
[Federal Register Volume 78, Number 190 (Tuesday, October 1, 2013)]
[Rules and Regulations]
[Pages 60218-60220]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23859]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0196]
RIN 1625-AA00


Safety Zone; Old Mormon Slough, Stockton, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone at: McCormick & 
Baxter superfund site, Old Mormon Slough, Stockton, CA. This safety 
zone supports ongoing efforts by the Environmental Protection Agency 
(EPA) to decontaminate soil, groundwater, and sediment in Old Mormon 
Slough and the surrounding basin. This safety zone restricts vessels 
from entering Old Mormon Slough and disturbing the existing sediment 
cap needed for site decontamination. This safety zone reduces human 
health and environmental risks associated with clean up efforts at 
McCormick & Baxter superfund site.

DATES: This rule is effective October 31, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0196]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Junior Grade Blake Morris, Waterways 
Management Division, U.S. Coast Guard; telephone 510-437-3801, email 
Blake.J.Morris@uscg.mil. If you have questions on viewing or submitting 
material to the docket, call Barbara Hairston, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

A. Regulatory History and Information

    On July 17, 2013, we published a Notice of Proposed Rulemaking 
(NPRM) entitled Safety Zones: Old Mormon Slough, Stockton, CA, in the 
Federal Register (76 FR 17102). We received no comments on the NPRM, or 
a request for public meeting. A public meeting was not held.

B. Basis and Purpose

    The Coast Guard is conducting this rulemaking under the authority 
of 33 U.S.C. 1231.
    The purpose of this rule is to establish a safety zone in Old 
Mormon Slough to further the efforts of the EPA to rehabilitate soil, 
sediment, and ground water from contaminates of the McCormick & Baxter 
Creosoting Company. The McCormick & Baxter Creosoting Co. site is a 29-
acre former wood-preserving facility located in an industrial area near 
the Port of Stockton. Old Mormon Slough, which is connected to the 
Stockton Deepwater Channel, borders the site on the north. Except for 
an 8-acre portion of the site owned by Southern Pacific Railroad 
Company, McCormick & Baxter owns the entire property. From 1942 to 
1990, McCormick & Baxter treated utility poles and railroad ties with 
creosote, pentachlorophenol (PCP), and compounds of arsenic, chromium 
and copper. Wood treating chemicals were stored in tanks, and oily 
waste generated by the wood-treatment process was stored in unlined 
ponds and concrete tanks on the site. The site came to the attention of 
state agencies in 1977 when a fish kill in New Mormon Slough and the 
Stockton Deepwater Channel was attributed to a release of PCP-
contaminated storm water runoff from the McCormick & Baxter facility. 
In 1978, McCormick & Baxter constructed a perimeter dike to prevent 
storm water runoff from the site and installed two storm water 
collection ponds. The unlined oily waste ponds were closed in 1981. 
Sampling has shown that soils throughout the site and groundwater in 
the shallow aquifer beneath the site are contaminated with PCP, various 
constituents of creosote, dioxin (a contaminant in industrial-grade 
PCP) and metals. Soil contamination extends to greater than 40 feet 
below ground surface (BGS) in the central processing area of the site. 
Site investigations indicate that the shallow aquifer (0-200 ft BGS) is 
connected with the deeper aquifer, which is a drinking water source. 
However, no drinking water supplies are currently threatened by site-
related contamination. Approximately 105,000 people live and work 
within 4 miles of the site. Sediment in Old Mormon Slough adjacent to 
the site is also contaminated, primarily with polycyclic aromatic 
hydrocarbons (PAHs) and dioxin. Site-related contaminants have been 
detected in fish caught in the vicinity of the site. People fish in the 
Stockton Channel and in Old Mormon Slough, although the McCormick & 
Baxter site is fenced and posted with warning signs.
    Previous testing conducted by the EPA found soils and groundwater 
were contaminated with PCP, dioxin, PAHs, which are constituents of 
creosote, arsenic, chromium, and copper. In addition, non-aqueous phase 
liquids (NAPLs) are widespread beneath the site. Sediment in Old Mormon 
Slough adjacent to the site is also contaminated, primarily with PAHs 
and dioxin. Individuals who accidentally ingest or

[[Page 60219]]

come in direct contact with contaminated soil, sediment or groundwater 
could be at risk. Drinking water from the deep aquifer has not been 
affected by any contaminants from the McCormick & Baxter site. Oily 
seeps from the former oily waste ponds into Old Mormon Slough occurred 
in the past, although the seeps are now controlled. Site-related 
contaminants have been found in locally-caught fish, which may be 
consumed by nearby fishermen and their families. Sediment contamination 
also poses an environmental threat to aquatic organisms in the vicinity 
of the site.
    The EPA is actively making efforts to control human exposure to 
contaminates via direct contact or ingestion in Old Mormon Slough as 
well as protect the decontamination process. The installation of storm 
water collection ponds and perimeter dike, site security improvements, 
chemical and sludge disposal, demolition and disposal of processing 
equipment and site structures, construction of a sheet piling wall 
along Old Mormon Slough, excavation and backfilling at the oily waste 
pond area, installation of a cap over the most heavily contaminated 
central portion of the site, and installation of a sand cap in Old 
Mormon Slough have reduced threats to public health and the environment 
from these areas of the site.

C. Discussion of Comments, Changes and the Final Rule

    The Coast Guard received no comments or request for a public 
meeting after publishing the NPRM for this rule. Therefore, no changes 
have been made to the regulatory text of this rule.
    The Coast Guard is amending 33 CFR part 165 to establish a safety 
zone in Old Mormon Slough to help effect the rehabilitation process at 
the McCormick & Baxter superfund site. This amendment is necessary to 
prevent pleasure craft from disturbing the sediment cap in Old Mormon 
Slough. The EPA had previously established a log boom at the waterway 
entrance. However, tidal influences and heavy weather, at times, caused 
the log boom to shift and allow vessels unrestricted access. It is 
imperative for proper rehabilitation that control measures beyond 
physical are implemented to restrict waterside interaction and allow 
contaminates to dissipate.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. We expect the economic 
impact of this rule does not rise to the level of necessitating a full 
Regulatory Evaluation.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard received no comments either from the public or 
the Small Business Administration on this rule. The Coast Guard 
certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities.
    (1) This rule would affect the following entities, some of which 
may be small entities: The owners or operators of vessels engaged in 
recreational activities intending to transit, anchor or fish in the Old 
Mormon Slough.
    (2) This safety zone would not have a significant economic impact 
on a substantial number of small entities because it is limited to a 
narrowly tailored geographic area. There has been no indication that 
small entities currently have a significant interest in this site.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

4. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and

[[Page 60220]]

Interference with Constitutionally Protected Property Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule involves the protection of the sediment cap and 
ongoing efforts by the EPA to reduce human health risks. This rule is 
categorically excluded under section 2.B.2, figure 2-1, paragraph 
(34)(g) of Figure 2-1 of the Commandant Instruction. An environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination are available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

    Navigation (water) and Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--SAFETY ZONES

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.1201 to read as follows:


Sec.  165.1201  Safety Zone; Old Mormon Slough, Stockton California.

    (a) General. This safety zone is established to protect 
environmental rehabilitation efforts and prevent vessels from 
disturbing the sediment cap at Old Mormon Slough.
    (b) Regulation. All vessels and personnel not associated with the 
EPA are prohibited from entering into and transiting Old Mormon Slough. 
Old Mormon Slough is defined as all waters Eastward from the connection 
of coordinates 37[deg]57'02.13'' North, 121[deg]18'49.55'' West and 
37[deg]57'01.11'' North, 121[deg]18'46.75'' West (NAD 83).
    (c) Each person in a safety zone who has notice of a lawful order 
or direction shall obey the order or direction of the Captain of the 
Port (COTP) or District Commander issued to carry out the purposes of 
this subpart.
    (d) The Coast Guard may be assisted in enforcing this rule by other 
Federal, state, or local agencies.

    Dated: September 10, 2013.
K.L. Schultz,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 2013-23859 Filed 9-30-13; 8:45 am]
BILLING CODE 9110-04-P


