Water pollution control: Ocean dumping; site designations— San Francisco Deep Ocean Disposal Site, CA,

[Federal Register: April 29, 1999 (Volume 64, Number 82)]

[Proposed Rules]

[Page 23030-23036]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr29ap99-17]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-6320-3]

Ocean Dumping; Amendment of Site Designation

AGENCY: Environmental Protection Agency EPA).

ACTION: Proposed rule.

SUMMARY: The Environmental Protection Agency (EPA) proposes to amend the site designation for the San Francisco Deep Ocean Disposal Site (SF-DODS), an existing deep ocean dredged material disposal site located off San Francisco, California, by setting a permanent annual disposal volume limit and clarifying conditions and requirements for use of the site.

Use of the SF-DODS, at the proposed annual volume limit of 4.8 million cubic yards, is consistent with, and is an important component of the regional Long Term Management Strategy for the Placement of Dredged Material in the San Francisco Bay Region (LTMS). Clarifications to the original site designation Rule, developed from experience with and monitoring of site use since designation, include addition of management measures and other site use requirements to further minimize the potential for any adverse environmental impacts.

DATES: Comments must be received on or before Jnue 1, 1999.

ADDRESSES: Send questions or comments to: Ms. Kathleen Dadey, Dredging and Sediment Management Team, U.S. Environmental Protection Agency, Region IX (WTR-8), 75 Hawthorne Street, San Francisco, CA 94105, telephone (415) 744-1995.

FOR FURTHER INFORMATION CONTACT: Ms. Kathleen Dadey, Dredging and Sediment Management Team, U.S. Environmental Protection Agency, Region IX (WTR-8), 75 Hawthorne Street, San Francisco, CA 94105, telephone (415) 744-1995 or Mr. Allan Ota, telephone (415) 744-1980.

SUPPLEMENTARY INFORMATION: The primary supporting documents for this designation amendment are the Final EIS for the Designation of a Deep Water Ocean Dredged Material Disposal Site off San Francisco, California (August 1993), the Long Term Management Strategy for the Placement of Dredged Material in the San Francisco Bay Region Final Policy EIS/Programmatic EIR (October, 1998), and the SF-DODS designation Final Rule (40 CFR 228.15(l)(3)). All are available for public inspection at the following locations:

1. EPA Region IX, Library, 75 Hawthorne Street, 13th Floor, San Francisco, California 94105.

2. EPA Public Information Reference Unit, Room 2904, 401 M Street, S.W., Washington, DC 20460.

3. ABAG/MTC Library, 101 8th Street, Oakland, California 94607.

4. Alameda County Library, 835 C Street, Hayward, California 94541.

5. Bancroft Library, University of California, Berkeley, California 94720.

6. Berkeley Public Library, 2090 Kittredge Street, Berkeley, California 94704.

7. Daly City Public Library, 40 Wembley Drive, Daly City, California 94015.

8. Environmental Information Center, San Jose State University, 125 South 7th Street, San Jose, California 95192.

9. Half Moon Bay Library, 620 Correas Street, Half Moon Bay, California 94019.

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10. Hayward Public Library, 835 C Street, Hayward, California 94541.

11. Hoover Institute, Stanford University, Stanford, California 94305.

12. Marin County Library, Civic Center, 3501 Civic Center Drive, San Rafael, California 94903.

13. North Bay Cooperative Library, 725 Third Street, Santa Rosa, California 95404.

14. Oakland Public Library, 125 14th Street, Oakland, California 94612.

15. Richmond Public Library, 325 Civic Center Plaza, Richmond, California 94804.

16. San Francisco Public Library, Civic Center, Larkin & McAllister, San Francisco, California 94102.

17. San Francisco State University Library, 1630 Holloway Avenue, San Francisco, California 94132.

18. San Mateo County Library, 25 Tower Road, San Mateo, California 94402.

19. Santa Clara County Free Library, 1095 North Seventh Street, San Jose, California 95112.

20. Santa Cruz Public Library, 224 Church Street, Santa Cruz, California 95060.

21. Sausalito Public Library, 420 Litho Street, Sausalito, California 94965.

22. Stanford University Library, Stanford, California 94305.

    Additional supporting documentation is contained in the draft SF- DODS Site Management and Monitoring Plan Implementation Manual, the LTMS EIS/R administrative record, and related documents, available from the EPA Region IX Library (number 1 in the list above).

    1. Regulated Entities

       Entities potentially regulated by this action are persons, organizations, or government bodies seeking to dispose of dredged material in ocean waters at the SF-DODS, under the Marine Protection Research and Sanctuaries Act, 33 U.S.C. 1401 et seq. The Rule would be primarily of relevance to parties in the San Francisco area seeking permits from the U.S. Army Corps of Engineers to transport dredged material for the purpose of disposal into ocean waters at the SF-DODS, as well as the U.S. Army Corps of Engineers itself (when proposing to dispose of dredged material at the SF-DODS). Potentially regulated categories and entities seeking to use the SF-DODS and thus subject to this Rule include:

       Examples of potentially regulated Category

       entities

       Industry and General Public.. ‹bullet› Ports. ‹bullet› Marinas and Harbors. ‹bullet› Shipyards and Marine Repair Facilities. ‹bullet› Berth owners. State, local and tribal

       ‹bullet› Governments owning and/or governments.

       responsible for ports, harbors, and/or berths. ‹bullet› Government agencies requiring disposal of dredged material associated with public works projects. Federal government........... ‹bullet› U.S. Army Corps of Engineers Civil Works projects. ‹bullet› Other Federal agencies, including the Department of Defense.

       This table lists the types of entities that EPA is now aware could potentially be regulated. EPA notes, however, that nothing in this amendment alters in any way, the jurisdiction of EPA, or the types of entities regulated under the Marine Protection Research and Sanctuaries Act. To determine if you or your organization is potentially regulated by this action, you should carefully consider whether you expect to propose ocean disposal of dredged material, in accordance with the Purpose and Scope provisions of 40 CFR 220.1, and if you wish to use the SF-DODS. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the proceeding FOR FURTHER INFORMATION section.

    2. Background

       Section 102(c) of the Marine Protection Research and Sanctuaries Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the Administrator of EPA authority to designate sites where ocean disposal may be permitted. On October 1, 1986, the Administrator delegated authority to designate ocean dredged material disposal sites to the Regional Administrator of the EPA Region in which the site(s) is located. Today's action, proposing to amend the 40 CFR 228.15(l)(3) SF- DODS designation Rule, is being made pursuant to that authority.

       By publication of a Final Rule in the Federal Register on August 11, 1994 (59 FR 41243), EPA Region IX designated the SF-DODS as an ocean dredged material disposal site. The center of the SF-DODS is located approximately 49 nautical miles (91 kilometers) west of the Golden Gate and occupies an area of approximately 6.5 square nautical miles (22 square kilometers). Water depths within the SF-DODS range from approximately 8,200 to 9,840 feet (2,500 to 3,000 meters). The center coordinates of the oval-shaped site are: 37 deg.39.0' North latitude by 123 deg.29.0' West longitude (North American datum, dated 1983). The north-south axis is approximately four nautical miles (7.5 kilometers); the east-west axis is 2.5 nautical miles (4.5 kilometers).

       The SF-DODS is an important component of the LTMS. The LTMS is a cooperative interagency planning process for dredged material management that incorporates concerns and issues of a wide range of stakeholders, including navigation and fishing interests, environmental organizations and the general public. The LTMS seeks to develop a comprehensive, technically feasible, environmentally suitable, and economically prudent long-range approach to meeting the region's dredged material disposal needs.

       In its August 11, 1994 Final Rule, EPA designated the SF-DODS for use for a period of 50 years, with an interim capacity of six million cubic yards per calendar year until December 31, 1996. Because the LTMS regional planning effort was not completed by that date, the SF-DODS designation was subsequently extended (by Final Rule dated December 30, 1996, 61 FR 68964) at an interim annual volume limit of 4.8 million cubic yards until December 31, 1998. The reason for revising the volume limit from six to 4.8 million cubic yards was the revised and substantially decreased estimate of the long term need for ocean disposal of dredged material, resulting primarily from military base closures in the region.

       Since the August 11, 1994 and December 30, 1996 Final Rules, substantial effort has been made toward development of a comprehensive dredged material management approach for the region. The federal and state LTMS agencies have prepared the Final LTMS EIS/R which was published in October 1998. The LTMS EIS/R

       [[Page 23032]]

       evaluates dredged material management options for the San Francisco Bay Region over the next 50 years, and contains a comprehensive evaluation of alternatives for dredged material disposal in the San Francisco Bay area, including ocean disposal, in-Bay disposal (placement at designated sites within the San Francisco Bay Estuary that are managed under section 404 of the Clean Water Act), and upland disposal or beneficial reuse. The alternatives evaluated in the LTMS EIS/R include varying levels of dredged material disposal or reuse in each of these three placement environments. The potential environmental and socioeconomic effects of each alternative were evaluated in the EIS/R. Based on these analyses, the environmentally preferred alternative (and the selected action) calls for significantly reducing in-Bay disposal and significantly increasing beneficial reuse and/or upland disposal. Specifically, the LTMS selected alternative includes a long-term goal of 20% in-Bay disposal, 40% beneficial reuse (and/or upland disposal), and 40% ocean disposal, primarily at the SF-DODS.

       The LTMS EIS/R recognized, however, that beneficial reuse of dredged material, especially in the earlier years of LTMS implementation, will not always be a practicable alternative. Currently, only limited opportunities for beneficial use of dredged material exist in the Bay area. Although several reuse projects are in the planning stages, their specific capacities and the time frames of their availability are uncertain. In addition, the costs associated with reuse options may render them not practicable for certain projects or entities. For these reasons, a relatively higher proportion of aquatic (ocean plus in-Bay) disposal than called for as the long term goal under the LTMS selected alternative is expected to be necessary until substantial new upland disposal or reuse capacity becomes available.

       EPA has determined that disposal of suitable dredged material at the SF-DODS presents less risk of adverse environment impact than does in-Bay disposal (see for example, Section 6.1 of the LTMS Final EIS/R). Therefore, to the extent that disposal at the SF-DODS is practicable, it may be the least environmentally damaging alternative, and in-Bay disposal of dredged material may not be permitted under the Clean Water Act section 404(b)(1) Guidelines (40 CFR part 230). Consequently, EPA has determined that there is a need for continued availability of the SF-DODS for dredged material disposal at the annual volume limit of 4.8 million cubic yards, and that this disposal volume limit is an important aspect of the regional LTMS planning effort and necessary for its success. Today's action is primarily intended to set a permanent annual volume limit that will allow the SF-DODS to accommodate dredging projects for which beneficial reuse (and/or upland disposal) is not practicable, while minimizing the amount of dredged material disposed in-Bay. In addition, EPA is also proposing several changes that clarify the Site Management and Monitoring Plan (SMMP) for the SF-DODS, and that provide enhanced environmental protection.

    3. Disposal Volume Limit

       The proposed annual disposal limit for the SF-DODS (as a permanently designated site) is 4.8 million cubic yards. This volume is considerably less than the 6 million cubic yards per year originally determined to be environmentally acceptable for the SF-DODS. To date, project-specific, annual, and confirmatory monitoring efforts have indicated that disposal at the SF-DODS has not resulted in significant adverse environmental impacts, consistent with the conclusions of the original (1993) site designation EIS.

       A number of disposal violations have occurred since the SF-DODS was designated in 1994. However, considering that nearly 2,500 barge loads have been disposed at the site over the past three years ‹SUP›1‹/SUP›, violations have been relatively rare. Furthermore, EPA has vigorously pursued enforcement of permit violations and will continue to do so.

       \1\ For example, during the Oakland Harbor 42 foot deepening project, EPA noted approximately 10 disposal incidents outside the original target area, but within the SF-DODS site, two incidents outside the disposal site, but also outside of the Marine Sanctuaries, and two disposal incidents within the Gulf of the Farallones National Marine Sanctuary. Two incidents resulted, at least in part, from weather- or equipment-related emergencies. Similarly, EPA is aware of only two disposal incidents arising from the recent Richmond Harbor deepening project which were both the result of mechanical failures.

       Public comments on the LTMS EIS/R and on the draft SF-DODS Site Management and Monitoring Plan Implementation Manual expressed the concern that the original SF-DODS site designation EIS (EPA, 1993) contained an inaccurate evaluation of potential impacts due to increased disposal-related vessel traffic to and from the SF-DODS. Specifically, the original site designation EIS concluded that vessel traffic in the area would increase by only approximately two percent as a result of trips to the SF-DODS. (The 1998 LTMS EIS/R assumed a worst- case situation of approximately three times the average disposal frequency evaluated in the SF-DODS EIS.) One commenter, using vessel traffic information summarized in the SF-DODS EIS, calculated that worst-case overall vessel traffic increases in the Western Traffic Lane due to dredged material transport could be as great as 77 percent of the existing traffic. The commenter was concerned that this vessel traffic increase could result in significant disturbance-related impacts, especially to seabirds and marine mammals.

       EPA has re-evaluated the potential vessel traffic increase, and the potential for this increase to result in adverse environmental impacts. This evaluation, which is presented in detail in the response to comments on the LTMS EIS/R, corroborates the EIS/R commenter's calculations and suggests that overall traffic increases may be between 110 and 162 percent. Nevertheless, EPA has determined that significant adverse impacts are unlikely to result from even the worst-case vessel traffic increases potentially associated with the proposed 4.8 million cubic yard annual disposal volume limit, for the following reasons:

       ‹bullet› The worst-case increase in vessel traffic is significant in terms of absolute numbers. However, the majority of other vessels using the Western Traffic Lane (i.e., the one used by dredged material disposal-related vessels) are considerably larger in size, travel faster, carry cargo that is likely to be more dangerous to the aquatic environment if spilled or otherwise discharged, and generally are expected to result in a greater potential for disturbance to birds and mammals along the route to the SF-DODS than do the relatively small and slow-moving tugs and barges transporting dredged material. For example, as documented in the LTMS Final EIS/R, large commercial ships (56%) and tankers (13.3%) comprised the majority of the vessels using the Western Transit Lane during the period of 1980 through 1991.‹SUP›2‹/SUP›

       \2\ Data are from the Final Environmental Impact Statement for Designation of a Deep Water Ocean Dredged material Disposal Site off San Francisco, California (August 1993).

       ‹bullet› Monitoring to date, including regional environmental monitoring and observers on dredged material disposal vessels, particularly during years of high disposal activity, has confirmed that no adverse effects to seabirds and marine mammals have occurred in terms of distraction, stress or alteration of behavior. Furthermore, seabird and marine mammal monitoring during transits to the SF-DODS will continue, and in some cases may increase, as a result of proposed changes to Mandatory Condition #12 (see below).

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    4. Other Technical Changes to the SF-DODS SMMP

       SMMP Implementation Manual: EPA proposes to clarify the SF-DODS Rule to ensure that permittees use the most current information available regarding site management and monitoring by explicitly directing them to adhere to requirements contained in the current version of the SMMP Implementation Manual. EPA intends to use the Implementation Manual as the primary vehicle for addressing new technology, making changes resulting from site monitoring, and incorporating other improvements. In this way, EPA can effect necessary modifications in the most expedient and efficient manner.

       Surface Target Area: EPA is proposing modifications to Mandatory Condition #5 to reduce the surface target area of the SF-DODS from the existing radius of 1,000 meters to a circle with a radius of 600 meters. EPA's intent is to ensure that dredged material deposition outside of the SF-DODS boundary is minimized.

       Acceptable Sea State: A number of commenters to the SF-DODS SMMP Implementation Manual and the LTMS EIS/R expressed concern regarding the maximum acceptable sea state for transit to the SF-DODS. They felt that the existing limits of ``gale warning'' and seas ``over 18 feet'' were not restrictive enough to minimize spillage and accidents. The Corps has incorporated revised acceptable sea states in its contracts for recent dredging projects and EPA has clarified sea states in the SMMP Implementation Manual to address these concerns. EPA proposes to codify a more restrictive sea state limit by modifying Mandatory Condition #1 to specifically limit the acceptable wave height to a maximum of 16 feet. Improvements in technology may result in changes to particular characteristics of the acceptable sea state (e.g., wave period). EPA will update the SMMP Implementation Manual to incorporate these changes, as appropriate.

       Scow Loading and Certification: EPA and the Corps have implemented several other modifications to dredging and disposal operations as a result of experience gained from monitoring and managing the SF-DODS to date. We are proposing revisions to Mandatory Condition #2 to clarify dredged material disposal vessel loading limitations and to include more specific provisions for inspections and written certification of each disposal vessel.

       Distance from Farallon Islands: The U.S. Coast Guard has noted that EPA does not have authority to restrict vessel traffic within already existing designated marine traffic lanes. A portion of the existing traffic lane used to transport material to the SF-DODS overlaps the three mile limit around the Farallon Islands. Therefore, EPA is proposing a change to Mandatory Condition #4 to reflect that the permittee must be at all times within the traffic lane, but is encouraged to remain at least three miles from the Farallon Islands whenever possible, consistent with safe navigation practices.

       Navigation Systems: Previous experience with disposal at SF-DODS has indicated to EPA that some permittees and/or their contractors may not be interpreting the details of this condition as EPA intended. Therefore, we propose to clarify our intent by providing more specific information in the condition.

       Monitoring During Transit: EPA proposes to clarify Mandatory Condition #12 to ensure continued and representative monitoring of birds and marine mammals during transit of dredged material vessels to the SF-DODS and to focus monitoring effort during times when transport of material is high. We intend to ensure that observers are present on a sufficient number of disposal vessel trips to characterize fully the potential impact of disposal site use and transit on seabirds and marine mammals, taking into account, to the extent feasible, seasonal variations in such potential impacts.

       Violation Notification: In response to a request from the National Oceanic and Atmospheric Administration, EPA is proposing to modify Mandatory Condition #11 to specifically require permittees to notify the Sanctuary Manager within 24 hours of any permit violation which occurs within the boundaries of either the Gulf of the Farallones National Marine Sanctuary or the Monterey Bay National Marine Sanctuary. Furthermore, EPA will continue to inform the Sanctuary Managers of all violations, both within and outside of the Sanctuaries.

       Reporting Requirements: EPA is proposing to modify Mandatory Condition #13 to specifically require permittees to provide all pertinent information related to the dredging and dredged material disposal to the agencies. This will ensure that EPA and the Corps of Engineers have adequate data to determine if permit violations have occurred and to correct such violations at the earliest possible time.

    5. Ocean Dumping Site Designation Criteria

       Five general criteria and 11 specific site selection criteria are used in the selection and approval of ocean disposal sites for continued use (40 CFR 228.5 and 40 CFR 228.6(a)). As described in the site designation EIS, the SF-DODS was specifically selected as the alternative which best complies with these criteria.

       Monitoring activities conducted pursuant to the requirements of the SF-DODS SMMP have shown that the SF-DODS is in compliance with the site designation criteria and is performing as predicted in the site designation EIS. For example, seafloor mapping indicates that bulk of the dredged material has landed within the site boundary and has not been transported offsite thereafter. Deposits exceeding 17 centimeters in thickness have been identified only at the center of the SF-DODS and no deposits thicker than the five centimeter threshold established in the site designation Final Rule have been detected at or outside of the site boundary. No apparent changes in the basic successional stage of the native benthic communities attributable to dredged material disposal have been observed outside the site boundary. Therefore, any significant disturbances associated with dredged material disposal are limited to within the site boundary. In addition, water column studies have confirmed that plumes resulting from disposal operations dissipate rapidly and that the suspended sediment concentration of plumes decreases to ambient levels shortly after disposal.

       Vessel traffic associated with disposal operations has not interfered with overall navigation in the region and has had no significant impact on marine mammals, birds, fish or other flora or fauna in the general region of the SF-DODS. Moreover, management actions taken by EPA and codified in today's proposed Rule further reduce the potential for adverse impacts.

       EPA has determined that, in general, disposal of suitable dredged material at the SF-DODS is less environmentally damaging than in-Bay disposal (see for example, Section 6.1 in the LTMS Final EIS/R). Therefore, use of the SF-DODS for disposal of suitable dredged material has reduced potential cumulative adverse impacts to the aquatic environment. Use of the SF-DODS during 1996, 1997 and 1998 resulted in a total of approximately 5.7 million cubic yards of dredged material not being disposed at in-Bay sites.

       Taken together, the evaluations presented in the site designation EIS and Final Rule, and the site monitoring results to date, confirm that the SF-DODS is performing as predicted and that it continues to meet the general and

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       specific site designation criteria of 40 CFR 228.5 and 228.6. Furthermore, EPA Region IX has determined that it is appropriate to designated a permanent annual disposal volume limit of 4.8 million cubic yards for the SF-DODS.

       Management of the site continues to be the responsibility of the Regional Administrator of EPA Region IX, in cooperation with the Corps South Pacific Division Engineer and the San Francisco District Engineer, based on the requirements defined in the Final Rule. The requirement for compliance with the Ocean Dumping Criteria of the MPRSA may not be superseded by the provisions of the LTMS or any future comprehensive regional management plan for dredged material. EPA also emphasizes that ocean disposal site designation does not constitute or imply EPA Region IX's or the Corps San Francisco District's approval of ocean disposal of dredged material from any project. Before disposal of any dredged material at the SF-DODS may occur, EPA Region IX and the Corps San Francisco District must evaluate the proposed project according to the Ocean Dumping Criteria (40 CFR part 227) adopted pursuant to the MPRSA. EPA Region IX or the Corps San Francisco District will not allow ocean disposal of material if either agency determines that the Ocean Dumping Criteria are not met.

    6. Regulatory Requirements

1. Consistency with the Coastal Zone Management Act

   EPA prepared a Coastal Zone Consistency Determination (CCD) document based on information presented in the site designation EIS (August 1993). The CCD evaluated whether the proposed action-- designation of ``Alternative Site 5'' (now SF-DODS) as described in the site designation EIS as an ocean disposal site for up to 50 years, with an annual capacity of six million cubic yards of dredged material meeting ocean disposal criteria--would be consistent with the provisions of the Coastal Zone Management Act. The CCD was formally presented to the California Coastal Commission (Commission) at their public hearing April 12, 1994. The Commission staff report recommended that the Commission concur with EPA's CCD, which the Commission did by a unanimous vote. Because the approved CCD was based on 50 years of site use at up to six million cubic yards of material annually, and none of the provisions in this proposed amendment exceed these parameters, the effects of today's proposal are well within the scope of the prior review and do not require further Commission review.

2. Endangered Species Act Consultation

   During development of the site designation EIS, EPA consulted with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) pursuant to the provisions of the Endangered Species Act (ESA), regarding the potential for designation and use of any of the alternative ocean disposal sites under study to jeopardize the continued existence of any federally listed species. This consultation process is fully documented in the August 1993 site designation EIS. NMFS and FWS concluded that none of the three alternative disposal sites, including the SF-DODS, if designated and used for disposal of dredged material meeting the criteria for ocean disposal, would likely jeopardize the continued existence of any federally listed species.

   The results of over four years of monitoring data indicate that disposal of dredged material at the SF-DODS has not had an adverse impact on federally listed or candidate species, nor their designated critical habitat.

   The ESA consultation was based on site use of up to six million cubic yards of dredged material per year, for 50 years. Since the action now proposed does not exceed these parameters and because conditions have not changed for any of the listed or candidate threatened or endangered species potentially affected by disposal site use, the effects of today's proposal are well within the scope of the original consultation and do not require further Endangered Species Act consultation.

   7. Administrative Review

1. Executive Order 12866

   Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is ``significant'', and therefore subject to OMB review and other requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to lead to a rule that may:

   (a) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;

   (b) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

   (c) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

   (d) Raise novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in the Executive Order.

   This proposed amendment should have minimal impact on permittees. Clarifications contained herein do not substantively alter the intent of the Rule nor its interpretation, and in general, codify actions that are already being taken. The annual volume limitation merely makes permanent the temporary volume set in the December 30, 1996 Rule amendment (61 FR 68964). Consequently, EPA has determined that this proposed Rule is not a ``significant regulatory action'' under the terms of Executive Order 12866.

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

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

3. Paperwork Reduction Act

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

4. The Unfunded Mandates Reform Act

   Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L.

   [[Page 23035]]

   104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year.

   This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. As described elsewhere in this preamble, today's proposed Rule would only have the effect of clarifying an existing Rule and setting a permanent annual disposal volume, providing a continuing disposal option for dredged material. Consequently, it imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this Rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this Rule.

   List of Subjects in 40 CFR Part 228

   Environmental protection, Water pollution control.

   Dated: March 24, 1999. Alexis Strauss, Acting Regional Administrator, Region IX.

   In consideration of the foregoing, chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as set forth below.

   PART 228--[AMENDED]

1. The authority citation for part 228 continues to read as follows:

   Authority: 33 U.S.C. 1412 and 1418.

   Sec. 228.15 [Amended]

2. Section 228.15 is amended in paragraph (l)(3)(vi) by adding a sentence before the last sentence; by revising paragraph (l)(3)(vii); and revising paragraphs (l)(3)(viii)(A)(1), (2), (4), (5), (7), (11), (12), and (13) to read as follows:

   Sec. 228.15 Dumping sites designated on a final basis.

   * * * * *

   (1) * * *

   (3) * * *

   (vi) * * * Adherence to the provisions of the most current SMMP Implementation Manual, including mandatory permit conditions, site monitoring activities, and any other condition(s) EPA or the Corps have required as part of the project authorization or permit, is a requirement for use of the SF-DODS. * * *

   (vii) Type and capacity of disposed materials. Site disposal capacity is 4.8 million cubic yards of suitable dredged material per year for the remaining period of site designation. This limit is based on considerations in the regional Long Term Management Strategy for the placement of dredged material within the San Francisco Bay region, and on monitoring of site use since the SF-DODS was designated in 1994.

   (viii) * * *

   (A) * * *

   (1) Transportation of dredged material to the SF-DODS shall only be allowed when weather and sea state conditions will not interfere with safe transportation and will not create risk of spillage, leak or other loss of dredged material in transit to the SF-DODS. No disposal trips shall be initiated when the National Weather Service has issued a gale warning for local waters during the time period necessary to complete dumping operations, or when wave heights are 16 feet or greater. The permittee must consult the most current version of the SMMP Implementation Manual for additional restrictions and/or clarifications regarding other sea state parameters, including, but not limited to wave period.

   (2) All vessels used for dredged material transportation and disposal must be loaded to no more than 80 percent by volume of the vessel. Before any disposal vessel departs for the SF-DODS, an independent quality control inspector must certify in writing that the vessel meets the conditions and requirements of a certification checklist that contains all of the substantive elements found in the example contained in the most current SMMP Implementation Manual. For the purposes of paragraph (l)(3)(viii) of this section, ``independent'' means not an employee of the permittee or dredging contractor; however, the Corps of Engineers may provide inspectors for Corps of Engineers dredged material disposal projects. * * * * *

   (4) Disposal vessels in transit to and from the SF-DODS should remain at least three nautical miles from the Farallon Islands whenever possible. Closer approaches should occur only in situations where the designated vessel traffic lane enters the area encompassed by the 3- mile limit, and where safety may be compromised by staying outside of the 3-mile limit. In no case may disposal vessels leave the designated vessel traffic lane.

   (5) When dredged material is discharged within the SF-DODS, no portion of the vessel from which the materials are to be released (e.g., hopper dredge or towed barge) can be further than 1,900 feet (600 meters) from the center of the target area at 37 deg.39' N, 123 deg.29' W. * * * * *

   (7) Disposal vessels shall use an appropriate navigation system capable of indicating the position of the vessel carrying dredged material (for example, a hopper dredged vessel or towed barge) with a minimum accuracy and precision of 100 feet during all disposal operations. The system must also indicate the opening and closing of the doors of the vessel carrying the dredged material. If the positioning system fails, all disposal operations must cease until the navigational capabilities are restored. The back-up navigation system, with all the capabilities listed in this condition, must be in place on the vessel carrying the dredged material. * * * * *

   (11) The permittee shall report any anticipated or actual permit violations to the District Engineer and the Regional Administrator within 24 hours of discovering such violation. If any anticipated or actual permit violations occur within the Gulf of the Farallones or the Monterey Bay National Marine Sanctuaries, the permittee must also report any such violation to the respective Sanctuary Manager within 24 hours. In addition, the permittee shall prepare and submit reports, certified accurate by the independent quality control inspector, on a frequency that shall be specified in permits, to the District Engineer and the Regional Administrator setting forth the information required by Mandatory Conditions in paragraphs (l)(3)(viii)(A)(8) and (9) of this section.

   (12) Permittees, and the Corps in its Civil Works projects, must make arrangements for independent observers to be present on disposal vessels for the purpose of conducting shipboard surveys of seabirds and marine mammals. Observers shall employ standardized monitoring protocols, as referenced in the most current SMMP Implementation Manual. At a minimum, permittees shall ensure that independent observers are present on at least one disposal trip during each calendar month that disposal occurs, AND on average at least once every 25 vessel trips to the SF-DODS.

   [[Page 23036]]

   (13) At the completion of short-term dredging projects, at least annually for ongoing projects, and at any other time or interval requested by the District Engineer or Regional Administrator, permittees shall prepare and submit to the District Engineer and Regional Administrator a report that includes complete records of all dredging, transport and disposal activities, such as navigation logs, disposal coordinates, scow certification checklists, and other information required by permit conditions. Electronic data submittals may be required to conform to a format specified by the agencies. Permittees shall include a report indicating whether any dredged material was dredged outside the areas authorized for dredging or was dredged deeper than authorized for dredging by their permits. * * * * *

   [FR Doc. 99-10729Filed4-28-99; 8:45 am]

   BILLING CODE 6560-50-P