[Federal Register Volume 84, Number 122 (Tuesday, June 25, 2019)]
[Proposed Rules]
[Pages 29828-29834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13396]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2016-0354; FRL-9995-38-Region 4]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a modification of 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, as amended (MPRSA). The 
primary purpose for the 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 an MPRSA 
permit for such disposal. The modified site will be subject to 
monitoring and management to ensure continued protection of the marine 
environment.

DATES: Written comments must be received on or before August 9, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2019-xxxx, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments and accessing the docket and materials related to 
this proposed rule.
     Email: weiss.lena@epa.gov.
     Mail: Lena Weiss, U.S. Environmental Protection Agency, 
Region 4, Water Division, Oceans and Estuarine Management Section, 61 
Forsyth Street, Atlanta, Georgia 30303.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OW-
2019-xxxx. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov website is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses. For additional information about the 
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: Publicly available docket materials are available either 
electronically at www.regulations.gov or in hard copy during normal 
business hours from the regional library at the EPA, Region 4 Library, 
9th Floor, 61 Forsyth Street, Atlanta, Georgia 30303. For access to the 
documents at the Region 4 Library, contact the Region 4 Library 
Reference Desk at (404) 562-8190, between the hours of 9:00 a.m. to 
12:00 p.m., and between the hours of 1:00 p.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Lena Weiss, U.S. Environmental 
Protection Agency, Region 4, Water Division, Oceans and Estuarine 
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone 
number (404) 562-9228; email: weiss.lena@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might

[[Page 29829]]

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 
proposed 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
------------------------------------------------------------------------
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

    There is currently one designated ODMDS off the coast of Mobile, 
Alabama. The existing Mobile ODMDS is located between two and six miles 
south of Dauphin Island in the Gulf of Mexico. It is currently 4.75 
square nautical miles (nmi\2\) in size. The Mobile ODMDS received 
interim site designation status in 1977 and final designation in 1987.
    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 current 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.
    EPA today is proposing to modify, or expand, the existing Mobile 
ODMDS rather than designate a new site off the coast of Mobile for 
ocean disposal of dredged material. The proposed modification of the 
existing Mobile ODMDS for dredged material does not mean that the USACE 
or the EPA has approved the use of the existing Mobile ODMDS or a 
modified Mobile ODMDS for open water disposal of dredged material from 
any specific project. Before any person can ocean dump dredged material 
at the existing Mobile ODMDS or a modified Mobile ODMDS, the EPA and 
the USACE must evaluate the project according to the ocean dumping 
regulatory criteria (40 CFR part 227) and 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 a Draft 
Environmental Assessment, which was provided for public notice and 
comment in September of 2018.

b. Location and Configuration of the Proposed Modified Mobile ODMDS

    This action proposes the modification of the existing Mobile ODMDS. 
The proposed 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 proposed modified ODMDS would expand the existing 
Mobile ODMDS from a size of approximately 4 nmi\2\ to approximately 
23.8 nmi\2\ in size. The location of the proposed modified ODMDS is 
bounded by the coordinates listed below. The proposed coordinates for 
the site are in North American Datum 83 (NAD 83):
Proposed 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 proposed 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 proposed 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 
permit for the disposal of dredged material at the proposed modified 
ODMDS. 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 proposed modified ODMDS. A draft SMMP 
for the proposed modified ODMDS was been publicly reviewed and will be 
finalized by the EPA Region 4 and the USACE Mobile District prior to a 
final decision on this rule. The SMMP includes management and 
monitoring requirements to ensure that dredged materials disposed at 
the proposed 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 proposed 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 
proposed modified ODMDS.

d. MPRSA Criteria

    In evaluating the proposed modified ODMDS, the EPA assessed the 
site according to the criteria of the MPRSA, with emphasis on the 
general and specific regulatory criteria of 40 CFR part 228, to 
determine whether the proposed site designation satisfies those 
criteria. The EPA's Draft Environmental Assessment for Modification of 
the Ocean Dredged Material Disposal Site Mobile, Alabama, September 
2018 (DEA), 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 proposed 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 
MPRSA, as there was no

[[Page 29830]]

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, and regions of heavy commercial or 
recreational navigation. These evaluations were re-considered from 2002 
through to the present time, as the proposed 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 proposed ODMDS modification area will be used for disposal of 
suitable dredged material as determined by Section 103 of the MPRSA. 
Based on the USACE and EPA sediment testing and evaluation of dredged 
maintenance material and proposed new work material, disposal is not 
expected to have any long-term impact on water quality. The existing 
Mobile ODMDS and proposed modified ODMDS are located sufficiently far 
from shore (two to six miles) and fisheries resources to allow 
temporary water quality disturbances caused by placement of dredged 
material to be reduced to ambient conditions before reaching any 
environmentally sensitive areas.
    (3) If at any time during or after disposal site evaluation 
studies, it is determined that existing disposal sites presently 
approved on an interim basis for ocean dumping do not meet the criteria 
for site selection set forth in Sections 228.5 through 228.6, the use 
of such sites will be terminated as soon as suitable alternate disposal 
sites can be designated (40 CFR 228.5 (c)).
    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 proposed modified 
ODMDS provides long-term capacity, while also permitting 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 
proposed 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 proposed 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 provides a margin of navigation safety.
    By adding approximately 19 nmi\2\ to the existing Mobile ODMDS, the 
total area of the proposed modified Mobile ODMDS would be 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 is 
being 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 proposed 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 
proposed modified ODMDS have a higher percentage of silt/clay than 
sand. There tends to be slightly more fine material in the northern 
portion of the site, and more fine sand on the southern portion of the 
proposed modified ODMDS. There is a shallower mound (approximately -18 
feet MLLW) located in the southeastern portion of the site, where 
material has historically been placed for disposal. There are numerous 
oil and gas wells located throughout the proposed expansion area. The 
September 2018 DEA contains a map of the proposed 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 proposed 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 proposed 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 suitable dredged material that meets the EPA Ocean Dumping 
Criteria in 40 CFR 220-229 and receives a permit or is otherwise 
authorized for dumping by USACE will be disposed in the proposed 
modified ODMDS. Dredged materials dumped in this area will be primarily 
silts and clays with some sands that originate from the Federal Mobile 
Harbor navigation project. Average yearly disposal of dredged material 
into the proposed 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. None of the material is 
packaged in any manner.
    Under section 103 of the MPRSA, 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

[[Page 29831]]

disposal of dredged materials, USACE is subject to MPRSA, but does not 
require a USACE permit. USACE relies on 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 EPA review 
and concurrence. EPA may concur with or without conditions or decline 
to concur on the permit, i.e. non-concur. If EPA concurs with 
conditions, the final permit must include those conditions. If EPA 
declines to concur (non-concurs) on an ocean dumping permit for dredged 
material, the USACE cannot issue the permit.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the proposed 
modified ODMDS to be feasible and readily performed from ocean or 
regional class research vessels. The entire area of the proposed 
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 (cm/s).
    (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 proposed modified ODMDS would be similar to those for 
the existing 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 proposed modified ODMDS. There are several oil and gas extraction 
platforms in both the proposed and existing 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 
proposed modified ODMDS. The SMMP for the proposed modified ODMDS 
contains provisions for corrective measures if impacts to the 
artificial reef related to dredged material disposal are identified. 
Additionally, modification of the ODMDS will allow for disposal to 
occur farther away from the artificial reef than the currently-sized 
site allows.
    (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 proposed modified ODMDS and experience with past disposals in 
the existing 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 of 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 proposed 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 proposed 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. NEPA

    The EPA's primary voluntary NEPA document for expanding the 
existing Mobile ODMDS is the Draft Environmental Assessment for 
Modification of the Mobile ODMDS, Mobile, Alabama, September 2018 
(DEA), prepared by the EPA in cooperation with the USACE. Anyone 
desiring a copy of the DEA may obtain one from the addresses given 
above. This document was released for public review and comment on 
September 26, 2018. The public comment period on the Draft 
Environmental Assessment (DEA) closed on October 29, 2018.
    The EPA received four comment letters on the DEA. There were three 
main concerns expressed in those letters: (1) Potential movement of 
disposed material impacting nearby artificial reefs; (2) consideration 
of impacts to the giant manta ray, a newly listed threatened species; 
and (3) the age of the existing cultural resource surveys. No 
objections to the proposed modification of the Mobile ODMDS were 
received. The EPA and USACE responded to all comments and they will be 
provided in the Final Environmental Assessment (FEA) for this proposed 
action. The DEA and its Appendices provide the threshold

[[Page 29832]]

environmental review for modification of the ODMDS. The information 
from the DEA is used above, in the discussion of the ocean dumping 
criteria, and can be provided upon written request, using the contact 
information provided in this document.
    The proposed action discussed in the DEA is the permanent 
designation of a modified ODMDS offshore Mobile, Alabama. The purpose 
of the proposed action is to provide an environmentally acceptable 
option for the ocean disposal of dredged material. The need for the 
proposed modified ODMDS is based on a demonstrated USACE need for ocean 
disposal of dredged material from the Mobile Harbor Federal Navigation 
Project, including the potential for deepening and widening portions of 
the Project. The need for ocean disposal for these and other projects, 
and the suitability of the material for ocean disposal, will be 
determined on a case-by-case basis as part of the USACE process for 
reviewing ocean disposal for private/Federal actions and a public 
review process for its own actions to ocean dump dredged material from 
Federal Projects. These permit/authorization evaluations will include 
evaluation of disposal alternatives.
    The DEA discusses the need for the proposed modified ODMDS and 
examines ocean disposal site alternatives to the proposed actions. The 
need for expanding the existing Mobile ODMDS is based on future 
capacity modeling, historical dredging volumes, estimated dredging 
volumes for proposed projects, and limited capacity of upland disposal 
facilities in the area.
    The following ocean disposal alternatives were considered in the 
DEA:
    No Action Alternative.
    The No Action Alternative is defined as not modifying the size of 
the existing Mobile ODMDS. Implementation of this alternative would not 
address the need for an adequately sized ocean dumpsite to accommodate 
Federal channel dredging projections, and/or any future private needs 
for ocean disposal. The existing Mobile ODMDS is too small and only 
provides disposal capacity for up to five years. It is not large enough 
to meet the existing and projected disposal needs for proposed Federal 
new work and O&M projects. As a result, the No Action Alternative does 
not meet the proposed action's purpose and need. However, it was 
evaluated in the DEA as a basis to compare the effects of the other 
alternatives considered.
    Alternative 2: Modification of the existing Mobile ODMDS to 
encompass a larger area capable of meeting the capacity needs of the 
next 25 years (Preferred Alternative).
    Modification of the existing Mobile ODMDS to encompass a larger 
area capable of meeting the capacity needs of the next 25 years 
(approximately 25 nmi\2\) is the preferred alternative and considered 
the most viable option. A detailed justification for this preferred 
alternative is included in Section 1.3 Purpose and Need for the 
Proposed Action in the DEA. The existing Mobile ODMDS is relatively 
small and has a limited capacity of approximately five years if 
continued use occurs. Modifying the existing Mobile ODMDS to increase 
capacity for the next 25 years would sustain the disposal needs for the 
federally authorized Mobile Harbor navigation project (including 
proposed deepening and widening), along with providing a disposal 
option for private interests. It is the most economic and 
environmentally feasible option.
    Alternative 3: Modification of the existing Mobile ODMDS to 
encompass a much larger area capable of meeting the capacity needs of 
the next 50 years (approximately 46 nmi\2\).
    Modification of the existing Mobile ODMDS to encompass a much 
larger area capable of meeting the capacity needs of the next 50 years 
was considered as the originally preferable alternative for this 
proposed modification. As such, the May 2010 Final Report: Mobile ODMDS 
Designation Study, Mobile AL was conducted based upon this larger site. 
Although designating the larger area as a modified ODMDS would provide 
more than adequate site capacity, the overly large-sized ODMDS would 
far exceed the actual projected need for a 25-year project life. With 
the projections set forth in Section 1.3 Purpose and Need for the 
Proposed Action of the DEA, a site more adequately sized was selected 
as the preferred alternative (Alternative 2).
    Alternative 4: Designation of a new site further from the areas 
where the Federal navigational dredging will occur.
    This alternative would involve designation of a new site further 
south (away from shore) than the existing Mobile ODMDS. This new site 
(referred to as the Mobile-South site) was previously considered by the 
USACE in the mid-1980s under section 103 of the MPRSA. Under section 
103 of the MPRSA, the USACE, in consultation with EPA, can select an 
``alternative'' site for dredged material disposal for short-term use 
in the cases where it is not feasible to use a designated ocean 
disposal site. EPA must concur on use of ``alternative'' ocean sites 
selected by USACE for the disposal of dredged material. Disposal at a 
USACE-selected ``alternative'' site shall be limited to a period not 
greater than five years unless the site is subsequently designated by 
EPA pursuant to section 102 of the MPRSA. This site was never used for 
the disposal of dredged material. Primary concerns with the use of the 
Mobile South site in the 1980s were safety, logistics, and additional 
cost. These concerns still exist today. The sailing path for a hopper 
or scow from Mobile Harbor to the Mobile-South site would require 
traversing through two different Safety Fairways, one in a parallel 
direction and the other at a perpendicular angle to the Federal 
channel. Due to large vessel passing restrictions in the Mobile Ship 
Channel, typically there are at least 12 deep draft ships holding 
position in the Safety Fairway awaiting their turn to enter Mobile 
Harbor. Using the Mobile-South site would require constant coordination 
and logistical planning given the high volume of daily loads going out 
to the site, in addition to the added safety concerns when towing scows 
on long lines in rough seas through numerous anchored deep draft 
vessels.
    The additional sail time added using the Mobile South site is 
estimated to be approximately 25% to 30% greater, which, under the 
current method of rental contracts, represents $2,000,000 to $2,500,000 
per contract (or $4,000,000 to $5,000,000 annually). Therefore, 
designation of a new site farther from shore was not proposed as a 
preferred alternative.

b. MSA

    The USACE, in conjunction with EPA, submitted an essential fish 
habitat (EFH) assessment, pursuant to Section 305(b), 16 U.S.C. 
1855(b)(2), of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 
1801 to 1891d, to the National Marine Fisheries Service (NMFS) on 
December 19, 2002. The original assessment considered the entire 
Mobile-North (46 nmi\2\) site. The USACE determined that the 
modification of the existing Mobile ODMDS will not significantly affect 
managed species or EFH. In a letter dated January 17, 2003, NMFS 
responded that no EFH conservation recommendations were required for 
the proposed action. In an email dated March 17, 2016, USACE contacted 
NMFS, inquiring if the current proposed project (approximately 24 
nmi\2\ ODMDS) was still consistent with the initial consultation. NMFS 
responded that they believed that no further consultation for the 
project was

[[Page 29833]]

required. The EPA notified NMFS of the publication of the DEA by letter 
on September 25, 2018 and received no further communication regarding 
the proposed action.

c. CZMA

    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 (the State) approved coastal 
zone management program. On behalf of the EPA, the USACE, Mobile 
District determined that the proposed action is consistent with the 
Alabama Coastal Management Program to the maximum extent practicable. 
Alabama Department of Environmental Management (ADEM) issued Coastal 
Zone Consistency for the Mobile Harbor Federal Navigation Project on 
March 9, 2017, which included the modification of the existing Mobile 
ODMDS. The EPA notified the ADEM of the publication of the DEA by 
public notice and by letter on September 25, 2018 and received no 
further communication regarding the proposed action.

d. ESA

    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 endangered species or threatened species or result in the 
destruction or adverse modification of any critical habitat. The EPA 
assessed the potential effects of modifying the Mobile ODMDS on aquatic 
and wildlife species and submitted the DEA to the NMFS and USFWS on 
September 25, 2018. The EPA concluded that the proposed project would 
not adversely affect any threatened or endangered species, nor would it 
adversely modify any designated 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 listed endangered 
or threatened species under the jurisdiction of the USFWS. In an email 
dated November 26, 2018, NMFS informed the EPA that a consultation for 
the giant manta ray (Manta birostris) was needed. The EPA concluded 
that the proposed action may affect but was not likely to adversely 
affect the species, added that evaluation and determination to the EA, 
and is working with NMFS to finalize the consultation. Consultation 
with NMFS will be completed prior to final rule-making or any final 
NEPA decision.

e. NHPA

    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 (NRHP). In a 
letter dated October 13, 2018, the Alabama Historical Commission (AHC) 
recommended more up to date maritime surveys in the proposed action 
area. The EPA added additional management provisions intended to be 
protective of potential cultural resources into the EA and SMMP, 
including phased use of the proposed ODMDS to avoid areas previously 
unimpacted by dredged material disposal, and is working with the AHC to 
finalize NHPA consultation. Any requirements to protect cultural 
resources will be concluded based upon additional consultation with the 
SHPO and will be incorporated into project commitments prior to final 
rulemaking or any final NEPA decision.

IV. Statutory and Executive Order Reviews

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

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

    This proposed 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 proposed 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. The EPA determined that this proposed action 
will not have a significant economic impact on small entities because 
the proposed rule will only have the effect of regulating the location 
of site to be used for the disposal of dredged material in ocean 
waters. After considering the economic impacts of this proposed rule, 
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 proposed 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 proposed 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

[[Page 29834]]

promote communications between the EPA and State and local governments, 
the EPA specifically solicited comments on this proposed action from 
State and local officials.

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 because the modification of the 
existing Mobile ODMDS will not have a direct effect on Indian Tribes, 
on the relationship between the Federal government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian Tribes. Thus, Executive Order 13175 does 
not apply to this action. The EPA specifically solicits additional 
comments on this proposed action from tribal officials.

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 proposed action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. The 
proposed 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. 
However, the EPA welcomes comments on this proposed action related to 
this Executive Order.

h. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed 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. However, we welcome comments on this proposed action related to 
this Executive Order.

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 proposed action includes environmental 
monitoring and measurement as described in the EPA's proposed SMMP. The 
EPA will not require the use of specific, prescribed analytic methods 
for monitoring and managing the proposed 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. The EPA welcomes comments 
on this aspect of the proposed rulemaking and, specifically, invites 
the public to identify potentially-applicable voluntary consensus 
standards and to explain why such standards should be used in this 
proposed action.

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

    Executive Order 12898 (59 FR 7629) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The EPA determined that this proposed 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. The 
EPA welcomes comments on this proposed action related to this Executive 
Order.

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: June 7, 2019.
Mary S. Walker,
Regional Administrator, Region 4.

    For the reasons set out in the preamble, The EPA proposes to amend 
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 approximately 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) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (D) Monitoring, as specified in the currently-approved SMMP, is 
required.
* * * * *
[FR Doc. 2019-13396 Filed 6-24-19; 8:45 am]
BILLING CODE 6560-50-P


