82 FR 44369 - Ocean Disposal; Temporary Modification of an Ocean Dredged Material Disposal Site in Massachusetts Bay

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 183 (September 22, 2017)

Page Range		44369-44375
FR Document		2017-20326

The Environmental Protection Agency (EPA) is proposing to approve a temporary modification of the currently-designated Massachusetts Bay Dredged Material Disposal Site (MBDS) pursuant to the Marine Protection, Research, and Sanctuaries Act, as amended (MPRSA). The purpose of this temporary site modification is to allow for the environmental restoration of a particular area adjacent to the currently-designated MBDS (Potential Restoration Area) by temporarily expanding the boundaries of the existing MBDS. The temporary expansion is a circular area that contains the Potential Restoration Area, which includes most of the historic Industrial Waste Site (IWS). Decades ago, the IWS was used for the disposal of barrels containing industrial, chemical and radioactive waste, as well as for the disposal of munitions, ordnance, construction equipment, and contaminated dredged material. The proposed modification of the disposal site boundary will enable the U.S. Army Corps of Engineers (USACE) to place suitable dredged material from Boston Harbor generated during the Deep Draft Navigation Project at the Potential Restoration Area in order to cover the barrels and other wastes disposed there in the past. The Deep Draft Navigation Project includes maintenance dredging in the inner harbor, which includes the expansion of a confined aquatic disposal (CAD) cell and will generate approximately 1 million cubic yards (cy) of dredged material, as well as improvement dredging of the main ship channel, which will generate approximately 11 million cy of dredged material. The existing MBDS will continue to be used for disposal of other dredging projects as usual. The expansion area would be permanently closed upon completion of the Boston Harbor maintenance and improvement projects, while the existing MBDS will remain open for the disposal of suitable dredged material. Like the MBDS, however, the expansion would be subject to ongoing monitoring and management to ensure continued protection of the marine environment.

Federal Register, Volume 82 Issue 183 (Friday, September 22, 2017)

[Federal Register Volume 82, Number 183 (Friday, September 22, 2017)]
[Proposed Rules]
[Pages 44369-44375]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-20326]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R01-OW-2017-0528; FRL-9967-82-Region 1]

Ocean Disposal; Temporary Modification of an Ocean Dredged
Material Disposal Site in Massachusetts Bay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a temporary modification of the currently-designated
Massachusetts Bay Dredged Material Disposal Site (MBDS) pursuant to the
Marine Protection, Research, and Sanctuaries Act, as amended (MPRSA).
The purpose of this temporary site modification is to allow for the
environmental restoration of a particular area adjacent to the
currently-designated MBDS (Potential Restoration Area) by temporarily
expanding the boundaries of the existing MBDS. The temporary expansion
is a circular area that contains the Potential Restoration Area, which
includes most of the historic Industrial Waste Site (IWS). Decades ago,
the IWS was used for the disposal of barrels containing industrial,
chemical and radioactive waste, as well as for the disposal of
munitions, ordnance, construction equipment, and contaminated dredged
material. The proposed modification of the disposal site boundary will
enable the U.S. Army Corps of Engineers (USACE) to place suitable
dredged material from Boston Harbor generated during the Deep Draft
Navigation Project at the Potential Restoration Area in order to cover
the barrels and other wastes disposed there in the past. The Deep Draft
Navigation Project includes maintenance dredging in the inner harbor,
which includes the expansion of a confined aquatic disposal (CAD) cell
and will generate approximately 1 million cubic yards (cy) of dredged
material, as well as improvement dredging of the main ship channel,
which will generate approximately 11 million cy of dredged material.
The existing MBDS will continue to be used for disposal of other
dredging projects as usual. The expansion area would be permanently

[[Page 44370]]

closed upon completion of the Boston Harbor maintenance and improvement
projects, while the existing MBDS will remain open for the disposal of
suitable dredged material. Like the MBDS, however, the expansion would
be subject to ongoing monitoring and management to ensure continued
protection of the marine environment.

DATES: Comments must be received on or before October 23, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OW-2017-0528, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: Publically available docket materials are available either
electronically at regulations.gov or on the EPA Region 1 Ocean Dumping
Web page at https://www.epa.gov/ocean-dumping/managing-ocean-dumping-epa-region-1. They are also available in hard copy during normal
business hours at the EPA Region 1 Library, 5 Post Office Square,
Boston, MA 02109.
The supporting document for this site modification is the Draft
Environmental Assessment on the Expansion of the Massachusetts Bay
Ocean Dredged Material Disposal Site (ODMDS), September 2017, which was
prepared by EPA.

FOR FURTHER INFORMATION CONTACT: Alicia Grimaldi, U.S. Environmental
Protection Agency, Region 1, 5 Post Office Square, Suite 100, Mail
Code: OEP 6-1, Boston, MA 02109; telephone--(617) 918-1806; fax--(617)
918-0806; email [email protected].

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

The expansion of the MBDS is a temporary modification made in order
to improve environmental conditions at the Potential Restoration Area
by allowing suitable dredged material from the USACE Boston Harbor
maintenance and improvement projects only to be placed over wastes
dumped in the past at the historic IWS. Therefore, the persons
potentially affected by this action would be limited to the USACE, who
are responsible for the Boston Harbor Deep Draft Navigation Project and
the disposal of dredged material into ocean waters under MPRSA. The
existing MBDS will continue to be used for the disposal of dredged
material suitable for ocean disposal pursuant to the MPRSA.

II. Background

A. History of Disposal Sites in Massachusetts Bay

The IWS is a disposal site in Massachusetts Bay approximately 20
nautical miles (nmi) east of Boston that was used in the past for
disposal of a variety of wastes that would not be permitted for
disposal today. The IWS is a circular cite with a center of
42[deg]25.7' N., 70[deg]35.0' W. and a radius of 1 nmi. It is believed
that disposal of derelict vessels, construction debris, commercial
waste, and dredged material at the area may have begun as early as the
early 1900s. There are records dating back to the 1940s for the
disposal of radioactive, chemical and hospital waste, ordnance,
munitions, etc. Use of the IWS was discontinued in 1977 and the site
was officially de-designated in 1990 (55 FR 3688). From 1977 through
1993, there was an Interim Massachusetts Bay Disposal Site for dredged
material disposal with a center 1 nmi east of the IWS at 42[deg]25.7'
N., 70[deg]34.0' W. and a radius of 1 nmi. In 1993, the existing MBDS
was designated by EPA with a center at 42[deg]25.1' N., 70[deg]35.0' W.
and a radius of 1 nmi, an area of 3.14 nmi\2\, and depth ranges from 82
to 92 m. The MBDS overlaps the IWS to the south, but avoids the known
densest concentration of barrels, also known as the barrel field. The
MBDS is used solely for the disposal of dredged material, primarily
from Boston Harbor.
The USACE will begin the Boston Harbor maintenance and improvement
dredging projects in the fall of 2017. The project is expected to
generate approximately 12 million cubic yards of dredged material
consisting primarily of Boston blue clay. EPA and USACE are proposing
to use this dredged material beneficially by covering the area in and
around the historic IWS barrel field. This will be accomplished
utilizing a method of disposal developed and tested by the USACE, which
is designed to prevent direct impact of sediment onto waste containers,
which could potentially break them or cause the resuspension of
potentially contaminated sediment on the seafloor.
Before any entity can dispose of dredged material at the MBDS, EPA
and the USACE must evaluate the project according to the ocean dumping
regulatory criteria (40 CFR 227) and determine whether to authorize the
disposal. EPA independently evaluates proposed disposal projects and
has the right to restrict and/or reject the disposal of dredged
material if it determines that the environmental protection
requirements under the MPRSA have not been met. This proposed
modification to the MBDS site boundaries does not constitute an
approval by EPA or USACE for open water disposal of dredged material
from any specific project.

B. Location and Configuration of Modified Ocean Dredged Material
Disposal Site

EPA proposes the temporary expansion of the MBDS boundaries to
include the Potential Restoration Area, which encompasses the IWS
barrel field. The expansion will be temporary, opening upon the
effective date of the Final Rule and closing upon completion of the
Boston Harbor maintenance and improvement dredging projects. The
temporarily expanded site will consist of two overlapping circles:

Center 1--42[deg]25.1' N., 70[deg]35.0' W., 1 nautical mile
radius (existing MBDS)
Center 2--42[deg]26.417' N., 70[deg]35.373' W., 0.75 nautical
mile radius (temporary expansion)

The area of the temporarily modified MBDS is 4.60 nmi\2\ and the
western edge is approximately 19 nmi east of Boston. Water depths at
the modified site range from 70 to 91m. Like the existing MBDS, the
modified MBDS will not overlap, and is not expected to impact, the
Stellwagen Bank National Marine Sanctuary (SBNMS).

C. Management and Monitoring of the Site

Under the proposal, there would be two distinct areas of the
modified MBDS: The existing MBDS and the temporary expansion. The
existing MBDS will continue to be utilized as a dredged material
disposal site for those projects generating dredged material suitable
for open water disposal under the MPRSA. The temporary expansion will
solely be used for the disposal of

[[Page 44371]]

suitable material generated during the Boston Harbor maintenance and
improvement dredging projects. Disposal of dredged material in both the
existing MBDS and temporary expansion would be required to abide by the
Site Management and Monitoring Plan (SMMP) for the MBDS. The SMMP
includes management and monitoring requirements to ensure that the any
dredged material placed at the sites is suitable for ocean disposal and
that the adverse impacts of disposal, if any, are addressed to the
maximum extent practicable. The SMMP for the MBDS includes restrictions
on time-of-year for disposal and disposal vessel speeds, requirements
for the presence of a marine mammal observer for each disposal event,
and other guidelines to minimize any potential conflicts with
threatened or endangered species.

D. MPRSA Criteria

EPA has assessed the proposed temporary modification to the MBDS
according to the criteria of the MPRSA, with particular emphasis on the
general and specific regulatory criteria of 40 CFR 228.5 and 228.6, to
determine whether the proposed site modification satisfied those
criteria. The Draft Environmental Assessment of the Expansion of the
Massachusetts Bay Ocean Dredged Material Disposal Site (ODMDS) provides
an extensive evaluation of the site selection criteria and other
related factors considered in deciding to propose the modification of
the MBDS.
1. General Criteria (40 CFR 228.5)
(a) The dumping of materials into the ocean will be permitted only
at sites or in areas selected to minimize the interference of disposal
activities with other activities in the marine environment,
particularly avoiding areas of existing fisheries or shellfisheries,
and regions of heavy commercial or recreational navigation.
Since it's designation in 1993, disposal at the MBDS has not
interfered with other activities in the marine environment. It is
anticipated that this will also be the case for the temporarily
modified MBDS. The IWS has been closed by the National Oceanic and
Atmospheric Administration's (NOAA) National Marine Fisheries Service
(NMFS) since 1980 to the harvesting of surf clams and ocean quahogs.
There is also a warning from NOAA and the Food and Drug Administration
(FDA) on all nautical charts against harvesting fish and shellfish in
the area. The expanded MBDS area has low recreational boater density
and does not overlap with the shipping lanes into and out of Boston
Harbor.
(b) Locations and boundaries of disposal sites will be so chosen
that temporary perturbations in water quality or other environmental
conditions during initial mixing caused by disposal operations anywhere
within the site can be expected to be reduced to normal ambient
seawater levels or to undetectable contaminant concentrations or
effects before reaching any beach, shoreline, marine sanctuary, or
known geographically limited fishery or shellfishery.
The modified MBDS will be used only for dredged material suitable
for ocean disposal under the MPRSA. USACE also models disposal projects
to evaluate their potential to violate water quality standards. The
nearest shoreline to the modified MBDS is approximately 8 nmi to the
north. The prevailing current is not expected to transport dredged
material to surrounding beaches or shores. Temporary changes caused by
the physical movement of sediment through the water column will be
reduced to ambient conditions before reaching any environmentally
sensitive area. SBNMS is immediately east of the site, but a steep
bathymetric rise between the two features provides containment of
dredged material in the deeper area containing the modified MBDS, known
as Stellwagen Basin. There are no known geographically-limited
fisheries or shellfisheries in the project area.
(d) The sizes of ocean disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts
and permit the implementation of effective monitoring and surveillance
programs to prevent adverse long-range impacts. The size,
configuration, and location of any disposal site will be determined as
a part of the disposal site evaluation or designation study.
The size and configuration of the temporarily modified MBDS is
specifically designed to allow for the IWS barrel field to be covered
by suitable dredged material generated during the USACE Boston Harbor
maintenance and improvement projects. The MBDS area has been monitored
under the USACE Disposal Area Monitoring System (DAMOS) program since
the late 1970s. Monitoring will continue at the MBDS and temporary
expansion to prevent adverse long-range impacts.
(e) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites that have
been historically used.
The continental shelf is over 220 nmi east of Boston. Therefore,
transporting material to, and performing long-term monitoring at, a
site located off the continental shelf is not economically or
operationally feasible. The project area has been used for ocean
disposal since at least the early 1900s.
2. Specific Criteria (40 CFR 228.6(a))
(1) Geographical position, depth of water, bottom topography and
distance from coast.
The temporarily expanded MBDS is located in an area of
Massachusetts Bay known as Stellwagen Basin and is approximately 8 nmi
from the nearest coastline in Gloucester, MA. The depth of the
temporarily expanded site ranges from 70-91 meters. The seafloor in the
area is primarily flat and primarily made up of silt and clay. There
are two glacial knolls included within the boundaries of the temporary
expansion, both roughly 20 m high. These knolls are not included in the
Potential Restoration Area and, therefore, no disposal will take place
on them.
(2) Location in relation to breeding, spawning, nursery, feeding,
or passage areas of living resources in adult or juvenile phases.
The MBDS area contains Essential Fish Habitat (EFH) for various
fish species, and certain threatened and endangered species of whale
and sea turtle have been sighted in the vicinity of the MBDS.
Furthermore, the entirety of Massachusetts Bay, and most of the larger
Gulf of Maine, are designated as a critical foraging habitat for the
North Atlantic Right Whale by NMFS. At the same time, NMFS has
previously determined that dredged material disposal at the MBDS would
not impact any of these species and restrictions are in place to ensure
their safety, including vessel speed and disposal time-of-year
limitations and the requirement that marine mammal observers accompany
the USACE on vessels during disposal operations. Furthermore, any risk
of contaminants entering the food web is expected to be minimized by
the covering of the IWS barrel field.
(3) Location in relation to beaches and other amenity areas.
The closest beach to the temporarily expanded MBDS is 10 nmi away.
The SBNMS is just east of the MBDS. Past dredged material disposal has
not impacted the SBNMS and no impact to the SBNMS is expected with the
temporary expansion of the MBDS.
(4) Types and quantities of wastes proposed to be disposed of, and
proposed methods of release, including methods of packing the waste, if
any.

[[Page 44372]]

The MBDS is only to be used for the disposal of dredged material
that is suitable for ocean disposal under the MPRSA. The temporary
expansion of the MBDS will only be used for suitable dredged material
generated during the USACE Boston Harbor maintenance and navigation
projects. Disposal within the temporary expansion will utilize a berm-
building technique devised by the USACE in order to minimize the risk
of barrel breakage or resuspension of potentially contaminated seafloor
sediment.
(5) Feasibility of surveillance and monitoring.
The MBDS is monitored through the DAMOS program under the guidance
of the SMMP. Disposal is also monitored through the National Dredging
Quality Management Program to confirm accurate placement of dredged
material. The area of temporary expansion will be included in the
monitoring of the MBDS under the DAMOS program from the time of first
disposal for as long as MBDS monitoring continues.
(6) Dispersal, horizontal transport and vertical mixing
characteristics of the area, including prevailing current direction and
velocity, if any.
Current velocities range from 0-30 cm/s in the MBDS area. Currents
are influenced by tides in a rotational manner, but net water movement
is to the southeast. Regional dredged material is primarily made up of
fine sand, silt, and clay. Dredged material generated during the USACE
Boston Harbor maintenance and improvement projects is primarily Boston
blue clay, which is cohesive and, therefore, settles rapidly. Minimal
horizontal mixing or vertical stratification of dredged material
occurs, resulting in low suspended sediment concentrations. Previous
modeling of initial disposal indicates no adverse impacts in the water
column or violations of water quality criteria. Previous studies have
demonstrated the relative immobility of dredged material at the MBDS.
Storms with the potential to cause sediment resuspension are rare in
Massachusetts Bay.
(7) Existence and effects of current and previous discharges and
dumping in the area (including cumulative effects).
Beginning in the early 1900s, the historic IWS was used for the
disposal of industrial, chemical, medical, low-level radioactive, and
other hazardous wastes, in addition to contaminated dredged material,
construction debris, derelict vessels, etc. An Interim MBDS was
designated in 1977 for the disposal of dredged material and it was
closed in 1993, which is when the existing MBDS was designated. Studies
and monitoring of the area have shown no significant impacts on water
quality, sediment quality, or marine resources. More information
regarding the effects of disposal in the area can be found in the Draft
Environmental Assessment on the Expansion of the Massachusetts Bay
Ocean Dredged Material Disposal Site. The berm-building disposal
technique designed by USACE is intended to limit the resuspension of
potentially contaminated seafloor sediment or hazardous materials in
the area. Furthermore, placing dredged material generated during the
USACE Boston Harbor maintenance and improvement projects on top of
potentially contaminated materials dumped at the IWS in the past will
isolate these potential contaminants under a protective layer of
suitable sediments, consisting primarily of clay.
(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.
Extensive shipping, fishing, recreational, and scientific research
activities take place in Massachusetts Bay throughout the year. Dredged
material disposal operations at the MBDS have not interfered with these
activities and the temporary expansion of the MBDS would also not
interfere with these activities. Due to the hazardous nature of
material historically disposed in the IWS, a warning to fishermen
against fishing and shellfishing in the area is already included on all
nautical charts and the area is closed for the harvesting of ocean
quahogs and surf clams. Therefore, disposal operations in the area
would not interfere with any existing fishing activity.
(9) The existing water quality and ecology of the site as
determined by available data or by trend assessment or baseline
surveys.
Monitoring at the disposal area has taken place since the late
1970s under the DAMOS program. Surveys at the MBDS have detected no
significant differences in water quality or biological characteristics
in the disposal site and adjacent reference areas. A Baseline Seafloor
Assessment Survey for the Proposed Expansion of the MBDS was completed
by the USACE in anticipation of this project and it is available on the
USACE DAMOS site at http://www.nae.usace.army.mil/Missions/Disposal-Area-Monitoring-System-DAMOS/.
(10) Potentiality for the development or recruitment of nuisance
species in the disposal site.
There are no known components of dredged material or consequences
of its disposal that would attract or result in the recruitment or
development of nuisance species at the expanded MBDS. Nuisance species
have not been detected in any survey of the area.
(11) Existence at or in close proximity to the site of any
significant natural or cultural features of historical importance.
There are two known shipwrecks within the boundaries of the
existing MBDS: A Coast Guard vessel and a 55-foot fishing boat. Both
were intentionally sunk in 1981 and are not considered to be
historically significant. Additional shipwrecks have been revealed in
the area during subsequent surveys, although there are no identified
shipwrecks within the Potential Restoration Area. Disposal operations
have avoided and will continue to avoid any shipwrecks in the project
area by implementing a fifty-meter buffer around known shipwrecks
within which no disposal will occur.

III. Environmental Statutory Review

A. National Environmental Policy Act (NEPA)

Section 102 of the National Environmental Policy Act of 1969, as
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to
prepare an Environmental Impact Statement (EIS) for major federal
actions significantly affecting the quality of the human environment.
NEPA does not apply to EPA designations of ocean disposal sites under
the MPRSA because EPA's actions under the MPRSA are exempt from the
procedural requirements of NEPA through the functional equivalence
doctrine. Nevertheless, as a matter of policy, EPA undertakes a NEPA
review for certain of its regulatory actions, including the designation
of dredged material disposal sites under Section 102 of the MPRSA. The
EPA's ``Notice of Policy and Procedures for Voluntary Preparation of
NEPA Documents'' (Voluntary NEPA Policy), 63 FR 58045 (October 29,
1998), sets out both the policy and procedures the EPA uses when
preparing such environmental review documents.
The EPA's primary voluntary NEPA document addressing the proposed
temporary expansion of the MBDS is the Draft Environmental Assessment
on the Expansion of the Massachusetts Bay Ocean Dredged Material
Disposal Site (ODMDS) [September 2017] (Draft EA), prepared by EPA in
cooperation with USACE. Anyone desiring a copy of the Draft EA may
obtain one using the methods provided above in the Docket

[[Page 44373]]

section. The comment period for the Draft EA runs concurrently with the
comment period for this Proposed Rule. The Draft EA provides the
threshold environmental review for the temporary modification of the
MBDS. Information from the Draft EA is used in the above discussion of
the ocean dumping criteria.
The proposed action discussed in the Draft EA is the temporary
modification of the MBDS. The purpose of this proposed action is to
physically isolate potentially contaminated material dumped at the IWS
in the past by placing suitable dredged material generated during the
USACE's Boston Harbor maintenance and navigation projects. By covering
much or all of the barrel field in and around the historic IWS,
environmental conditions at the site will be improved.
USACE and EPA will continue to evaluate all federal dredged
material disposal projects in the MBDS pursuant to the EPA criteria set
forth in the Ocean Dumping Regulations (40 CFR 220-229) and the USACE
regulations (33 CFR 209.129 and 335-338). After compliance with
regulations is determined, USACE issues MPRSA permits to applicants for
the transport of dredged material intended for disposal. Under Section
103(c) of the MPRSA, EPA can disapprove or add conditions to a project
proposing the ocean disposal of dredged material if, in its judgement,
the relevant regulatory criteria would not be met.
The following alternatives were considered, but eliminated from
detailed evaluation, in the Draft EA:
1. Geographic Alternative 2: Expansion Into Historic IWS
This Geographic Alternative would have expanded the MBDS only to
the legal boundaries of the historic IWS. The modified site would
consist of two overlapping circles, both with a radius of 1 nmi
centered at 42[deg]25.1' N., 70[deg]35.0' W. (MBDS) and 42[deg]25.7'
N., 70[deg]35.0' W. (IWS). This Alternative would have increased the
size of the MBDS from 3.14 nmi\2\ to 4.13 nmi\2\. The western boundary
of the modified site would have been only 0.02 nmi from the SBNMS. It
also would not have included a large portion of the barrel field
located just north of its boundaries, leaving part of the Potential
Restoration Area with its waste barrels and potentially contaminated
sediment exposed on the seafloor. As a result, EPA rejected this
alternative.
2. Temporal Alternative 2: Expansion for Three Years
This Temporal Alternative would have limited the expansion of the
MBDS to a three-year period, opening with the publication of the Final
Rule for the site modification and closing exactly three years later.
The Boston Harbor Deep Draft Navigation Project is contingent on the
availability of funding, various approvals, technical planning,
weather, etc., making it difficult to estimate the duration of the
project. This uncertainty could lead to delays in the maintenance and
improvement dredging and cause the MBDS expansion to close before the
dredging project is complete. This could leave a portion of the
Potential Restoration Area uncovered. The remaining dredged material
would be disposed in the existing MBDS instead of being used
beneficially. For these reasons, EPA rejected this option.
3. Temporal Alternative 3: Permanent Expansion
This Temporal Alternative would permanently expand the boundaries
of the MBDS. The dredged material from the Boston Harbor maintenance
and navigation projects would be disposed in the expansion, covering
the Potential Restoration Area. Once that disposal is complete, the
expansion could be used in the future for dredged material generated in
other projects. Careful planning to ensure dredged material is not
disposed directly onto waste containers or potentially contaminated
seafloor sediment is necessary. In order to limit this risk, it would
be preferable to cease disposal in the expansion after the restoration
project in the event that individual barrels remain exposed. In
addition, EPA site selection criteria favor minimizing the size of
disposal sites, in general. See 40 CFR 228.5(d). Therefore, once the
potentially contaminated materials are covered, EPA favors changing
MBDS site boundaries back to their earlier configuration.
4. No Action Alternative
Under the No Action Alternative, the dredged material generated
during the Boston Harbor maintenance and improvement projects would not
be used beneficially to cover the barrel field in and around the
historic IWS. It would, instead, continue to be disposed in the
existing MBDS in multiple mounds.
5. Preferred Alternative
The Preferred Geographic and Temporal Alternative would expand the
boundaries of the MBDS for the entire duration of the Boston Harbor
Deep Draft Navigation Project. This temporary expansion consists of two
overlapping circles: 42[deg]25.1' N., 70[deg]35.0' W. with a 1 nautical
mile radius (MBDS) and 42[deg]26.417' N., 70[deg]35.373' W. with a 0.75
nautical mile radius (expansion). This area contains the entirety of
the Potential Restoration Area, which means that the barrel field can
be covered. Keeping the expansion open only during the Boston Harbor
maintenance and improvement projects ensures that all of the suitable
dredged material can be used beneficially over the Potential
Restoration Area and the area will not be subject to future disposal
with the potential to disturb potentially contaminated areas outside
the Potential Restoration Area. For these reasons, a site restriction
is being put in place directing that the expansion only be used for the
disposal of suitable dredged material from the Boston Harbor Deep Draft
Navigation Project using the berm-building technique designed by the
Corps and will automatically close upon the completion of that Project.
The Draft EA presents the information needed to evaluate the
suitability of the proposed modification and is based on a series of
disposal site environmental studies. The environmental studies and
final designation were and are being conducted in accordance with the
requirements of MPRSA, the Ocean Dumping Regulations, and other
applicable Federal environmental legislation.

B. Magnuson-Stevens Fishery Conservation & Management Act (MSA)

EPA has integrated the EFH assessment into the Draft EA, pursuant
to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act,
as amended (MSA), 16 U.S.C. 1801-1891d. EPA is coordinating with NMFS
to ensure compliance with EFH provisions and will attempt to
incorporate any conservation recommendations from NMFS.

C. Coastal Zone Management Act (CZMA)

EPA has determined that the proposed modification of the MBDS is
consistent to the maximum extent practicable with the enforceable
policies of the Massachusetts coastal management program and has
submitted this determination to the State for review in accordance with
the CZMA.

D. Endangered Species Act (ESA)

The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to
1544, requires Federal agencies to consult with NMFS and the Fish &
Wildlife

[[Page 44374]]

Service (FWS) 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 incorporated an assessment of the potential effects of temporarily
modifying the MBDS on aquatic and wildlife species, including any
species listed under the ESA, into the Draft EA, and EPA has submitted
that document to NMFS and FWS. EPA concluded that the proposed action
would not affect any threatened or endangered species, nor would it
adversely modify any designated critical habitat. EPA is coordinating
with NMFS and FWS to ensure compliance with the ESA.

E. National Historic Preservation Act (NHPA)

The National Historic Preservation Act, as amended (NHPA), 16
U.S.C. 470 to 470a-2, requires Federal agencies to take into account
the effect of their actions on districts, sites, buildings, structures,
or objects, included in, or eligible for inclusion in, the National
Register of Historical Places. EPA is coordinating with the
Massachusetts State Historic Preservation Officer (SHPO) to ensure
compliance with NHPA.

IV. Statutory and Executive Order Reviews

This rulemaking proposes the modification of an 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; 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 3, 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.
This proposed site modification does not require persons to obtain,
maintain, retain, report, or publically disclose information to or for
a Federal agency.

C. Regulatory Flexibility Act

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 (businesses, organizations, or
jurisdictions). EPA has determined that this proposed action will not
have a significant economic impact on 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 EPA policy to promote communications between the EPA
and State and local governments, EPA has coordinated with, and
specifically solicited comments from, State and local officials with
regard to this proposed action.

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. The modification of the MBDS 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.

G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866 and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

This proposed action is not subject to Executive Order 13211 (66 FR
28355) because it is not a ``significant regulatory action'' as defined
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards that are developed or adopted by voluntary consensus bodies.
The NTTAA directs the EPA to provide Congress, through OMB,
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 MBDS SMMP.
The EPA will not require the use of specific, prescribed analytic
methods for monitoring and managing the MBDS. EPA plans to allow the
use of any method, whether it constitutes a voluntary consensus
standard or not, that meets the monitoring and measurement criteria
discussed in the SMMP.

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

Executive Order 12898 (59 FR 7629) establishes federal executive
policy on environmental justice. Its main provision directs federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their

[[Page 44375]]

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. This action is expected to be protective of
human health because the potential contaminants within the Potential
Restoration Area will be isolated under a protective layer of sediment.
This should help prevent any accidental recovery of barrels by
fishermen and prevent contaminants from the historic disposal from
entering the food web. The EPA has assessed the overall protectiveness
of modifying the MBDS 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. Indeed, no adverse
impacts are expected. The proposed action is expected to improve
environmental conditions in Massachusetts Bay by enabling contaminated
material dumped at the IWS in the past to be covered with suitable
dredged material so as to isolate the former from the environment.

K. Executive Order 13158: Marine Protected Areas

Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources with the marine
environment, which includes, ``those areas of coastal and ocean waters,
the Great Lakes and their connecting waters, and submerged lands
thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
EPA anticipates that the proposed action will afford additional
protection to the waters of Massachusetts Bay and organisms that
inhabit them. By covering the barrel field and surrounding seafloor
sediment of the historic IWS, potential contaminants should be
prevented from entering the water column or food web in Massachusetts
Bay.

L. Executive Order 13547: Stewardship of the Ocean, Our Coasts, and the
Great Lakes

Section 6(a)(i) of Executive Order 13547, (75 FR 43023, July 19,
2010) requires, among other things, EPA and certain other agencies ``.
. . to the fullest extent consistent with applicable law [to] . . .
take such action as necessary to implement the policy set forth in
section 2 of this order and the stewardship principles and national
priority objectives as set forth in the Final Recommendations and
subsequent guidance from the Council.'' The policies in section 2 of
Executive Order 13547 include, among other things, the following: ``. .
. it is the policy of the United States to: (i) Protect, maintain, and
restore the health and biological diversity of ocean, coastal, and
Great Lakes ecosystems and resources; [and] (ii) improve the resiliency
of ocean, coastal, and Great Lakes ecosystems, communities, and
economies. . . . '' As with Executive Order 13158 (Marine Protected
Areas), the overall purpose of the Executive Order is to promote
protection of ocean and coastal environmental resources.
EPA anticipates that the proposed action will afford additional
protection to the waters of Massachusetts Bay and organisms that
inhabit them. By covering the barrel field and surrounding seafloor
sediment of the historic IWS, potential contaminants should be
prevented from entering the water column or food web in Massachusetts
Bay.

M. Executive Order 13771 Reducing Regulation and Controlling Regulatory
Costs

This proposed action would not be a ``significant regulatory
action'' under the terms of Executive Order 12866 (58 FR 51735, October
3, 1993) and is, therefore, not subject to review under Executive Order
13771. See OMB, ``Guidance Implementing Executive Order 13771, Titled
``Reducing Regulation and Controlling Regulatory Costs'' (M-17-21)
(April 5, 2017), p. 3 (``An `EO 13771 Regulatory Action' is: (i) A
significant regulatory action as defined in section 3(f) of EO 12866
that has been finalized and that imposes total costs greater than zero
. . . .'').

List of Subjects in 40 CFR Part 228

Environmental protection, Water pollution control.

Dated: September 6, 2017.
Deborah A. Szaro,
Acting Regional Administrator, EPA Region 1.
For the reasons stated in the preamble, title 40, Chapter I, of the
Code of Federal Regulations is proposed to be amended as set forth
below.

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. Amend Sec. 228.15 by revising paragraphs (b)(2)(i),)(ii), (iii),
and (vi) to read as follows:

Sec. 228.15 Dumping sites designated on a final basis.

* * * * *
(b) * * *
(2) * * *
(i) Location: Two overlapping circles: Center of existing MBDS:
42[deg]25.1' N., 70[deg]35.0' W., 1 nautical mile radius; Center of
temporary expansion: 42[deg]26.417' N., 70[deg]35.373' W., 0.75
nautical mile radius (NAD 1983).
(ii) Size: 4.60 sq. nautical miles.
(iii) Depth: Range from 70 to 91 meters.
* * * * *
(vi) Restriction: Disposal shall be limited to dredged material
which meets the requirements of the MPRSA and its accompanying
regulations. Disposal-and-capping is prohibited at the MBDS until its
efficacy can be effectively demonstrated. The temporary expansion of
the MBDS shall be used solely for the disposal of suitable dredged
material generated during the Boston Harbor Deep Draft Navigation
Project using the berm-building method devised and tested by the U.S.
Army Corps of Engineers. The temporary expansion will automatically
close upon completion of the Boston Harbor Deep Draft Navigation
Project.
* * * * *

[FR Doc. 2017-20326 Filed 9-21-17; 8:45 am]
BILLING CODE 6560-50-P

Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44369

opinion, the Register concluded that those it deems members. The benefits of Dated: September 18, 2017.
‘‘nothing in the statute limits the the regulation should apply to a [sic] Suzanne M. Barnett,
[Judges] from considering comments who fall into the Joint Sports Claimants Chief U.S. Copyright Royalty Judge.
filed by non-participants if those category.’’ Id. at 3. [FR Doc. 2017–20190 Filed 9–21–17; 8:45 am]
nonparticipant commenters argue that Although MLS generally states that BILLING CODE 1410–72–P
the proposed provisions are contrary to adoption of the proposal would be
statutory law.’’ Id. According to the unfair or inequitable to MLS and certain
Register’s Opinion, which is binding other omitted professional leagues that ENVIRONMENTAL PROTECTION
precedent for the Judges, the Judges may AGENCY
broadcast live team sports, MLS does
decline to adopt portions of the agreed
not expressly contend that the proposal
regulations that would be ‘‘contrary to 40 CFR Part 228
is ‘‘contrary to the provisions of the
the provisions of the applicable
applicable license(s) or otherwise [EPA–R01–OW–2017–0528; FRL–9967–82–
license(s) or otherwise contrary to Region 1]
contrary to statutory law,’’ which, under
statutory law.’’ Id.
The Judges received two comments on the Register’s Opinion, would permit
the Judges to decline to adopt portions Ocean Disposal; Temporary
the proposed rules before the June Modification of an Ocean Dredged
deadline. Joint Sports Claimants (JSC),4 of the agreed regulations. In the interests
Material Disposal Site in
participants and the proponents of the of developing a more complete record to
Massachusetts Bay
settlement, supported adoption of the support the Judges’ decision, however,
final rule and offered a correction of a the Judges seek further comment AGENCY: Environmental Protection
misstated cross reference within the specifically addressing the issue of Agency (EPA).
rule. whether they must adopt the rules as ACTION: Proposed rule.
Major League Soccer, L.L.C. (MLS) contained in the settlement agreement
also commented. In the present and published for comment in May SUMMARY: The Environmental Protection
proceeding, MLS did not file a Petition 2017, consistent with Section Agency (EPA) is proposing to approve a
to Participate; thus MLS is a not a 801(b)(7)(A) of the Copyright Act, or temporary modification of the currently-
participant.5 Nonetheless, MLS states whether any provision in the proposed designated Massachusetts Bay Dredged
rules is contrary to the provisions of the Material Disposal Site (MBDS) pursuant
that it would be ‘‘[a]ffected by these
to the Marine Protection, Research, and
proposed rules and their terms.’’ MLS applicable license(s) or otherwise
Sanctuaries Act, as amended (MPRSA).
Comment at 2. MLS contends that, even contrary to statutory law.
The purpose of this temporary site
though it is not a participant in this The Judges hereby solicit Reply modification is to allow for the
proceeding, it clearly meets the [Judges’] Comments limited to legal analysis of environmental restoration of a particular
description of ‘Joint Sports Claimants’ 6 the issue as the Judges express it. Any area adjacent to the currently-designated
in that MLS owns copyrights in ‘‘live party in interest may file Reply MBDS (Potential Restoration Area) by
telecasts of professional teams’ sports Comments addressing the issue the temporarily expanding the boundaries
broadcasts by U.S. and Canadian Judges present in this Notice. of the existing MBDS. The temporary
television stations. . . .’’ Id. As MLS expansion is a circular area that
Commenters that believe any provision
asserted in its comment, the definition contains the Potential Restoration Area,
of the proposed rules is contrary to the
of ‘‘eligible professional sports event’’ which includes most of the historic
provisions of the applicable license(s) or
‘‘unfairly excludes MLS, and any other Industrial Waste Site (IWS). Decades
otherwise contrary to statutory law
[unnamed] eligible, professional league ago, the IWS was used for the disposal
should specify the provision or
that broadcasts live team sports.’’ Id. at of barrels containing industrial,
3. In its comment, MLS contends that its provisions in question, explain why the
provision(s) is contrary to the applicable chemical and radioactive waste, as well
omission results in unfair treatment. Id. as for the disposal of munitions,
at 2, 4. license or applicable statutory law, and
provide supporting legal analysis. Reply ordnance, construction equipment, and
According to MLS, ‘‘[s]ince JSC are
commenters should focus particular contaminated dredged material. The
representatives for, and custodians of
attention on whether any entities not proposed modification of the disposal
the funds of, all programs falling within
expressly addressed in the proposal site boundary will enable the U.S. Army
that agreed [Joint Sports Claimants]
would nonetheless be bound by the Corps of Engineers (USACE) to place
category, [JSC] should represent the
rates and terms of the proposal or suitable dredged material from Boston
interests of the entire category, not only
otherwise affected by the proposed rules Harbor generated during the Deep Draft
and how, if at all, the affect should Navigation Project at the Potential
802(f)(1)(D). Decisions of the Register are binding as
precedent upon the Judges in proceedings dictate action by the Judges. If any Restoration Area in order to cover the
subsequent to the Register’s opinion. Id. entities other than those expressly barrels and other wastes disposed there
4 The Joint Sports Claimants (JSC) consists of
included in the proposed provisions are in the past. The Deep Draft Navigation
Major League Baseball, the National Basketball Project includes maintenance dredging
Association, the National Football League, the bound by the proposal, are the Judges
in the inner harbor, which includes the
National Hockey League, and the Women’s National effectively adopting a zero sports
Basketball Association. expansion of a confined aquatic
surcharge rate with respect to those
5 MLS asserted without evidence that it made disposal (CAD) cell and will generate
entities? If so, what factors justify the
‘‘attempts to join the JSC ‘‘on a formal basis,’’ but approximately 1 million cubic yards
that it had ‘‘not yet been recognized as a JSC different rates for the entities that would
(cy) of dredged material, as well as
member.’’ MLS Comment at 2. have a zero rate from those that would improvement dredging of the main ship
6 See Notice of Participant Groups . . . and
receive the proposed sports surcharge channel, which will generate
Scheduling Order, Consolidated Proceeding No. 14–
CRB–0010–CD (2010–13) (Nov. 25, 2015), Ex. A. By
rate? approximately 11 million cy of dredged
its terms, this order limited application of the Any commenter may thereafter file material. The existing MBDS will
agreed participant groups to the proceeding in
which it was adopted. The Judges nonetheless
Surreply Comments addressing continue to be used for disposal of other
consider the categories informative for purposes of specifically the legal analysis of a party dredging projects as usual. The
determining distribution in the present proceeding. or parties filing Reply Comments. expansion area would be permanently

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44370 Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules

closed upon completion of the Boston I. Potentially Affected Persons This will be accomplished utilizing a
Harbor maintenance and improvement The expansion of the MBDS is a method of disposal developed and
projects, while the existing MBDS will temporary modification made in order tested by the USACE, which is designed
remain open for the disposal of suitable to improve environmental conditions at to prevent direct impact of sediment
dredged material. Like the MBDS, the Potential Restoration Area by onto waste containers, which could
however, the expansion would be allowing suitable dredged material from potentially break them or cause the
subject to ongoing monitoring and the USACE Boston Harbor maintenance resuspension of potentially
management to ensure continued and improvement projects only to be contaminated sediment on the seafloor.
protection of the marine environment. placed over wastes dumped in the past Before any entity can dispose of
DATES: Comments must be received on at the historic IWS. Therefore, the dredged material at the MBDS, EPA and
or before October 23, 2017. persons potentially affected by this the USACE must evaluate the project
ADDRESSES: Submit your comments, action would be limited to the USACE, according to the ocean dumping
identified by Docket ID No. EPA–R01– who are responsible for the Boston regulatory criteria (40 CFR 227) and
OW–2017–0528, at https:// Harbor Deep Draft Navigation Project determine whether to authorize the
www.regulations.gov. Follow the online and the disposal of dredged material disposal. EPA independently evaluates
instructions for submitting comments. into ocean waters under MPRSA. The proposed disposal projects and has the
Once submitted, comments cannot be existing MBDS will continue to be used right to restrict and/or reject the
edited or removed from Regulations.gov. for the disposal of dredged material disposal of dredged material if it
The EPA may publish any comment suitable for ocean disposal pursuant to determines that the environmental
received to its public docket. Do not the MPRSA. protection requirements under the
submit electronically any information MPRSA have not been met. This
II. Background proposed modification to the MBDS site
you consider to be Confidential
Business Information (CBI) or other A. History of Disposal Sites in boundaries does not constitute an
information whose disclosure is Massachusetts Bay approval by EPA or USACE for open
restricted by statute. Multimedia The IWS is a disposal site in water disposal of dredged material from
submissions (audio, video, etc.) must be Massachusetts Bay approximately 20 any specific project.
accompanied by a written comment. nautical miles (nmi) east of Boston that B. Location and Configuration of
The written comment is considered the was used in the past for disposal of a Modified Ocean Dredged Material
official comment and should include variety of wastes that would not be Disposal Site
discussion of all points you wish to permitted for disposal today. The IWS is
make. The EPA will generally not EPA proposes the temporary
a circular cite with a center of 42°25.7′
consider comments or comment N., 70°35.0′ W. and a radius of 1 nmi. expansion of the MBDS boundaries to
contents located outside of the primary It is believed that disposal of derelict include the Potential Restoration Area,
submission (i.e., on the web, cloud, or vessels, construction debris, commercial which encompasses the IWS barrel
other file sharing system). For waste, and dredged material at the area field. The expansion will be temporary,
additional submission methods, the full may have begun as early as the early opening upon the effective date of the
EPA public comment policy, 1900s. There are records dating back to Final Rule and closing upon completion
information about CBI or multimedia the 1940s for the disposal of radioactive, of the Boston Harbor maintenance and
submissions, and general guidance on chemical and hospital waste, ordnance, improvement dredging projects. The
making effective comments, please visit munitions, etc. Use of the IWS was temporarily expanded site will consist
https://www2.epa.gov/dockets/ discontinued in 1977 and the site was of two overlapping circles:
commenting-epa-dockets. officially de-designated in 1990 (55 FR • Center 1—42°25.1′ N., 70°35.0′ W., 1
Docket: Publically available docket 3688). From 1977 through 1993, there nautical mile radius (existing MBDS)
materials are available either was an Interim Massachusetts Bay • Center 2—42°26.417′ N., 70°35.373′
electronically at regulations.gov or on Disposal Site for dredged material W., 0.75 nautical mile radius
the EPA Region 1 Ocean Dumping Web disposal with a center 1 nmi east of the (temporary expansion)
page at https://www.epa.gov/ocean- IWS at 42°25.7′ N., 70°34.0′ W. and a The area of the temporarily modified
dumping/managing-ocean-dumping- radius of 1 nmi. In 1993, the existing MBDS is 4.60 nmi2 and the western
epa-region-1. They are also available in MBDS was designated by EPA with a edge is approximately 19 nmi east of
hard copy during normal business hours center at 42°25.1′ N., 70°35.0′ W. and a Boston. Water depths at the modified
at the EPA Region 1 Library, 5 Post radius of 1 nmi, an area of 3.14 nmi2, site range from 70 to 91m. Like the
Office Square, Boston, MA 02109. and depth ranges from 82 to 92 m. The existing MBDS, the modified MBDS will
The supporting document for this site MBDS overlaps the IWS to the south, not overlap, and is not expected to
modification is the Draft Environmental but avoids the known densest impact, the Stellwagen Bank National
Assessment on the Expansion of the concentration of barrels, also known as Marine Sanctuary (SBNMS).
Massachusetts Bay Ocean Dredged the barrel field. The MBDS is used
Material Disposal Site (ODMDS), C. Management and Monitoring of the
solely for the disposal of dredged
September 2017, which was prepared by Site
material, primarily from Boston Harbor.
EPA. The USACE will begin the Boston Under the proposal, there would be
FOR FURTHER INFORMATION CONTACT: Harbor maintenance and improvement two distinct areas of the modified
Alicia Grimaldi, U.S. Environmental dredging projects in the fall of 2017. The MBDS: The existing MBDS and the
Protection Agency, Region 1, 5 Post project is expected to generate temporary expansion. The existing
Office Square, Suite 100, Mail Code: approximately 12 million cubic yards of MBDS will continue to be utilized as a
OEP 6–1, Boston, MA 02109; dredged material consisting primarily of dredged material disposal site for those
telephone—(617) 918–1806; fax—(617) Boston blue clay. EPA and USACE are projects generating dredged material
918–0806; email address— proposing to use this dredged material suitable for open water disposal under
grimaldi.alicia@epa.gov. beneficially by covering the area in and the MPRSA. The temporary expansion
SUPPLEMENTARY INFORMATION: around the historic IWS barrel field. will solely be used for the disposal of

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Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules 44371

suitable material generated during the overlap with the shipping lanes into and The continental shelf is over 220 nmi
Boston Harbor maintenance and out of Boston Harbor. east of Boston. Therefore, transporting
improvement dredging projects. (b) Locations and boundaries of material to, and performing long-term
Disposal of dredged material in both the disposal sites will be so chosen that monitoring at, a site located off the
existing MBDS and temporary temporary perturbations in water continental shelf is not economically or
expansion would be required to abide quality or other environmental operationally feasible. The project area
by the Site Management and Monitoring conditions during initial mixing caused has been used for ocean disposal since
Plan (SMMP) for the MBDS. The SMMP by disposal operations anywhere within at least the early 1900s.
includes management and monitoring the site can be expected to be reduced
to normal ambient seawater levels or to 2. Specific Criteria (40 CFR 228.6(a))
requirements to ensure that the any
dredged material placed at the sites is undetectable contaminant (1) Geographical position, depth of
suitable for ocean disposal and that the concentrations or effects before reaching water, bottom topography and distance
adverse impacts of disposal, if any, are any beach, shoreline, marine sanctuary, from coast.
addressed to the maximum extent or known geographically limited fishery The temporarily expanded MBDS is
practicable. The SMMP for the MBDS or shellfishery. located in an area of Massachusetts Bay
includes restrictions on time-of-year for The modified MBDS will be used only known as Stellwagen Basin and is
disposal and disposal vessel speeds, for dredged material suitable for ocean approximately 8 nmi from the nearest
requirements for the presence of a disposal under the MPRSA. USACE also coastline in Gloucester, MA. The depth
marine mammal observer for each models disposal projects to evaluate of the temporarily expanded site ranges
disposal event, and other guidelines to their potential to violate water quality from 70–91 meters. The seafloor in the
minimize any potential conflicts with standards. The nearest shoreline to the area is primarily flat and primarily
threatened or endangered species. modified MBDS is approximately 8 nmi made up of silt and clay. There are two
to the north. The prevailing current is glacial knolls included within the
D. MPRSA Criteria not expected to transport dredged boundaries of the temporary expansion,
EPA has assessed the proposed material to surrounding beaches or both roughly 20 m high. These knolls
temporary modification to the MBDS shores. Temporary changes caused by are not included in the Potential
according to the criteria of the MPRSA, the physical movement of sediment Restoration Area and, therefore, no
through the water column will be disposal will take place on them.
with particular emphasis on the general
reduced to ambient conditions before
and specific regulatory criteria of 40 (2) Location in relation to breeding,
reaching any environmentally sensitive
CFR 228.5 and 228.6, to determine spawning, nursery, feeding, or passage
area. SBNMS is immediately east of the
whether the proposed site modification areas of living resources in adult or
site, but a steep bathymetric rise
satisfied those criteria. The Draft juvenile phases.
between the two features provides
Environmental Assessment of the The MBDS area contains Essential
containment of dredged material in the
Expansion of the Massachusetts Bay Fish Habitat (EFH) for various fish
deeper area containing the modified
Ocean Dredged Material Disposal Site species, and certain threatened and
MBDS, known as Stellwagen Basin.
(ODMDS) provides an extensive endangered species of whale and sea
There are no known geographically-
evaluation of the site selection criteria limited fisheries or shellfisheries in the turtle have been sighted in the vicinity
and other related factors considered in project area. of the MBDS. Furthermore, the entirety
deciding to propose the modification of (d) The sizes of ocean disposal sites of Massachusetts Bay, and most of the
the MBDS. will be limited in order to localize for larger Gulf of Maine, are designated as
identification and control any a critical foraging habitat for the North
1. General Criteria (40 CFR 228.5)
immediate adverse impacts and permit Atlantic Right Whale by NMFS. At the
(a) The dumping of materials into the the implementation of effective same time, NMFS has previously
ocean will be permitted only at sites or monitoring and surveillance programs determined that dredged material
in areas selected to minimize the to prevent adverse long-range impacts. disposal at the MBDS would not impact
interference of disposal activities with The size, configuration, and location of any of these species and restrictions are
other activities in the marine any disposal site will be determined as in place to ensure their safety, including
environment, particularly avoiding a part of the disposal site evaluation or vessel speed and disposal time-of-year
areas of existing fisheries or designation study. limitations and the requirement that
shellfisheries, and regions of heavy The size and configuration of the marine mammal observers accompany
commercial or recreational navigation. temporarily modified MBDS is the USACE on vessels during disposal
Since it’s designation in 1993, specifically designed to allow for the operations. Furthermore, any risk of
disposal at the MBDS has not interfered IWS barrel field to be covered by contaminants entering the food web is
with other activities in the marine suitable dredged material generated expected to be minimized by the
environment. It is anticipated that this during the USACE Boston Harbor covering of the IWS barrel field.
will also be the case for the temporarily maintenance and improvement projects. (3) Location in relation to beaches
modified MBDS. The IWS has been The MBDS area has been monitored and other amenity areas.
closed by the National Oceanic and under the USACE Disposal Area The closest beach to the temporarily
Atmospheric Administration’s (NOAA) Monitoring System (DAMOS) program expanded MBDS is 10 nmi away. The
National Marine Fisheries Service since the late 1970s. Monitoring will SBNMS is just east of the MBDS. Past
(NMFS) since 1980 to the harvesting of continue at the MBDS and temporary dredged material disposal has not
surf clams and ocean quahogs. There is expansion to prevent adverse long-range impacted the SBNMS and no impact to
also a warning from NOAA and the impacts. the SBNMS is expected with the
Food and Drug Administration (FDA) on (e) EPA will, wherever feasible, temporary expansion of the MBDS.
all nautical charts against harvesting designate ocean dumping sites beyond (4) Types and quantities of wastes
fish and shellfish in the area. The the edge of the continental shelf and proposed to be disposed of, and
expanded MBDS area has low other such sites that have been proposed methods of release, including
recreational boater density and does not historically used. methods of packing the waste, if any.

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44374 Federal Register / Vol. 82, No. 183 / Friday, September 22, 2017 / Proposed Rules

Service (FWS) to ensure that any action C. Regulatory Flexibility Act distribution of power and
authorized, funded, or carried out by the The Regulatory Flexibility Act (RFA) responsibilities between the federal
Federal agency is not likely to generally requires Federal agencies to government and Indian Tribes. Thus,
jeopardize the continued existence of prepare a regulatory flexibility analysis Executive Order 13175 does not apply
any endangered species or threatened of any rule subject to notice and to this action.
species or result in the destruction or comment rulemaking requirements G. Executive Order 13045: Protection of
adverse modification of any critical under the Administrative Procedure Act Children From Environmental Health &
habitat. The EPA incorporated an or any other statute unless the agency Safety Risks
assessment of the potential effects of certifies that the rule will not have a
temporarily modifying the MBDS on significant economic impact on a This action is not subject to Executive
aquatic and wildlife species, including substantial number of small entities Order 13045 because it is not
any species listed under the ESA, into (businesses, organizations, or economically significant as defined in
the Draft EA, and EPA has submitted jurisdictions). EPA has determined that Executive Order 12866 and because the
that document to NMFS and FWS. EPA this proposed action will not have a EPA does not believe the environmental
concluded that the proposed action significant economic impact on small health or safety risks addressed by this
would not affect any threatened or entities. action present a disproportionate risk to
endangered species, nor would it children.
adversely modify any designated critical D. Unfunded Mandates Reform Act
H. Executive Order 13211: Actions That
habitat. EPA is coordinating with NMFS This proposed action contains no Significantly Affect Energy Supply,
and FWS to ensure compliance with the Federal mandates under the provisions Distribution, or Use
ESA. of Title II of the Unfunded Mandates
Reform Act (UMRA) of 1995, 2 U.S.C. This proposed action is not subject to
E. National Historic Preservation Act 1531 to 1538, for State, local, or tribal Executive Order 13211 (66 FR 28355)
(NHPA) governments or the private sector. This because it is not a ‘‘significant
action imposes no new enforceable duty regulatory action’’ as defined under
The National Historic Preservation Executive Order 12866.
Act, as amended (NHPA), 16 U.S.C. 470 on any State, local or tribal governments
to 470a–2, requires Federal agencies to or the private sector. Therefore, this I. National Technology Transfer and
take into account the effect of their action is not subject to the requirements Advancement Act
actions on districts, sites, buildings, of sections 202 or 205 of the UMRA.
Section 12(d) of the National
structures, or objects, included in, or This action is also not subject to the
Technology Transfer and Advancement
eligible for inclusion in, the National requirements of section 203 of the
Act of 1995 (‘‘NTTAA’’), Public Law
UMRA because it contains no regulatory
Register of Historical Places. EPA is 104–113, 12(d) (15 U.S.C. 272), directs
requirements that might significantly or
coordinating with the Massachusetts the EPA to use voluntary consensus
uniquely affect small government
State Historic Preservation Officer standards in its regulatory activities
entities. Those entities are already
(SHPO) to ensure compliance with unless to do so would be inconsistent
subject to existing permitting
NHPA. with applicable law or otherwise
requirements for the disposal of dredged
material in ocean waters. impractical. Voluntary consensus
IV. Statutory and Executive Order
standards are technical standards that
Reviews E. Executive Order 13132: Federalism are developed or adopted by voluntary
This rulemaking proposes the This proposed action does not have consensus bodies. The NTTAA directs
modification of an ODMDS pursuant to federalism implications. It does not the EPA to provide Congress, through
Section 102 of the MPRSA. This have substantial direct effects on the OMB, explanations when the Agency
proposed action complies with States, on the relationship between the decides not to use available and
applicable Executive Orders and national government and the States, or applicable voluntary consensus
statutory provisions as follows: on the distribution of power and standards. This proposed action
responsibilities among various levels of includes environmental monitoring and
A. Executive Order 12866: Regulatory government, as specified in Executive measurement as described in the MBDS
Planning and Review; Executive Order Order 13132. Thus, Executive Order SMMP. The EPA will not require the
13563: Improving Regulation and 13132 does not apply to this action. In use of specific, prescribed analytic
Regulatory Review the spirit of Executive Order 13132, and methods for monitoring and managing
consistent with EPA policy to promote the MBDS. EPA plans to allow the use
This proposed action is not a
communications between the EPA and of any method, whether it constitutes a
‘‘significant regulatory action’’ under
State and local governments, EPA has voluntary consensus standard or not,
the terms of Executive Order 12866 (58
coordinated with, and specifically that meets the monitoring and
FR 51735, October 3, 1993) and is,
solicited comments from, State and measurement criteria discussed in the
therefore, not subject to review under
local officials with regard to this SMMP.
Executive Orders 12866 and 13563 (76
proposed action.
FR 3821, January 21, 2011). J. Executive Order 12898: Federal
F. Executive Order 13175: Consultation Actions To Address Environmental
B. Paperwork Reduction Act and Coordination With Indian Tribal Justice in Minority Populations and Low
This action does not impose an Governments Income Populations
information collection burden under the This proposed action does not have Executive Order 12898 (59 FR 7629)
provisions of the Paperwork Reduction tribal implications, as specified in establishes federal executive policy on
Act, 44 U.S.C. 3501 et seq. This Executive Order 13175. The environmental justice. Its main
proposed site modification does not modification of the MBDS will not have provision directs federal agencies, to the
require persons to obtain, maintain, a direct effect on Indian Tribes, on the greatest extent practicable and
retain, report, or publically disclose relationship between the federal permitted by law, to make
information to or for a Federal agency. government and Indian Tribes, or on the environmental justice part of their

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Document Created: 2017-09-22 01:52:16
Document Modified: 2017-09-22 01:52:16

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Comments must be received on or before October 23, 2017.
Contact		Alicia Grimaldi, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Mail Code: OEP 6-1, Boston, MA 02109; telephone--(617) 918-1806; fax--(617)
FR Citation		82 FR 44369
CFR Associated		Environmental Protection and Water Pollution Control