMDS lies within the CNO's 
area of historic interest and requested to be a consulting party on the 
modification to the ODMDS pursuant to the NHPA. The EPA conducted a 
teleconference with the CNO on January 13, 2020 and discussed the CNO's 
interests regarding the EPA's proposed action. The EPA issued a letter 
to the CNO on January 24, 2020, that presented language that set forth 
management provisions to be included in the SMMP to ensure protection 
of historic and cultural archaeological resources and address the 
interests expressed by the CNO. During subsequent communications with 
the EPA through email and teleconference, the CNO stated that they had 
no objections to the proposed language and had no further comments on 
the EPA's proposed modification of the Mobile ODMDS.

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

    The EPA interprets Executive Order 13045 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. The action 
concerns the modification of the existing Mobile ODMDS and only has the 
effect of providing a designated location for ocean disposal of dredged 
material pursuant to Section 102 (c) of the MPRSA.

h. Executive Order 13211: Actions Concerning Regulations 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.

i. National Technology Transfer and 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), 
directs the 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 bodies. The NTTAA directs the EPA to provide 
Congress, through Office of Management and Budget, explanations when 
the Agency decides not to use available and applicable voluntary 
consensus standards. This action includes environmental monitoring and 
measurement as described in the SMMP. The EPA will not require the use 
of specific, prescribed analytic methods for monitoring and managing 
the modified ODMDS. The Agency plans to allow the use of any method, 
whether it constitutes a voluntary consensus standard or not, that 
meets the monitoring and measurement criteria discussed in the SMMP.

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,

[[Page 47042]]

policies, and activities on minority populations and low-income 
populations in the United States. The 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. The EPA has assessed the overall protectiveness of 
modifying the existing Mobile ODMDS against the criteria established 
pursuant to the MPRSA to ensure that any adverse impact to the 
environment will be mitigated to the greatest extent practicable.

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, as 
amended, 33 U.S.C. 1401, 1411, 1412.

    Dated: July 17, 2020.
Mary Walker,
Regional Administrator, Region 4.

    For the reasons set out in the preamble, the EPA amends chapter I, 
title 40 of the Code of Federal Register 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 revising paragraphs (h)(14)(i) through 
(iii) and (vi) to read as follows:


Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (14) * * *
    (i) Location: Corner Coordinates (NAD 1983) 30[deg] 13.0' N, 
88[deg] 08.8' W; 30[deg] 09.6' N, 88[deg] 04.8' W; 30[deg] 08.5' N, 
88[deg] 05.8' W; 30[deg] 08.5' N, 88[deg] 12.8' W; 30[deg] 12.4' N, 
88[deg] 12.8' W.
    (ii) Size: Approximately 23.8 square nautical miles in size.
    (iii) Depth: Ranges from 34 to 57 feet (10.4 to 17.4 meters).
* * * * *
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material from the Mobile, Alabama area;
    (B) Disposal shall be limited to dredged material determined to be 
suitable for ocean disposal according to 40 CFR 220-228;
    (C) Transportation and Disposal shall be managed by the 
restrictions and requirements contained in the Site Management and 
Monitoring Plan (SMMP).;
    (D) Monitoring of the site also shall be governed by the currently 
approved SMMP.
* * * * *
[FR Doc. 2020-15963 Filed 8-3-20; 8:45 am]
BILLING CODE 6560-50-P


