[Federal Register Volume 82, Number 183 (Friday, September 22, 2017)]
[Proposed Rules]
[Pages 44369-44375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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