[Federal Register Volume 83, Number 103 (Tuesday, May 29, 2018)]
[Rules and Regulations]
[Pages 24408-24414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11322]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R01-OW-2017-0528; FRL-9978-51--Region 1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is approving a 
temporary modification of the boundaries of the Massachusetts Bay 
Dredged Material Disposal Site (MBDS) pursuant to the Marine 
Protection, Research, and Sanctuaries Act (MPRSA), as amended. The 
purpose of this temporary site modification is to allow for the 
environmental restoration of a particular area adjacent to the 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 low-level 
radioactive waste, as well as for the disposal of munitions, ordnance, 
construction equipment, and contaminated dredged material. The 
modification of the disposal site boundary will enable the U.S. Army 
Corps of Engineers (USACE) to place suitable dredged material generated 
from the Boston Harbor Deep Draft Navigation Project at the Potential 
Restoration Area in order to cover the barrels and other wastes 
disposed there in the past. This is expected to improve environmental 
conditions at the site. The Deep Draft Navigation Project includes 
improvement dredging of the main ship channel, which will generate 
approximately 11 million cubic yards (cy) of dredged material. The 
existing MBDS will continue to be used for disposal of other dredging 
projects, as usual. The expansion area will permanently close upon 
completion of the Boston Harbor Deep Draft Navigation Project, while 
the existing MBDS will remain open for the disposal of other suitable 
dredged material. Like the MBDS, however, the expansion area will be 
subject to ongoing monitoring and management to monitor the recovery of 
the area and to ensure continued protection of the marine environment.

DATES: The effective date of this rule is June 28, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R01-OW-2017-0528. All documents in the docket are 
listed on the https://www.regulations.gov website or on the EPA Region 
1 MBDS web page at https://www.epa.gov/ocean-dumping/massachusetts-bay-industrial-waste-site-restoration-project. Although listed in

[[Page 24409]]

the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through https://www.regulations.gov. 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 Final 
Environmental Assessment on the Proposed Expansion of the Massachusetts 
Bay Ocean Dredged Material Disposal Site and Finding of No Significant 
Impact, May 2018, 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 
improvement project to be placed over wastes dumped in the past at the 
historic IWS. The USACE are persons potentially affected by this 
action, as they 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 from other projects that is suitable for 
ocean disposal pursuant to the MPRSA. This action will also impact 
those fishermen who utilize the historic IWS for fishing, despite 
posted warnings, by helping to reduce the risk of potential injury 
resulting from the inadvertent retrieval of wastes from the IWS in 
their nets. There have been documented instances of fishermen trawling 
up barrels in the IWS area and this action will lower the risk of that 
occurring in the future.

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 site with its center at 
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 in the early 
1900s. There are records dating back to the 1940s documenting 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, February 2, 1990). 
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 meters (m). The MBDS overlaps the southern portion 
of the IWS, 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, but also from smaller 
harbors and navigation channels north and south of Boston.
    The USACE will begin the Boston Harbor improvement dredging project 
in 2018. The project is expected to generate approximately 11 million 
cy of suitable dredged material consisting primarily of Boston blue 
clay and glacial till. EPA and USACE are proposing to use this dredged 
material beneficially by covering the area in and around the historic 
IWS barrel field to a depth of one to two meters. 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. This method of disposal is intended to reduce the 
risk of breaking barrels and resuspending potentially contaminated 
seafloor sediment.
    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. Under Section 103 of the MPRSA, disposal projects are 
authorized by the USACE and 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 
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. Thus, although the plan is that suitable 
material from the USACE's Boston Harbor improvement project would be 
placed at the temporary expansion area, any material proposed for 
disposal will have to go through project-specific review and approval.

b. Location and Configuration of the Modified Ocean Dredged Material 
Disposal Site

    This Final Rule temporarily modifies the MBDS by expanding it 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 Deep Draft Navigation Project. The temporarily expanded 
site will consist of two partially 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 91 m. Like the existing MBDS, the 
modified MBDS will not overlap, and is not expected to impact, the 
Stellwagen Bank National Marine Sanctuary (SBNMS).

c. Response to Comments

    On September 22, 2017, EPA published a Proposed Rule proposing to 
temporarily modify the MBDS with a supporting Draft Environmental 
Assessment and opened a public comment period under Docket ID EPA-R01-
OW-2017-0528. The comment period ended on October 23, 2017. EPA 
received eleven comments on the Proposed Rule and Draft Environmental 
Assessment. The comments received are listed below:
     Support of the temporary expansion of the MBDS (6 
commenters);
     Boundaries of the temporary expansion of the MBDS overlap 
with the Neptune Deepwater Port (1 commenter);
     Importance of proceeding with disposal carefully to 
prevent breakage of barrels (4 commenters);
     Barrels may no longer exist on the seafloor (1 commenter);
     Sewage sludge should not be disposed in the ocean or used 
for capping (1 commenter);

[[Page 24410]]

     There is no evidence of contamination at the IWS (1 
commenter);
     Disposing material further out into the ocean is a cheaper 
solution (1 commenter);
     Other disposal sites were not considered (1 commenter);
     The temporary expansion of the MBDS will eliminate 
fishable bottom (2 commenters);
     How to stay informed on the status of the project (2 
commenters);
     Disposal could impact the health of the ecosystem (1 
commenter);
     Typographic errors in Draft EA (1 commenter);
     Modification of the MBDS will change the size of the SBNMS 
(1 commenter);
     The Potential Restoration Area will increase with 
additional dredged material (1 commenter);
     The removal of barrels from the IWS was not considered as 
an alternative (2 commenters);
     Ensure that the disposal of dredged material and the 
temporary expansion is monitored (2 commenters);
     The Massachusetts Department of Marine Fisheries (MDMF) 
would like to consult on disposal time-of-year restrictions to minimize 
impact to cod spawning (1 commenter); and
     MDMF would like the USACE and EPA to continue 
participating in a working group exploring other opportunities for 
beneficial use of dredged material (1 commenter).
    The responses to these comments can be found in the Final 
Environmental Assessment on the Proposed Expansion of the Massachusetts 
Bay Ocean Dredged Material Disposal Site and Finding of No Significant 
Impact, which is available on Regulations.gov and the EPA Region 1 MBDS 
web page: https://www.epa.gov/ocean-dumping/massachusetts-bay-industrial-waste-site-restoration-project.

d. Management and Monitoring of the Site

    There will 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 be used solely for the disposal of 
suitable dredged material generated from the Boston Harbor improvement 
dredging project. Management of both the existing MBDS and the 
temporary expansion will 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 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 and other uses or 
activities in this area.

e. MPRSA Criteria

    EPA has assessed the 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 site modification satisfies those criteria. The 
Final Environmental Assessment of the Proposed Expansion of the 
Massachusetts Bay Ocean Dredged Material Disposal Site and Finding of 
No Significant Impact provides an extensive evaluation of the site 
selection criteria and other related factors considered for the 
modification of the MBDS, and a summary is included below.
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 its designation in 1993, disposal at the MBDS has not 
interfered with other activities in the marine environment. It is 
anticipated that this also will 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 eight 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. The 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 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 
improvement project. The MBDS area has been monitored under the USACE 
Disposal Area Monitoring System (DAMOS) program since the late 1970s. 
Monitoring will continue at the temporarily expanded MBDS 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. Moreover, taking material somewhere off the 
continental shelf will not help to isolate the wastes previously placed 
at the IWS. The

[[Page 24411]]

project area has been used for ocean disposal since at least the early 
1900s.
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 eight 
nmi from the nearest coastline in Gloucester, MA. The depth of the 
temporarily expanded site ranges from 70-91 m. The seafloor in the area 
is primarily flat and consists primarily of silt and clay. There are 
two large 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. There is a smaller glacial knoll, 
approximately six m high, included within the boundaries of the 
Potential Restoration Area. The USACE is drafting a project design that 
will ensure that this feature will be avoided by disposal operations.
    (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 species of whale and sea turtle listed as 
either threatened or endangered under the Endangered Species Act (ESA) 
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 critical foraging habitat for the North Atlantic Right 
Whale by NMFS. At the same time, NMFS has 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 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.
    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 improvement project. 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 improvement project 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 at the MBDS 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, when the existing MBDS was designated following all the 
requirements of the MPRSA and National Environmental Policy Act (NEPA). 
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 Final 
Environmental Assessment on the Proposed Expansion of the Massachusetts 
Bay Ocean Dredged Material Disposal Site and Finding of No Significant 
Impact. 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 
suitable dredged material generated during the USACE Boston Harbor 
improvement project 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 temporarily expanding the MBDS is not expected to 
interfere with these activities either. 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 are 
not expected to interfere with any existing fishing activity. To the 
extent that fishermen ignore the warnings regarding the IWS, the 
proposed action will not create any greater interference because, as 
stated above, both fishing and dredged material disposal activities 
have long been carried out in the area of the MBDS without 
interference. Moreover, once the IWS barrel field is covered, the area 
should be safer for any fishermen who drag their nets through that 
area.
    (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

[[Page 24412]]

characteristics in the disposal site and adjacent reference areas. A 
Baseline Seafloor Assessment Survey for the Proposed Expansion of the 
Massachusetts Bay Disposal Site was completed by the USACE in 
anticipation of this project and is available on the USACE DAMOS 
webpage 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 general 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. 
When a federal agency evaluates an action that it plans to take and 
finds that it will not significantly affect the environment, it may 
issue an Environmental Assessment and a Finding of No Significant 
Impact (i.e., an ``EA/FONSI'').
    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 temporary 
expansion of the MBDS is the Final Environmental Assessment on the 
Proposed Expansion of the Massachusetts Bay Ocean Dredged Material 
Disposal Site and Finding of No Significant Impact (Final EA), prepared 
by EPA in cooperation with USACE. Anyone desiring a copy of the Final 
EA may obtain one using the methods provided above in the Docket 
section. The Draft Environmental Assessment on the Expansion of the 
Massachusetts Bay Ocean Dredged Material Disposal Site (ODMDS) (Draft 
EA) was released for public review concurrently with the Proposed Rule. 
The Final EA, which is part of the Docket for this action, provides the 
environmental review for the temporary modification of the MBDS. 
Information from the Final EA is used in the above discussion of the 
ocean dumping criteria.

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

    EPA 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, and submitted that assessment to 
NMFS on September 28, 2017. NMFS responded via letter with a 
recommendation to avoid disposal on the glacial knoll that is within 
the boundaries of the Potential Restoration Area. EPA and USACE have 
adopted this recommendation and will avoid the disposal of any dredged 
material on this feature. This recommendation has also been 
incorporated into the Final EA.

c. Coastal Zone Management Act (CZMA)

    EPA determined that the modification of the MBDS is consistent to 
the maximum extent practicable with the enforceable policies of the 
Massachusetts coastal management program, and a letter was submitted to 
the Massachusetts Office of Coastal Zone Management (MCZM) on September 
28, 2017. MCZM submitted a letter of concurrence to EPA on November 30, 
2017.

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 U.S. Fish 
and Wildlife 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 assessment to NMFS and FWS. EPA 
concluded that this action is not likely to adversely affect any 
threatened or endangered species, nor would it adversely modify any 
designated critical habitat. EPA submitted a letter to NMFS on October 
30, 2017, that stated that the re-initiation of consultation was not 
necessary for this action. NMFS submitted a letter of concurrence to 
EPA on November 21, 2017. EPA sent a letter to FWS on September 22, 
2017, and confirmed that no consultation was necessary.

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 submitted a letter to the 
Massachusetts State Historic Preservation Office (SHPO) on September 
28, 2017, outlining the plan to avoid the historic shipwrecks in the 
area during disposal operations. The Massachusetts SHPO provided a 
letter of concurrence with the avoidance plan to EPA on October 19, 
2017.

IV. Statutory and Executive Order Reviews

    This rulemaking proposes the modification of an ODMDS pursuant to 
Section 102 of the MPRSA. This action complies with applicable 
Executive Orders and statutory provisions as follows:

[[Page 24413]]

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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 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 temporary site modification does not require persons to obtain, 
maintain, retain, report, or publicly 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 action will not have a 
significant economic impact on small entities.

d. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 to 1538, for state, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any state, local 
or tribal governments or the private sector. Therefore, this action is 
not subject to the requirements of sections 202 or 205 of the UMRA. 
This action is also not subject to the requirements of section 203 of 
the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small government entities. Those 
entities are already subject to existing permitting requirements for 
the disposal of dredged material in ocean waters.

e. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. Thus, Executive Order 13132 does not apply to 
this action. In the spirit of Executive Order 13132, and consistent 
with 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 action.

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

    This 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 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

    This rulemaking does not involve technical standards and, 
therefore, the National Technology Transfer and Advancement Act does 
not apply.

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

    Executive Order 12898 (59 FR 7629) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The EPA determined that this action 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 it will enable the wastes 
already within the Potential Restoration Area to 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. 
No adverse impacts are expected. The action is, instead, 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 in order 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 this 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. This should provide, 
if anything, greater protection for the natural resources of the SBNMS, 
which is in the vicinity of the temporarily expanded MBDS.

[[Page 24414]]

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 this 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 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 `E.O. 13771 Regulatory Action' is: (i) A significant 
regulatory action as defined in section 3(f) of E.O. 12866 that has 
been finalized and that imposes total costs greater than zero. . . 
.'').

n. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a major rule as defined by 5 U.S.C. 
804(2). This rule will be effective 30 days after date of publication.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: May 15, 2018.
Alexandra Dapolito Dunn
Regional Administrator, EPA Region 1.

    For the reasons stated in the preamble, title 40, Chapter I, of the 
Code of Federal Regulations is 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. 2018-11322 Filed 5-25-18; 8:45 am]
 BILLING CODE 6560-50-P


