RETURN TO SER AR INDEX
Superfund Records
gj'pp AJlO'lScd ?—
Center
ppflV".
tj. 1
U.S. EPA I NEW BEDFORD HARBOR SUPERFUND SITE STATE ENHANCED REMEDY
LEARN MORE AT:www.epa.gov/nbh
Draft Determination for the Proposed
South Terminal Project
For the Commonwealth of Massachusetts'
Request to Include Construction of a
Confined Disposal Facility as Part of
the State Enhanced Remedy
PROPOSAL:
The Commonwealth of Massachusetts has requested that EPA include construction of a
Confined Disposal Facility ("CDF") as part of the State Enhanced Remedy ("SER"). The
SER is already incorporated into the 1998 Record of Decision for the Upper and Lower
Harbor at the New Bedford Harbor Superfund Site (1998 ROD); and, until now, the SER
consisted of navigational dredging and disposal of dredged sediment in Confined Aquatic
Disposal facilities (CADs). This would be the first time navigational dredged material
would be disposed of in a CDF in New Bedford Harbor. The Commonwealth's proposal
includes navigational dredging of approximately 44.94 acres of waters in New Bedford
Harbor, and filling of approximately 0.18 acres of salt marsh, 0.1 of freshwater wetlands,
and 6.67 acres of other Harbor waters with navigational dredged material, in order to
construct a multi-purpose marine terminal, the primary purpose of which will be to
provide critical infrastructure to serve offshore renewable energy facilities and accom-
modate international shipping. The proposal also involves dredging to construct an 8.76
acre Confined Aquatic Disposal Cell (CAD) to be used for disposal of navigational dredged
material and to fill and cap portions of previously constructed CADs.
YOUR OPINION COUNTS:
PUBLIC MEETINGS
EPA and the Commonwealth are holding two meetings to discuss this draft decision.
Public Informational Meeting
July 24, 2012 from 6:00 - 7:30 pm
Fort Taber Community Center, New Bedford
A Formal Public Hearing will be held immediately following the Public Informational meet-
ing from 7:30-9:00 pm at the same location at which time oral public comments will be
accepted. Portuguese and Spanish interpreter(s) will be available at both meetings.
KEY CONTACTS:
KELSEY O'NEIL
U.S. EPA Community
Involvement Coordinator
(617) 918-1799
oneil.kelsey@epa.gov
GENERAL INFO:
EPA NEW ENGLAND
5 Post Office Sq..
Suite 100
Boston. MA 02109-3912
TOLL-FREE
CUSTOMER SERVICE
1-888-EPA-7341
COMMENT PERIOD:
Jul 16 - Aug 21
Send postmarked or dated
no later than 8/21/12;
email;
South-Terminal-Draft-
Commervts@epa.gov
In writing to:
Elaine Stanley,
EPA New England
5 Post Office Sq, Ste 100
Mail Code OSRR07-4
Boston, MA 02109-3912
continued >
0% United States
jbpWi Environmental Protection
LbI m mAgency
SDMS DocID 509463
July 16 • 2012
-------
COMMENT PERIOD:
EPA will accept public comments during a 30-day formal comment period. EPA considers and uses these
comments to improve its Draft Determination. During the formal comment period, EPA will accept writ-
ten comments via mail, email, and fax. Additionally, verbal comments may be made during the formal
Public Hearing on July 24, 2012 during which a stenographer will record all offered comments during the
Hearing. EPA will not respond to your comments at the formal Public Hearing but will hold an informa-
tional.meeting prior to the start of the formal Public Hearing.
Provide EPA with your written comments by email or mail postmarked no later than Tuesday, August 21,2012:
Email to: South-Terminal-Draft-Comments@epa.gov
In writing to:
Elaine Stanley, EPA New England
5 Post Office Square, Suite 100
Mail Code OSRR07-4
Boston, MA 02109-3912
EPA will review the transcript of all formal comments received at the Hearing and all written comments
received during the formal comment period, before making a final determination about the proposed
South Terminal Project. EPA will then prepare a written response to all the formal written and oral com-
ments received. Your formal comment will become part of the official public record. The transcript of
comments and EPA's written responses will be issued in a document called a Responsiveness Summary
when EPA releases the Final Determination. The Responsiveness Summary and the Final Determination
will be made available to the public on the New Bedford Harbor Superfund web site (www.epa.gov/
nbh), at the New Bedford Public Library, and at the EPA Records Center. EPA will announce the release
of the Final Determination through the local media and via the Harbor web site.
EPA will be accepting public comment on this Draft Determination from July 16, 2012 through August 21, <
2012. You don't have to be a technical expert to comment. If you have a concern or suggestion regarding
EPA's draft determination, EPA wants to hear from you before making a final determination on the Com-
monwealth's request. EPA is also requesting public comment concerning its specific draft wetland and
floodplain determinations and its use of two separate draft risk-based determinations concerning contain-
ment of low-level polychlorinated biphenyls (PCBs). See discussion beginning on page 9 for more details on
these draft findings and determinations. Comments can be sent by mail or e-mail. People can also offer oral
or written comments at the formal public hearing (see page 2 for details). If you have specific needs for the
public meetings, questions about the meeting facility and its accessibility, or questions about how to com-
ment, please contact Kelsey O'Neil at 617-918-1799 or oneil.kelsey@epa.gov.
For detailed information about this Project and additional information that EPA considered in making its
Draft Determination, see the Administrative Record for this South Terminal Project available for review
as of July 23, 2012, at the New Bedford Public Library,613 Pleasant Street, 2nd floor Reference Depart-
ment, New Bedford, MA (508) 961-3067 and the EPA New England Records Center, 5 Post Office Square,
1st floor, Boston, MA (617) 918-1440 or online at www.epa.gov/nbh. The Administrative Records for the
New Bedford Harbor Superfund Site are incorporated by reference into this Administrative Record and
may be viewed at the same locations.
EPA Draft Determination for the Proposed South Terminal Project
page 2
-------
The Draft Determination At A Glance...
The Commonwealth has submitted to EPA a detailed proposal concerning the State Enhanced Remedy
("SER") that was approved and integrated into the 1998 Record of Decision ("1998 ROD") for New
Bedford Harbor. This new proposal increases the scope and detail of the SER as set forth in the ROD, but
does not fundamentally change the approved SER. Because of this increase in scope and detail, EPA is
evaluating the proposal to ensure it is consistent with the regulations at 40 C.F.R. 300.515(f)(l(ii) (State
enhancement of remedy) and of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA), 42 U.S.C. §§9601 et. sea.1
EPA is tentatively determining that the Commonwealth's proposal to construct a 28.25 acre marine
terminal (consisting of 6.85 acres of.filled waters (referred to as "the confined disposal facility" or the
"CDF") and approximately 21.4 acres of upland area, (including the ancillary properties) (referred to as
"the upland area")) in the South Terminal location of the New Bedford Harbor as well as the dredging
and filling associated with that construction, including dredging and filling of confined aquatic disposal
cel|s 2 and 3 and capping of CAD cell 1 and the borrow pit (collectively the "proposed Project", the
"Project", or the "South Terminal Project") is both protective of human health and the environment and
meets the substantive requirements of applicable or relevant and appropriate federal environmental
standards. EPA also accepts the Commonwealth's determination that the proposed Project meets the
applicable or relevant and appropriate state environmental standards. The proposed Project does not
conflict with and is not inconsistent with the New Bedford Harbor Superfund remediation, and EPA
reaffirms that the 1998 ROD, including the State Enhanced Remedy, remains protective of human health
and the environment. EPA makes this determination after carefully reviewing the extensive submissions
provided by the Massachusetts Department of Environmental Protection ("MassDEP"). This tentative
determination is subject to the conditions set out below beginning on page 15 of this document.
Accordingly, the proposed Project will benefit from the Section 121(e) permit exclusion.
Why Is EPA Issuing This Draft Determination?
As authorized by CERCLA and the National Contingency Plan, 40 C.F.R. Part 300 ("NCP"), EPA's cleanup
of the New Bedford Harbor Superfund Site ("the Site") includes a State Enhanced Remedy ("SER"). A
SER is an enhancement to the cleanup that is completely funded by the state. The SER for this Site, as
proposed in the 1996 Proposed Plan2, included, among other things, navigational dredging and the
concept of a large navigational confined disposal facility ("CDF") for navigational dredged material to be
constructed in the lower harbor, located just north of the hurricane barrier on the New Bedford shore3.
As contemplated under the 1996 Proposed Plan and the 1998 Record of Decision ("1998 ROD"), it was
1 While EPA does not believe that an Explanation of Significant Differences (ESD) under CERCLA is required here,
this Determination meets the requirements for an ESD as EPA has complied with CERCLA §117(c) and NCP
§§300.435(c)(2)(i) and 300.825(a)(2). In addition, as with an ESD, this Determination describes to the public the
nature of the significant changes, summarizes the information that led to making the changes, and affirms that the
revised action complies with the NCP and the statutory requirements of CERCLA.
2 Proposed Cleanup Plan, Upper and Lower New Bedford Harbor, New Bedford, MA, November, 1996
3 The State Enhanced Remedy was later incorporated into the Record of Decision and integrated into the remedy
for the Upper and Lower Harbor operable unit that was issued in September, 1998 ("1998 ROD").
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 3
-------
left to the Commonwealth to formulate the specific details of the dredging projects and disposal
options. The Commonwealth has now provided specific details related to the proposed Project through
the Commonwealth's recent submittals. These.submittals provide details, including alternatives to, and
impacts of the proposed Project.
Under CERCLA and the NCP, no federal, state or local permits are required with respect to on-site
cleanup actions. The purpose of the permit exclusion is to ensure that procedural requirements are
streamlined and do not delay or hamper performance of remedial actions under CERCLA. Substantive
environmental requirements, the same as those that would apply to a permitted project, must be met.
Under CERCLA, while no permits are required, on-site actions must comply with the substantive
requirements of applicable or relevant and appropriate environmental laws.
Because the SER selected for the New Bedford Harbor Site is part of EPA's remedial action, CERCLA's
permit exclusion applies to the SER. However, consistent with the 1998 ROD, once the details of the
proposed navigation projects are known, EPA performs a review to ensure that the proposed navigation
projects meet CERCLA requirements in order for the proposed Project to benefit from CERCLA's permit
exclusion.
After reviewing the Commonwealth's submittals, EPA has made the tentative determination that the
proposed Project is protective and that it complies with all applicable or relevant and appropriate
environmental laws for this Project. The Project satisfies the same substantive requirements that would
apply if the Project were subject to permit procedures. The proposed Project remains consistent with
and does not conflict with the remedy.
EPA is soliciting public comment on this Draft Determination. Although public comment is not legally
required, EPA is providing a public comment period as a matter of Agency discretion. EPA therefore
invites comments on its determination that this proposal meets all the substantive environmental
requirements that would be applicable or relevant and appropriate to such a project.
The proposed Project is presented in this Draft Determination and described in more detail in the
document entitled, State Enhanced Remedy in New Bedford. South Terminal and its appendices, dated
January 18, 2012, as modified by its June 18 and June 29, 2012 submittals, which were prepared by the
Massachusetts Department of Environmental Protection (MassDEP). These and other supporting
documents may be found in the Administrative Record for this proposal at www.epa.gov/nbh , the New
Bedford Public Library and the EPA New England Records Center in Boston. The scope and a summary of
the proposed Project are presented below.
Scope and Summary of Proposed Project
This Draft Determination evaluates the location and construction of a shoreline marine terminal,
including a 6.85 acre CDF, in the South Terminal area of New Bedford Harbor, dredging of channels and
a turning basin necessary to access the CDF, mitigation measures within and outside the hurricane
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 4
-------
barrier, and dredging, filling and capping activities associated with CAD cells. The basic purpose of the
project is to develop a marine terminal that will provide infrastructure capable of supporting the
, development of offshore renewable energy facilities as well as other future uses (such as container
shipping, break-bulk cargo shipping, and short-sea shipping). A secondary purpose is to provide a site ,
for the disposal of, and staging for beneficial reuse of material dredged from the navigational dredging
associated with the State Enhanced Remedy.
This Draft Determination does not evaluate the location of CAD cell 3, which is to be constructed as part
of this Project. The preferred location for navigational CAD cells in New Bedford (between the Route
195 and Route 6 bridges) was determined in the October 2003 Final Environmental Impact Report for
the New Bedford/Fairhaven Harbor Dredge Material Management Plan ("2003 DMMP") prepared by the
Massachusetts Office of Coastal Zone Management.4 The Project's proposed CAD cell 3 will be located
within this state-approved 2003 DMMP area. This Draft Determination will evaluate the activities of
capping the existing borrow pit and existing CAD cell 1, the disposal of navigational dredged sediment
(less than 50 ppm PCBs) into existing CAD cell 2, and dredging and partial filling of CAD cell 3.
Remediation of the upland portion of the terminal site adjacent to the proposed CDF will be conducted
independently by the Commonwealth through the State hazardous waste cleanup program M.G.L. c. 21E
("21E"), and its implementing regulations in the Massachusetts Contingency Plan ("MCP"), 310 CMR
40.0000. However, the entire marine terminal, including the remediated portions, will be subject to the
conditions set out in a draft risk-based TSCA Determination which is attached to this Draft
Determination as Appendix J(l).5
Lead Agency
The entire cost of this proposed Project will be funded by various funding mechanisms available to the
Commonwealth; the federal Superfund will not be funding any portion of this proposed Project.
Construction of the Project will be overseen by the Commonwealth, through Massachusetts Department
of Environmental Services, as lead agency for the State Enhanced Remedy with ongoing consultation of
the Resource Agencies6 (including the U.S. Army Corps of Engineers, the U.S. Environmental Protection
Agency, National Fisheries Management Service, Massachusetts Coastal Zone Management,
Massachusetts Division of Marine Fisheries, and other relevant federal and state regulatory programs) in
4 The 2003 DMMP, prepared to comply with the Massachusetts Environmental Protection Act and its
implementing regulations (M.G. L. c. 30, ss. 61-62H; 301 CMR 11.00) concluded that this area, referred to as
"Popes Island North" was the preferred location for CAD cells due to, among other factors, its greater depth to
bedrock and thus higher disposal capacity, its location outside of main navigational channels, its lower potential for
cap disruption, and its higher potential for benthic recolonization (2003 DMMP, pp. 4-15 - 4-17). Subsequently, the
exact boundary of the 2003 DMMP CAD cell area has been modified twice, in January 2005 and April 2008, but
remains bounded by the Route 195 bridge to the north and the Route 6 bridge to the south.
5 Offshore disposal of dredged material is the subject of two. permits issued by the U.S. Army Corps of Engineers in
2011 and is not included within the scope of this Draft Determination:
6 The agencies that comprise the "Resource Agencies" and the roles and responsibilities of the Commonwealth and
these Resources Agencies for the enhancement work are set out in a Memorandum of Agreement between U.S.
EPA and the Commonwealth of Massachusetts, dated January 10, 2005. See Administrative Record #509397.
EPA Draft Determination for the Proposed South Terminal Project Page 5
New Bedford Harbor State Enhanced Remedy
-------
accordance with the State Enhanced Remedy process. Construction of the proposed Project is expected
to take approximately 2 years. The Commonwealth's submittal indicates that use of the facility would
begin as soon as construction is completed, approximately January 20147.
Overview of the Proposed Project and Major Components
The proposed Project consists of construction of a 28.25 acre site, comprised of a 6.85 acre shoreline
CDF adjacent to existing upland (as well as to several ancillary properties) in the South Terminal area
located in the lower portion of New Bedford Harbor, creation of a CAD cell (CAD cell 3), filling and
capping of existing CAD cells, dredging of a navigational channel, boat basin and mooring area, and
mitigation measures. The proposed CDF and upland area, once completed, will function as a marine
industrial terminal capable of supporting offshore renewable energy development8, and, with some
modification, container, break bulk, and bulk cargo shipping as well as short-sea shipping if it were to
occur in the Harbor. The terminal would also provide a site for disposal of clean, dredged material
associated with the SER during construction of the Project and would provide for a staging area for
additional clean, dredged material for future beneficial reuse, thereby avoiding ocean disposal of this
clean material.
The Commonwealth has also requested that potential additional work be evaluated as part of this Draft
Determination, although funding for this proposed work (and potentially for some of the mitigation
work) is not secured. The proposed additional work consists of (1) a width increase of 50 feet in the
approach channel; (2) up to 300 feet increase in length,of the deep draft dredging area; and (3)
expansion of CAD cell 3 to accommodate the additional volume of dredged contaminated sediment
(below 50 ppm PCBs). EPA has included this additional work as part of its evaluation.
The major components of the proposed Project are set out below:
• Construction of up to a 8.76 acre CAD cell between the Route 195 and Route 6 bridges to hold
navigational dredged contaminated sediment;
• Navigational dredging of approximately 934,600 cubic yards* of material in the waters of New
Bedford including:
o Approximately 247,100 cubic yards of sediment contaminated with average PCB-
concentratioris of less than or equal to 50 parts per million (ppm) and disposal of these
sediment in existing CAD cell 2 and the newly constructed CAD cell 3; and
o Approximately 687,500 cubic yards of clean, glacial material below the removed
contaminated sediment and use of this material.as clean fill for the CDF, capping of
7 The Commonwealth's June 18, 2012 submission, at pages 11 and 12, notes that the schedule presented in earlier
submissions for use of the terminal has been revised. See also Attachment F of the June 18, 2012 submission for a
revised schedule.
8 See pages 29 - 33 of the Commonwealth's June 18, 2012 submittal for a detailed description of the how the
proposed marine terminal CDF will be used to support offshore renewable energy development.
EPA Draft Determination for the Proposed South Terminal Project Page 6
New Bedford Harbor State Enhanced Remedy
-------
existing borrow pit and CAD cell 1, for use in associated mitigation projects, and
offshore disposal;
• Construction of a 28.25 acre multi-purpose marine terminal (including ancillary properties)
including:
o Construction of a 6.85 acre CDF with a 1200 foot linear coffer dam bulkhead and a pier
supported apron;
o Placement of approximately 142,000 cubic yards of clean, dredged material behind the
bulkhead;
o Remediation of upland areas to address PCBs concentrations greater than 25 ppm and
elevated levels of PAHs and lead in soil;
o Excavating, filling and regrading portions of upland soil adjacent to the filled area,
including excavation and modification of an existing state-authorized cleanup remedy;
o Realignment of Gifford Street Boat Ramp channel and temporary closure of Gifford
Street Boat Ramp;
• Capping of the CDF and upland area (together, the marine terminal) with 3 feet of a dense
stone aggregate;
• Long-term upland groundwater monitoring;
• Mitigation, including:
o Creation of 22.73 acres of winter flounder habitat;
o Creation/restoration of 1.9 acres of successional marsh area;
o Creation/enhancement of 4.47 acres of intertidal habitat;
o Creation/enhancement of 14.91 acres of shallow subtidal habitat;
o EPA is recommending reseeding of 24,542,803 shellfish over 10 years to replace
9,817,121 impacted shellfish, given the expected 40% survival rate;
o Completion of a Tern Monitoring Program;
• Implementation of an Activity and Use Limitation on the CDF to protect the remediated areas
and a limitation on the use of groundwater; and
• Inclusion of locations of CAD cells on navigational charts and implementation of any required
anchorage restrictions.
A map of the proposed work components is found in Attachment A of the Commonwealth's June 29,
2012 submittal and is attached to this Draft Determination as Figure 1.
*Cubic yards includes current estimated total volume of material that is anticipated to be dredged in
association with this Project (including the maximum anticipated volume should the additional potential
work of dredging up to 300 feet to extend the deep-draft berthing along the bulkhead wall, the 50 foot
widening of the channel, and associated increases in the size of CAD 3 to accommodate additional
impacted dredged material for disposal be required). For a breakdown of these volumes, see
Attachment S of the Commonwealth's June 18, 2012 submittal, a copy of which is attached to this
document as Table 1 for reference. (Note: The engineering plans in Attachment A of the June 18, 2012
submittal reflect a smaller 6.3 acre CAD and do not include this additional work and would require
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 7
-------
dredging of 740,600 cubic yards. See Attachment A of the Commonwealth's June 29, 2012 submittal for
engineering plans of the above-described additional work.)
POTENTIAL COMMUNITY IMPACTS
Although the proposed Project is located in the Designated Port Area of the Harbor, the work may
temporarily impact the surrounding community. Potential effects may include increased construction
noise, traffic, and dust. Different steps will be taken to reduce these possible impacts. For instance,
truck traffic will enter and leave the work area directly from Potomska Street through one site driveway
and access Route 18. Construction equipment would use ultra low sulfur diesel fuel in all diesel engine
powered equipment. Equipment would be fitted with mufflers and enclosures to minimize sound and
time of day restrictions may be imposed for equipment that cannot be muffled. Construction areas
would be fenced during construction to block public access. Trucks would be covered and washed
before leaving the construction zone to make sure contamination would not spread and to reduce dust.
Dust suppression measures would be used such as covering soil piles and keeping exposed soil surfaces
wet. Air monitoring would be conducted at the construction area. If monitoring showed a problem,
varying steps like spraying water would be taken to reduce dust, ultimately halting work if unsafe.levels
are found. Temporary impacts will also result from the relocation of the Gifford Street Boat Ramp, a
public boat ramp and realignment of the channel. Special arrangement could be made to allow access
for primary users of the impacted ramp during construction and two new boat mooring areas will be
created.
For additional discussion of beneficial and detrimental public impacts, see section 9 of Appendix E and
Appendix M to this Draft Determination.
RESOURCE IMPACTS
The proposed Project will impact wetlands and other waters of the U.S., floodplains, and aquatic life
(including significant impacts on shellfish and winter flounder). Two paleosol9 areas and a shipwreck
were also indentified but no impacts to these areas are anticipated. The roseate tern, an endangered
species, has been identified as present in the area but the Project is unlikely to adversely affect the
species. Atlantic sturgeon has been identified as potentially present in the area; potential adverse
affects are currently under evaluation. Blasting, if it occurs, may have impacts on, including and up to
mortality for aquatic plants, aquatic invertebrates, amphibians and reptiles and fish. It may also impact
larval stages of fish and fish eggs.
EPA is specifically seeking comment on the following determinations:
9 Typically former or "fossilized" soil preserved within a sequence of geological deposits that are indicative of past
conditions.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford.Harbor State Enhanced Remedy
Page 8
-------
Impacts to Wetland and Other Waters: The proposed Project includes activities that would impact
wetlands and other waters of the U.S.; specifically, filling of 6.9 acres of intertjdal and shallow, near-
shore subtidal habitat, salt marsh, and freshwater wetland areas and dredging of up to 53.7 acres of
near-shore subtidal and subtidal areas.
Regulations implementing Section 404 of the Clean Water Act ("CWA") (the 404(b)(1) guidelines), and
Executive Order 11990 (Protection of Wetlands), prohibit discharges into wetlands and other waters of
the U.S. if there is a practicable alternative to the proposed discharge which would have less adverse
impact on the aquatic ecosystem (as long as the alternative does not have other significant adverse
environmental consequences). EPA has tentatively determined that given the proposed purpose of
constructing a marine terminal capable of supporting offshore renewable energy, particularly the
offshore wind industry and the minimum criteria required for that use, there is no practicable
alternative that would be less environmentally damaging to the aquatic ecosystem.10 See Appendix E
for full discussion of impacts to wetlands and other waters.
Therefore, EPA has tentatively determined that the proposed South Terminal Project is the least
environmentally damaging practicable alternative ("LEDPA"). EPA is specifically requesting comments
on its determination that the proposed South Terminal Project is the LEDPA.
The Section 404(b)(1) guidelines also forbid approval of a project that would involve placing dredged or
fill material in wetlands or other waters of the U.S. if it would cause or contribute to significant
degradation of waters of the U.S.; cause or contribute to violations of state water quality standards; or
jeopardize the continued existence of an endangered or threatened species. EPA has tentatively
determined that while there will be adverse effects to water quality and aquatic resources, there will
not be violations of water quality standards, nor will there be significant degradation of the aquatic
environment provided that the Commonwealth employs best management practices to minimize
harmful impacts on the wetlands and other waters and their associated aquatic life and habitat and
implements the required compensatory mitigation. See Appendix E of this Draft Determination for full
discussion. EPA has also tentatively determined that the project will not jeopardize the continued
existence of threatened or endangered species. (See discussion at Appendix I to this Draft
Determination).
Further, the § 404(b)(1) guidelines require that all appropriate and practicable mitigation be employed
to address the unavoidable impacts to the waters of the U.S. EPA has tentatively determined that the
Commonwealth's mitigation plan described above, with certain modifications, will satisfy the federal
requirements. See Appendix E of this Draft Determination for full discussion.
Floodplain Impacts: The proposed Project arguably includes federal activities in a floodplain subject to
Executive Order 11988; thus, for purposes of assuring that this Executive Order is complied with, EPA
has undertaken an analysis of the State Enhanced Remedy under that Executive Order. That analysis is
also relevant in assessing the extent to which the remedy is protective of human health and the
10 Information regarding impacts under Section 10 of the Rivers and Harbors Act, 33 U.S.C. §403 may be found in
Appendix E.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 9
-------
environment.
; Executive Order 11988 (Floodplain Management) requires EPA to evaluate, when applicable, four basic
requirements. These include: determining if an action is to occur in a floodplain; determining if there
are practicable alternatives; where there is no practicable alternative to development in a floodplain,
minimize potential harm to or within the floodplain; and to provide the public with an early opportunity
to comment upon the relevant plans and proposals.
EPA is asking for specific public comment on the proposed actions relating to floodplains as explained
in Appendix L.
The South Terminal proposal includes activities that affect or result in the occupancy and modification of
the floodplain. Construction of the CDF will involve dredging and filling of salt marsh and intertidal and
subtidal areas and the installation of a bulkhead, all of which will occupy and modify the area's
floodplains. As a result, Executive Order 11988 (Floodplain Management) requires EPA to make a
determination that there is no practicable alternative to locating the CDF in floodplains. After reviewing
other alternative locations, EPA has determined that, given the use of the CDF as a marine terminal to
support the offshore wind industry and the required criteria to support that use, there is no practicable
alternative to occupancy and modification of the floodplain. As a result, actions must be taken to
minimize potential harm to or within the floodplain. One of the primary beneficial floodplain values
identified for the area affected by this project is flood prevention. Analysis by the U.S. Army Corps of
Engineers and the Commonwealth suggests that the State Enhanced Remedy will result in the loss of.
27.33 acre-feet of flood storage capacity behind the hurricane barrier in New Bedford Harbor, which
represents a rise of approximately 0.156 inches in water levels during a flood event. Restoration
actions in the Marsh Island area will more than compensate for the loss of flood storage capacity caused
by the South Terminal Project. As a result, the substantive requirements of Executive Order are.satisfied
given flood storage protection is the primary value served by the floodplain in the area of the Project.
More details on mitigation measures are included in Appendix L.
Risk-based TSCA Determination: Consistent with Section 761.61(c) of the Toxic Substances Control Act
(TSCA), based on information provided by the Commonwealth, EPA has made a draft determination that
the proposed method of excavation and disposal of the proposed upland soils and dredging and disposal
of certain PCB-contaminated sediment, including dredging and disposal activities relating to CAD cell 3,
all of which are included in the proposed South Terminal Project, do not pose an unreasonable risk to
human health or the environment as long as the conditions set out in the TSCA Determination attached
as Appendix J(l) to this Draft Determination are: met. The activities covered by, and the conditions
contained within this TSCA Determination are more fully described within Appendix J(l).
In addition, EPA is proposing to modify an existing TSCA Determination issued on November 12, 2008, as
modified on June 18, 2012, to include dredging and disposal of PCB-contaminatedisediment dredged
from within the footprint of CAD cell 3 and from the tidal tributary adjacent to the hurricane barrier into
existing CAD cell 2. Based on the information provided by the Commonwealth, and provided the
conditions in this Second Modification to the November 12, 2008 TSCA §761.61(c) Determination are
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 10
-------
met, EPA is determining that disposal of CAD cell 3 sediment and tidal tributary sediment into CAD cell 2
does not pose an unreasonable risk to human health and the environment. The activities covered by,
and the conditions contained within this modified TSCA Determination are more fully described within
Appendix J(2).
EPA is asking for specific public comment on these two proposed TSCA §761.61(c) determinations
found in Appendices J(l) and J(2).
State Enhanced Remedy Timeline11
1996: Commonwealth of Massachusetts requests that navigational dredging and disposal be included in
the planned 1998 ROD
November 1996: EPA issues.Proposed Plan for the Upper and Lower Harbor, including navigational
dredging and disposal and conceptual idea of construction of a large navigational CAD in the lower
harbor
September 1998: EPA issues Record of Decision for Upper and Lower Harbor and includes SER
June 14, 2002: Commonwealth certifies Draft Environmental Impact.Report for Dredge Material
Management Plan for location of CADs in New Bedford Harbor
September 25, 2002: Original New Bedford/Fairhaven Municipal Harbor Plan issued; includes proposed
navigation dredging projects
State Pier dredging and borrow pit dredging and filling subsequently implemented
October 15, 2003: Commonwealth of Massachusetts issues Dredge Material Management Plan Final
Environmental Impact Report for location of CADs in New Bedford Harbor
January 10, 2005: Memorandum of Agreement completed between EPA and Commonwealth to
designate State as lead for SER, EPA as lead for non-SER work and to determine roles and responsibilities
for Resource Agencies. Memorandum of Agreement also completed between Commonwealth and City
of New Bedford
2004 - 2006 time frame: Phase II work plans reviewed and Phase II work completed, including
construction of CAD 1
2006 - 2007 time frame: Phase III work plans reviewed and Phase III work completed, including
construction of CAD 2
11 This timeline relates solely to the State Enhanced Remedy work and not to the work that EPA is conducting to
address PCB contamination exceeding the cleanup levels in the 1998 ROD. For information about the work that
EPA is conducting, see the Administrative Records for the New Bedford Harbor Superfund Site which may be
viewed at the New Bedford Public Library, at EPA's Record Center or at www.epa.gov/nbh.
EPA Draft Determination for the Proposed South Terminal Project Page 11
New Bedford Harbor State Enhanced Remedy
-------
2010: New Bedford/Fairhaven Harbor Plan renewal approved; includes proposed navigation dredging
projects
January 2010: Commonwealth requests EPA evaluate proposed South Terminal Project as part of the
SER
Significant Commonwealth submittals with information about the proposed Project:
August 2010 - Initial comprehensive submittal for construction of CDF and dredge and filling
activities for proposed Project
January 18, 2012 - Revised submittal to include, among other things, CAD cell 3, expansion of
the dredge footprint and elimination of a temporary bridge
June 18, 2012 - Scope of proposed Project revised to include potential dredging of certain
portions of the federal channel, potential expansion of deep draft berthing area, potential
increase in the width of the approach channel, potential need for underwater blasting and
change to proposed ancillary properties to be included in the Project. Resource impacts and
mitigation plans were revised.
June 26, 2012 - Provides updated plans and additional information about the revised proposed
Project scope described in June 18, 2012 submittal.
July 16, 2012: EPA issues this Draft Determination that the proposed South Terminal Project is
protective, that it meets the applicable and relevant and appropriate requirements that would apply to
such a project were it subject to normal permitting and regulatory procedures, and that it will be
included in the State Enhanced Remedy for the New Bedford Harbor Superfund Site.
Alternative Sites Evaluated
Included in EPA's Draft Determination is a finding that the South Terminal Project represents the least
environmentally damaging practicable alternative ("LEDPA") to other locations presented by the
Commonwealth, and evaluated by EPA. The alternative locations evaluated consist of the following
areas: Several sites at the Port of Davisville, Quonset Point, Rhode Island; Dry Dock # 4 in Boston,
Massachusetts; Fall River State Pier, Fall River, Massachusetts; Union Wharf and Fairhaven Shipyard,
Fairhaven Massachusetts; North Terminal and Pope's Island, New Bedford, Massachusetts; and State
Pier, New Bedford, Massachusetts,
A discussion of these alternatives and the basis for EPA's conclusion that the South Terminal location is
the LEDPA, is contained in Appendix E to this Draft Determination.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 12
-------
Statutory Authority and Background
What is the State Enhanced Remedy?
As EPA develops and analyzes alternative remedies for addressing a specific Superfund cleanup, or even
after EPA has issued its decision document, the state may suggest or develop either changes to the
selected remedy or expansion of the scope of the cleanup. For these situations, the NCP provides that:
"if EPA finds that the proposed change or expansion is not necessary to the selected remedial action,
but would not conflict or be inconsistent with the EPA-selected remedy, EPA may agree to integrate the
proposed change or expansion into the planned CERCLA remedial work if: (A) The State agrees to fund
the entire additional cost associated with the change or expansion; and (B) The State agrees to assume
the lead for supervising the state-funded component of the remedy...".1213
In 1996, prior to issuance of the 1996 Proposed Plan, the Commonwealth requested that EPA integrate
navigational dredging and onsite disposal into EPA's remedy for New Bedford Harbor. This
enhancement, the State asserted, "will result in the cleanup of additional amounts of contaminated
sediments sooner than would otherwise be possible." In its request, the Commonwealth points out that
its ability to provide funding for the enhancement is dependent on its ability to receive state bond
funding.
While navigational dredging and disposal is not "necessary and appropriate" to the remedy (see
footnote 13), EPA included the Commonwealth's enhancement for navigational dredging and onsite
disposal in the 1996 Proposed Plan because it provides a number of potential and significant benefits to
EPA's cleanup plans for the Harbor and it does not conflict with and is not inconsistent with the remedy.
The Plan noted that the benefits of such a linkage would primarily stem from a streamlined permitting
process for navigational sediment disposal facilities14, as well as the possibility of using navigational
sediments for preliminary cap material. In addition, the proposed SER was beneficial because
navigational dredging would remove sediment containing PCBs up to 50 ppm and heavy metals that the
EPA preferred alternative would not be addressing. Finally, the Plan noted that navigational dredging
works in concert with the City's plans for developing the public and economic uses of the Harbor.
After public review and comment on the 1996 Proposed Plan, EPA integrated the State's enhancement
request into its remedy through issuance of the 1998 ROD. Integration of the SER in the ROD allowed it
to benefit from the CERCLA permit exemption, provided that the SER maintained consistency with 40
12 NCP §515(f)(l)(ii), 40 C.F.R. §300.515(f)(l)(ii).
13 Section 515(f)(l)(i) provides another avenue for a state to ask EPA to make changes in or expansions of a
remedial action: "(i) If EPA finds that the proposed change or expansion is necessary and appropriate to the EPA-
selected remedial action, the remedy may be modified (consistent with §300.435(c)(2)) and any additional costs
paid as part of the remedial action." Because the Commonwealth's request is not "necessary and appropriate" to
the remedial action, this subsection did not apply.
14 Pursuant to CERCLA §121(e)(l), permits are not required for remedial actions if certain criteria are met: CERCLA.
§121(e)(l) states: No Federal, State, or local permit shall be required for the portion of any removal or remedial
action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this
section. See also 40 C.F.R. § 300.400(e) and 53 Fed. Reg. 51394, 51406-7 (December 21, 1988).
EPA Draft Determination for the Proposed South Terminal Project Page 13
New Bedford Harbor State Enhanced Remedy
-------
CFR 300.515(f)(l)(ii) and complied with CERCLA and other dredging-related regulations.15 Since then,
two phases of SER work have been completed, Phase II and Phase III.16 To date, the integration of the
enhancement work with the Superfund remedial work has resulted in savings of both costs and time,
while enhancing environmental benefits. For example, EPA used the clean sand generated by one of the
SER enhancement CAD cells to provide the capping material for a "pilot cap" covering a hot spot of
contaminated sediments south of the hurricane barrier, allowing EPA to address a contaminated portion
of the Site that otherwise would not have been addressed for some time.
By letter dated January 25, 2010, the Commonwealth requested that EPA further enhance the remedial
action at the Harbor by proposing the construction of CDFs at three locations, including the South
Terminal portion of the Site. Subsequently, the Commonwealth narrowed its proposal to include only a
CDF located at South Terminal. At this time, the Commonwealth proposes building a CDF at the South
Terminal location by using clean sediment generated by the associated navigational dredging activities
along with a CAD cell (CAD cell 3) for disposal of contaminated sediment (generally PCB concentrations
below 50 ppm) generated by the proposed Project. Pursuant to NCP requirements, the Commonwealth
would fully fund the proposed work, and the Commonwealth provided information to enable EPA to
make a determination about the proposed Project's compliance with CERCLA, including compliance with
all substantive requirements and evaluations that would normally be conducted for .this proposal as part
of a regulatory review and permitting process. Although the proposed CDF in the South Terminal
location was already included in the SER, EPA has carefully reviewed the Commonwealth's detailed
proposal to determine whether or not the proposed Project complies with CERCLA and the substantive
requirements of the applicable or relevant and appropriate state and federal environmental laws that
would normally apply as part of a permitting process.17
15 See page 33 of the 1998 ROD. Page 33 and 34 of the 1998 ROD goes on to say: "EPA believes that the primary
benefits of linking the two dredging programs, while not sacrificing the normal regulatory review process for
federal navigational projects, will be a streamlined permitting process for on-site navigational disposal facilities (if
any), coordinated rather than separate environmental monitoring programs, where feasible, and increased overall
coordination between the two dredging projects. In fact, the overall environmental benefit of the remedial CDFs is
increased by using the CDFs to contain a portion of the navigational sediments (as part of the interim caps) as well
as the more highly contaminated remedial sediments. Such a scenario should also reduce cleanup costs since at
least some of the costs for the clean fill that would otherwise be required for the preliminary caps would no longer
be necessary. Incorporating the enhanced remedy shall not jeopardize or delay the overall implementation or
funding of the selected remedy. Rather, implementation of the navigational dredging project, including solicitation
of public comment on it, will be the responsibility of those parties normally involved in such projects, namely the
MA Coastal Zone Management office, the US Army Corps of Engineers, the National Fisheries Management Service
and other relevant state and federal regulatory programs. Consistent with 40 CFR 300.515(f)(l)(ii)(A), the EPA
Superfund program will not be responsible for funding any part of the enhanced remedy."
¦ ' • \
16 See Phase II and Phase III Work Plans in the Administrative Record for a description of that work.
17 As indicated above, this EPA Draft Determination does not evaluate the location of CAD cell 3 because.the
location of CAD cells was already considered and approved by the State as part of the Massachusetts Office of
Coastal Zone Management evaluation. See footnote 4. However, in analyzing the Commonwealth's proposed
Project as a whole, including the proposed CAD cell 3, EPA does consider the additional dredging and filling to be
performed in order to construct the proposed CAD.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 14
-------
EPA has compiled all of the documents it relied on to reach this Draft Determination in the
Administration Record for this Project, available as of July 23, 2012, at the New Bedford Public Library,
EPA New England Records Center and on line at www.epa.gov/nbh.
EPA's Draft Determination
Subject to the conditions and understandings set out herein, after review and consideration of all the
information submitted by MassDEP, on behalf of the Commonwealth of Massachusetts, EPA has
tentatively determined that the Commonwealth's proposed Project, which consists of constructing a
28.25 acre marine terminal (consisting of 6.85 acres of filled waters (the CDF) and approximately 21.4
acres of upland area, (including the ancillary properties)) in the South Terminal location of the New %
Bedford Harbor as well as the dredging and filling associated with.that construction, including the
dredging and filling of CAD cells 2 and 3 and the capping of CAD cell 1 and the borrow pit (collectively
the "proposed Project", the "Project", or the "South Terminal Project"), is both protective and meets
the substantive requirements of the applicable and relevant and appropriate federal environmental law
that would normally apply as part of a permitting process; and EPA accepts the Commonwealth's
determination that the project meets the applicable and relevant and appropriate State environmental
standards. The proposed Project does not conflict with and is not inconsistent with the remedy. EPA
reaffirms that the 1998 ROD, including the State Enhanced Remedy, remains protective of human health
and the environment.
As a result, EPA is tentatively approving inclusion of the proposed Project in the State Enhanced Remedy
at the New Bedford Harbor Superfund Site which enjoys the benefit of the permit exclusion found in
Section 121(e) of CERCLA provided that, prior to EPA's issuance of a Final Determination, the following
conditions are met by the Commonwealth:
1. A final assessment of the upland area of the proposed Project that complies with National
Historic Preservation Act requirements is provided to EPA and the consulting parties, and
appropriate consultation is conducted regarding potential effects to historic properties.
2. A final consultation on ESA and final FWCA and EFH coordination.
3. A sufficiently detailed mitigation plan that satisfies the requirements of 40 C.F.R. 230.94(c)
and addresses the impacts caused by the proposed project as identified pursuant to the
requirements of Section 404 of the Clean Water Act, and that satisfies any additional
conditions resulting from EPA's ESA, EFH and FWCA consultations.
4. A map showing the final configuration of the New Bedford Marine Commerce Terminal,
including all ancillary properties.
5. Acoustical studies of blasting and pile driving related to potential effects on Atlantic
sturgeon.
6. The U.S. Army Corps of Engineers' concurrence, in accordance with 33 U.S.C. § 408, that the
channel design proposed in the successional marsh mitigation will have no adverse effect on
the operation of the Hurricane Barrier.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 15
-------
7. All the conditions contained in Appendix E to this Draft Determination.
If, after review and comment, there are no significant comments that cause EPA to revaluate its Draft
Determination that the Project meets all applicable and relevant and appropriate requirements,
implementation of the Project will be based on certain conditions. These conditions are set out below
based on current knowledge. Additional conditions may be identified in EPA's Final Determination.
1. Compliance with all applicable and relevant and appropriate requirements is maintained
including
a. Additional conditions imposed by the State and Tribal Historic Preservation Officers to
avoid adverse effects to historic properties/artifacts; and
b. Completion of the Marsh Island mitigation project to compensate for flood storage loss;
2. EPA's authorization of storm water discharges associated with construction activities is
conditioned upon the Commonwealth's updating and completing its Storm Water Pollution
Prevention Plan (SWPPP) to address all of the elements of the CGP no later than fourteen (14)
days before land disturbing activities take place, and on the Commonwealth's implementation
of the SWPPP consistent with the terms and conditions of the CGP.
3. The following workplans are provided to EPA for review and approval at least thirty (30) days
before land or water activities take place:
a. A Phase IV workplan for dredging and disposal of sediments;
b. A Construction Management Plan that includes plans for minimizing impacts during
construction of the Project on the surrounding community, including dust, noise, and
truck traffic;
c. A work plan for blasting that includes health and safety measures for human and
aquatic life;
d. An air monitoring plan that meets minimum requirements in Appendix A;
e. A Contractor Workplan for the PCB remediation work of the upland area within the site
boundary shown on Attachment 8 to Appendix J (1). Any additional areas beyond those
shown on Attachment 8 will require review by EPA and may result in an issuance of a
new or revised TSCA Determination;
f. If it occurs, a workplan for Federal channel dredging; and
g. If it occurs, a workplan for the expansion of deep draft berthing area to the north or
south of the currently planned CDF bulkhead.
4. No blasting except during November through February of any year.
5. All the conditions contained in Appendix E to this Draft Determination.
This Draft Determination is also conditioned on the information provided to EPA in the Commonwealth's
submittals; any subsequent change to that information may cause EPA, in its sole discretion, to
withdraw or modify its Draft Determination and potentially reissue it for public comment.
Description of Proposed Location
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 16
-------
A description of the proposed Project is provided below; however, EPA refers the reader to the
Administrative Record for a more complete description of the work.
Project Location- General New Bedford Harbor Environment
The Commonwealth proposes to locate the Project in New Bedford Harbor, New Bedford
Massachusetts. New Bedford Harbor is located on the northern shore of Buzzards Bay, bordering the
City of New Bedford to the west; to the east, the communities of Acushnet and Fairhaven. It extends
from the shallow northern reaches of the Acushnet River estuary, south through the commercial harbor
of the Cjty of New Bedford and into 17,000 adjacent acres of Buzzards Bay.
New Bedford is home port to a large offshore fishing fleet and is a densely populated manufacturing and
commercial center. By comparison, the eastern shore of New Bedford Harbor in the communities of
Acushnet and Fairhaven is predominantly residential or undeveloped. Numerous storm drains,
combined sewer overflows (CSOs) and industrial discharges discharge directly to the Harbor, and smaller
brooks and creeks discharge to the Harbor.
There is a federal navigation channel beginning in the outer harbor and leading into the* Harbor through
gates in the hurricane barrier. The main channel splits into two channels once inside the barrier,
providing access in the lower harbor to the New Bedford commercial wharfs on the west side and to the
Fairhaven wharfs on the east side. A turning basin lies at the end of the New Bedford channel.
Project Location - Harbor Waters
The water quality classification of the inner harbor is Class SB, with a "CSO" qualifier, indicating that the
water body has been impacted by the discharge of combined sewer overflows (CSO). The New Bedford
Inner Harbor (MA 95-42) is currently listed as an impaired water on Massachusetts 2010 Clean Water
Act § 303(d) list. The pollutants associated with the impairments are priority organics, metals, nutrients,
organic enrichment, low dissolved oxygen, pathogens, oil and grease, taste, odor, color and
objectionable deposits.
Project Location - New Bedford Harbor Contamination18
From the 1940s into the 1970s two electrical capacitor manufacturing facilities in New Bedford, one
located near the northern boundary of the Site (the Aerovox Facility) and one located just south of the
New Bedford Harbor hurricane barrier (the Cornell-Dubilier Facility), discharged PCB-wastes either
directly into the harbor or indirectly via discharges to the City's sewerage system. Designated by the
Commonwealth, pursuant to 40 C.F.R. § 300.425(c)(2), as its highest priority site, the New Bedford Site
was proposed for inclusion on the Superfund National Priorities List in 1982. Pursuant to Section 105 of
CERCLA, 42 U.S.C. § 9605, EPA placed the New Bedford Site on the National Priorities List, set forth at 40
C.F.R. Part 300, Appendix B, by publication in the Federal Register on September 8, 1983, 48 Fed. Reg.
18 For more information about site contamination and the New Bedford Harbor Superfund Site, see
www.epa.gov/nbh. See also the administrative records for the New Bedford Harbor Superfund Site, all of which
are incorporated by reference into the Administrative Record for this Draft Determination.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 17
-------
40658-40673. The harbor is contaminated with high concentrations of many hazardous substances,
notably polychlorinated biphenyls (PCBs) and heavy metals, with contaminant gradients decreasing from
north to south. In addition, in 2008, EPA analytical tests showed that PCB-contaminated sediment
excavated from an area along the shoreline near the former Aerovox Facility had high levels of
trichloroethylene ("TCE"), a volatile organic compound, which made such sediment RCRA hazardous
waste. The greatest human health risks result from ingestion of contaminated local seafood with
unacceptable risks also from direct contact with shoreline contamination and incidental ingestion of
contaminated shoreline sediment (for younger children (ages 1-5)). Contaminated media (sediment,
sediment pore water (the water in the small spaces between sediment particles) and the water column)
pose risks to ecological receptors at the Site. EPA's fish consumption guidelines may be found at
www.epa.gov/nbh; a copy is also attached as Appendix B to this Draft Determination for reference.
The Superfund Site has been divided into three areas - the upper, lower and outer harbors - consistent
with geographical features of the area and gradients of contamination (Figure 2). The upper harbor
comprises approximately 187 acres, with current sediment PCB levels ranging from below detection to
approximately 4,000 ppm. The boundary between the upper and (ower harbor is the Coggeshall Street
bridge where the width of the harbor narrows to approximately 100 feet. The lower harbor comprises
approximately 750 acres, with sediment PCB levels ranging from below detection up to 190 ppm. The
boundary between the lower and outer harbor is the 150 foot wide opening of the New Bedford
hurricane barrier. (The hurricane barrier was constructed in the mid-1960s). Based on currently
available data, sediment PCB levels in the outer harbor have been found to be generally low, with only
localized areas of PCBs in the 50-100 ppm range, including an area just south of the hurricane barrier
near the Cornell-Dubilier plant and an area near the City's sewage treatment plant's outfall pipes. These
areas were included in the 1998 ROD as an interim remedy to the extent that they contain PCB-
contaminated sediment above the 50 ppm cleanup level for the lower harbor. (As part of an EPA pilot
capping project, sediment exceeding 50 ppm in the area just south of the hurricane barrier has been
capped with clean, navigational dredged sediments.) Further investigations of the outer harbor will be
undertaken as part of operable unit three to determine whether additional remediation is appropriate
for this area.
EPA's selected remedy involves dredging and a combination of containment in CDFs, a CAD and offsite
disposal of contaminated sediment. Sediment in the upper harbor with PCB-concentrations at or above
10 ppm and in the lower harbor at or above 50 ppm will be addressed as part of the 1998 ROD remedy.
Cleanup of PCBs in shoreline beachcombing areas (at or above 25 ppm), residential area (1 ppm) and
saltmarsh areas (50 ppm) are also included within 1998 ROD remedy. Full-scale dredging began in 2004;
to date, approximately 225,000 cubic yards of contaminated sediment have been dredged.
Project Location - South Terminal Area
General Area Description: the proposed Project will be located within the Designated Port Area (DPA) in
the lower harbor, an area specifically reserved for water-dependent industrial uses by the State. See
Figure 3. The 28.25 acre site, including the CDF, adjacent upland, and ancillary properties, is to be
located east of Route 18, just north of the Hurricane Barrier and is at the intierface of Waterfront
EPA Draft Determination for the Proposed South Terminal Project Page 18
New Bedford Harbor State Enhanced Remedy
-------
Industrial and "Industrial B" zoning districts.. The main portion of the facility would be comprised of
approximately 11 contiguous acres of existing upland and 6.85 acres of additional land created by
construction of a CDF in adjacent waters. An additional 8 acres of ancillary upland south of the main
portion would be used for wind blade lay-down. In addition, two different configurations of an
additional 2.4 acres are under consideration by the Commonwealth. Configuration A would add an
additional 1.1 acres contiguous to the main portion of the facility, and the remainder would be
contiguous to the 8 acres of ancillary parcels to the south. Configuration B would add an additional .75.
acres contiguous to the main portion, and 1.65 acres to the west of the 8 acres of ancillary parcels.19
The parcels of existing upland that would comprise the terminal facility are owned by the New Bedford
Redevelopment Authority, the Commonwealth, and several private owners with which the
Commonwealth is engaged in negotiations to obtain the necessary property rights. The Commonwealth
anticipates completion of those negotiations in the near future and does not anticipate the need to
relocate any water dependent users. With the exception of the two westernmost properties, the upland
parcels are undeveloped. Several businesses serving the industrial port occupy the four blocks between
Route 18 and the proposed CDF location. A "Mixed Use Business District" can be found across Route 18.
A residential area is in the "Mixed Use Business District" on the opposite side of Route 18 from the
proposed CDF. Another residential area is located south of Cove Street, near the southern ancillary
properties.
Main Upland Portion of the Proposed Marine Terminal Facility: The main upland portion of the
proposed terminal consists of approximately 13.4 acres, with approximately seven acres of the proposed
upland area abutting the Harbor waters, with the land sloping generally from west to east toward the
water. Historically, much of the existing upland that will be incorporated into the site is former heavy
industrial property, the former location of an extensive mill complex. The Potomska Mills, which once
stretched from the current intertidal area to beyond the western proposed terminal boundary, was
present at this location from the late 1800's until about 1936 (when it was demolished), and
encompassed an area of approximately 19 acres, more than half of which is within the footprint of the
proposed marine terminal. (See Figure 6 of the Commonwealth's January 18, 2012 submittal). A
wetland resource investigation of the proposed location was conducted confirming the presence of
historic filled tidelands between the historic high water line and the existing high water line. Most of
the area consists of urban fill including angular stone, soil, brick, gravel, asphalt, tar, concrete, steel,
automobile and truck parts, tires and inner-tubes, plastic and glass. Brick, asphalt, and trash were
identified within 15 inches of the surface, even in an area with hydric soils and wetland indicator species
(primarily invasive species). Urban fill underlies this wetland area as well and it appears to be one small
adjacent (neighboring) wetland which is degraded and not tidally influenced. There are no local water
supply wells or reservoirs located within the proposed Project area. .
19 Figures of these two configurations can be found in Attachment D to the Commonwealth's June 18, 2012
submittal and are included as Figures 4(a) and 4(b) to this Draft Determination.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 19
-------
Soil and groundwater sampling was conducted as part of a 21E assessment for this upland area.20 Soil
sampling revealed the presence of various contaminants with PCBs, Total Petroleum Hydrocarbons,
exceeding the MCP risk-based standard for S-3/GW-3 which the proponent identifies as the standards
considered applicable for the marine terminal after development. PCBs and EPHs also exceeded MCP
Upper Concentration Limits Lead was found in levels that exceed the limit that indicates the potential
for leaching into groundwater; however, none of the contaminants detected in groundwater exceeded
the MCP risk-based standards for category GW-3 or the MCP Upper Concentration Limits (UCLs). See p.
96 of the Commonwealth's January 18, 2012 submittal and Tables 3 through 7 for a summary of soil
sampling results; and page 101, Tables 8 through 12 for a summary of groundwater sampling results.
In addition, within a portion of this upland area is an asphalt cap, a remedy put in place pursuant to the
state hazardous waste cleanup law, to address a release of lead and PAHs in this area. See
Figure 1. An Activity and Use Limitation has been recorded to protect the cap and prevent
unauthorized use of the land.
Resource areas: Four primary resource areas were identified: (1) intertidal areas; (2) shallow, near-
shore subtidal areas (between -1 and -6 MLLW); (3) deeper, subtidal areas (between -20 and -25 MLLW;
and (4) a salt marsh area21. No federal resource areas or state protected wetland resources are present
within the ancillary properties. A resource area location map is included as Figure 5 of the 1/18/2012
submittal.22
The Project is located within the 100-year floodplain and in a non-attainment area for ground level
ozone. In addition, the proposed Project area provides fish and shellfish habitat, and is within an area
designated as essential fish habitat for 20 fish species. Approximately 25 priority bird species have also
been observed within or near the proposed Project area. See section 3.0 of the Appendix E for a
detailed description of aquatic resource functions and values.
There are no designated marine sanctuaries in or directly adjacent to the proposed Project area nor are
there Massachusetts Areas of Critical Environmental Concern (301 CMR 12.00).
While not identified as critical habitat, the roseate tern and the Atlantic sturgeon, both endangered
species, may be present in the proposed Project area. See Appendix I for further discussion concerning
Project impacts to these species.
An archeological investigation identified an intertidal and a subtidal area containing paleosols and an
area containing a shipwreck. The paleosols are located between the existing Gifford Street boat ramp
and.the southern edge of the proposed CDF. The shipwreck is located at the southern end of the
existing bulkhead at the north end of the beach area. No areas of historic significance were identified in
20 A full 21E investigation into the vertical and/or horizontal extent of potential contaminants has not been
completed as of the time of issuance of this Draft Determination.
21 Additionally there is a 0.1 acre wetland pocket on the upland portion of the site that will be filled.
22 Note Figure 5 was revised in Attachment N in the June 18, 2012 submittal from the original version in the
January 18, 2012 submittal.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 20
-------
the.upland portions of the CDF. See Appendix 42 of the 1/18/2012 for a summary of the archeological
investigations and map in Appendix 43.
Description of Proposed Work
Construction of CAD Cell 3
ACAD cell (maximum of 8.76 acres) will be created in the State-approved area (see 2003 DMMP)
between the Route 195 and Route 6 bridges for. disposal of the contaminated sediment generated from
dredging activities ("CAD cell 3").23 This is the third CAD cell to be constructed as part of the State
Enhanced Remedy. The SER CAD cells in New Bedford Harbor were constructed by first removing the
top few feet of contaminated organic silts since this material is unsuitable for open water disposal. This
unsuitable material has been disposed of within the navigational CAD cells. (The unsuitable
contaminated sediment from the top of navigational CAD cell 1 was disposed in the borrow pit CAD cell.
The unsuitable top of CAD cell 2 was disposed in CAD cell l.24) Once the unsuitable material is
removed, the underlying clean glacial sandier material is then excavated and either disposed at
permitted open water disposal sites or routed for,beneficial reuse.
CAD cell 3 will be similarly built and will provide for disposal of unsuitable material dredged from the
navigational channels (Gifford Street channel, approach and tug channels, (and portions of federal
channel and turning basin if dredging in these two areas is necessary)), the CDF footprint, and the
Gifford Street boat basin and mooring areas. The unsuitable material dredged from within the footprint
of CAD cell 3 and the sediment excavated from the drainage swale (referred to as "the drainage swale",
the "stormwater drainage swale", or the "tidal tributary") will be disposed of into CAD cell 2. The clean,
glacial sand will be mechanically dredged down to 45 feet below the existing harbor floor and placed
into scows for either offshore disposal or for transportation to a staging area on the main upland portion
of the proposed terminal to be used as fill behind the terminal bulkhead, as capping material for CAD
cell 1, the borrow pit, and for mitigation measures.
Capping of this CAD cell 3 will not occur as part of the construction of this Project in order to allow
sufficient consolidation and development of bearing capacity of the sediment disposed in the cell.
However, EPA's draft TSCA Determination, attached as Appendix J(l) includes capping requirements as
well as maintenance and monitoring requirements for this CAD cell 3 which will be performed over the
long-term.
23 See Appendices D through K of the 2003 DMMP for studies conducted by the Commonwealth regarding
potential resuspension and potential consequential environmental impacts associated with CAD construction.
24 Construction of CAD cells 1 and 2 and associated dredging were completed as part of the State Enhanced
Remedy, Phases II and III. See SER Phase II and SER Phase III workplans for a description of this work. A borrow pit
containing sediment dredged near State Pier was created outside of the SER process by the City of New Bedford as
part of its Municipal Harbor Plan process.
EPA Draft Determination for the Proposed South Terminal Project Page 21
New Bedford Harbor State Enhanced Remedy
-------
Disposal of dredged sediment into CAD cells 2 and 3 (once it is created) involves the deposition, via
split-hull scow, of material mechanically dredged into the CAD cells via gravity. The dredged sediment
will not be mechanically dewatered prior to placement, although some passive dewatering will occur
during material handling and transport. The scows will be properly located over the CAD cell and
operators will open the scow bottom to release the sediments. Minor re-suspension of sediment is
anticipated to take place during these activities. The work will be monitored to ensure it meets
performance standards for turbidity and other water quality.parameters. Excavation of the CAD cell will
be conducted using best management practices that will minimize environmental impacts, including
maintaining water quality performance standards. See Performance Standards and Significant
Substantive Requirements discussion below. Water quality performance standards are found in
Appendix Ctoof this Draft Determination.
Attachment A of the Commonwealth's June 29, 2012 submittal includes engineering plans for the 8.76
acre CAD cell (included'in the event all additional work is completed). Note: The engineering plans in
Attachment A of the June 18, 2012 submittal reflect a smaller proposed CAD cell 3 (6.3 acres).
)
The three current disposal cells (CAD cells 1 and 2 and the borrow pit) are functioning effectively to
contain approximately 200,000 cubic yards of navigational dredged sediment. A description of plume
tracking, toxicity testing, and water quality monitoring that was performed in 2009 during placement
operations at navigational CAD cell 2 can be found beginning on page 8 of the March 2011 Final - Fourth
Explanation of Significant Differences for the New Bedford Harbor Superfund Site, OU 1.
Capping of Borrow Pit and CAD cell 1 .
The purpose of capping CAD cells is to adequately isolate the contaminated dredge material in the CAD
cell from the environment. Capping requirements for CAD cell 1 and the borrow pit can be found in the
January 12, 2005 TSCA Determination (see Attachment 2 to Appendix J(l) of this Draft Determination.
The CAD cells will be capped in the same manner as described above using clean, suitable material of
sufficient thickness lo isolate the PCB-contaminated sediments physically, chemically and biologically
from the surrounding benthic environment. Compliance with the water quality and turbidity
performance standards must be maintained. A bathymetric survey shall be performed upon completion
of the cap placement. The CAD cell caps will be monitored to demonstrate their physical, chemical and
biological quality. This monitoring shall include bathymetric surveys, chemical sampling and sediment
camera work (as an alternative to benthic faunal enumeration). The frequency, of this cap monitoring
shall be at least annually for the first three years after cap placement, unless otherwise directed by EPA
New England. After three years, the Commonwealth may propose a revised schedule for monitoring.
Annual reporting will also be required. The location of the CAD cells will be included in all future
nautical charts of the New Bedford Harbor and anchorage restrictions will be implemented if necessary.
Navigational Dredging Associated with Construction of the Marine Terminal CDF
Navigational dredging, which will generate both contaminated sediments (less than 50 ppm PCBs) and
clean sand, is necessary to both widen and deepen the approach to the proposed terminal from the
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 22
-------
existing federal channel and turning basin, and to widen and deepen an area along the proposed
bulkhead of the CDF to allow deep water vessels, approximately up to 90 feet wide, access to and
berthing at the terminal. In addition to the 175 foot wide approach channel, a 100 foot wide tug
channel will run parallel to the approach channel. Tug boats are necessary to guide the longer barges
and international vessels that are expected to use the marine terminal to the bulkhead and into berthing
position, including those vessels transporting equipment and material to support the wind industry.
Shallow rock is located just below the harbor bottom within the proposed dredge footprint, primarily
along the northern portion of the eastern face of the proposed CDF bulkhead wall. This shallow rock
must be removed. The Commonwealth anticipates conventional removal of this rock with standard
excavating equipment; however, blasting may be necessary. As a result, impacts associated with
blasting are included in EPA's evaluation of this Project. Were blasting to occur, the Commonwealth
anticipates that the blast location would be in excess of 25 feet below the water column and the
maximum radius of impact will be approximately 50 feet. Access near the blast area must be restricted
in accordance with a health and safety plan, and the blast will need to be carefully controlled such that
there is no impact to adjacent structures or vessels. Silt curtains will be used around each blasting area,
as well as the use of non-explosive noise techniques to move fish from the immediate blast zone. Given
the location of the potential blasting activities and the location of the nearest paleosol area at the
southern face of the proposed bulkhead, the Commonwealth believes blasting will not adversely affect
either the subtidal or intertidal paleosol areas. (Blast design and biological parameters can be found on
pages 6-7 of Commonwealth submittal dated 6/18/2012. Additional blasting conditions can be found in
Appendix E and on p. 12 of the Commonwealth's ARARs letter dated June 18, 2012 which is attached as
Appendix D to this.Draft Determination. Draft proposed construction specifications and design
requirements for blasting can be found in Attachment B to 6/18/12 submittal.)
Limited dredging, called floatation dredging, will occur first in the beach area to create a work zone and
allow equipment access in the water to install the sheet pile wall and pilings for the terminal. Once the
sheet pile wall and pilings are installed to create the filled portion of the CDF, navigational dredging
seaward of the wall will occur to varying depths, based on the depths of anticipated vessels that will use
the marine terminal. Much like the creation of CAD cell 3, the top layer of contaminated sediment will
be removed and disposed of into CAD cell 2. Deeper, clean sand will be removed and staged for reuse
or disposed offshore.
Below is a summary of the various dredging depths; specific details and additional maps may be found in
the administrative record. .
Piling area along seaward edge of CDF: This area will be dredged to a slope with depths ranging from -5
MLLW to -14 MLLW on the southern side of the dredge footprint and -25 MLLW to -32 MLLW on the
northern side of the dredge footprint. A concrete blanket will cover the surface of the piling area with a
rip-rap type material to protect the piling area from propeller wash.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 23
-------
Deep draft along the seaward side of the CDF: Approximately 600 feet in length will be dredged to -32
MLLW from a depth of-30 to -32 feet MLLW at the northern portion of the sheet pile wall.25
Approach channel: Beginning at the northern federal channel turning basin, running south, a 175 foot
wide channel will be dredged to varying depths ranging from -32 MLLW in the northern portion to -14
feet MLLW in the southern portions of the channel.26
Tug channel: Parallel to the approach channel, a 100 foot wide tug boat channel will be dredged to -14
MLLW. ¦
Gifford Street Boat Ramp: Because the CDF footprint will fill a portion of the existing Gifford Street
navigation channel located adjacent to the Gifford Street Boat Ramp, a new relocated navigation
channel will be dredged. The dredging of the approach channel for access to the proposed marine
terminal will also displace some navigational boat moorings. As mitigation, two new mooring areas will
be created. The northern area is already at depth; the southern area will require some dredging to
achieve the desired depth.
Although uncertain at the time of this Draft Determination, certain areas of the federal channel and
turning basin may need to be dredged to remove harbor bottom that is currently above the desired
i
depth of-32 MLLW (up to 13.26 acres). In light of this uncertainty, the impacts to subtidal resources
from this potential dredging have been evaluated in this Draft Determination. Attachment R to the
Commonwealth June 18, 2012 submittal depicts the areas of the federal channel to be dredged and is
attached to this document as Figure 6 for reference.
See Appendix 37 of the 1/18/2012 submittal for sampling results in the federal channel areas that may
be included in this project.
Contaminated sediment generated from navigational dredging associated with CDF footprint and
deepening of the channels will be disposed in CAD cells 2 and 3. Clean navigational dredged sand will be
used as fill within proposed CDF, for CAD capping, mitigation, or disposed offshore consistent with an
already issued permit for such offshore disposal.
Dredging will be conducted using best management practices that will minimize environmental impacts,
including maintaining water quality performance standards. See Performance Standards and Significant
25 The City of New Bedford has requested that additional deep draft dredging occur along either the northern or
southern portion of the northern end of the sheet pile wall; however, City funding for this work is not currently
available. In light of this request, EPA has included in its impacts evaluation an additional 1.28 acres (from -20
MLLW to -32 MLLW) for potential northern expansion and 0.62 acres (from -14 MLLW to -32 MLLW) for southern
expansion.
26 The Commonwealth notes it is possible the width of this channel may need to be expanded an additional 50 feet
in width if vessel significantly wider than the anticipated 90 foot wide vessels were to use the terminal. This
proposed expansion would take place in both the federal channel and.in the approach channel, beginning at the
federal turning basin. Given this possibility, impacts associated with this expansion were evaluated in this Draft
Determination.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 24
-------
Substantive Requirements discussion below.
Appendix C of this Draft Determination.
Water quality performance standards are found in
Proposed South Terminal CDF .
To support offshore renewable energy development, particularly the wind industry, the Commonwealth
identified certain criteria that define the terminal, including the following:
• Horizontal clearance of at least 130 feet to accommodate expected widths of international
vessels;
• Jack-up barge access (which requires a stable harbor bottom);
• Overhead clearance of at least 250 feet to accommodate the height of cranes and spuds of the
installation vessels;
• Total wharf and yard upland area of at least 28 acres;
• Berthing space of at least 1,200 linear feet to accommodate one international vessel and two
jack-up barges at any one time;
• Site control and availability; and
• Proximity to future offshore facilities.27
The 28.25 acre site consists of a 6.85 acre CDF, approximately 11 acres of adjacent upland, and
approximately 8 acres of ancillary properties (see page 19 and footnote 19 for full description of
acreage). The Commonwealth anticipates that ancillary properties will primarily be used for wind blade
storage when the CDF is used to support renewable energy.
To create the proposed facility, an existing sheet pile wail in the south terminal area (the Shuster
property) will be extended to the south, running approximately parallel to the shoreline, then turning
southwest and then toward the shore. This wall of linked coffer dams (round circles linked together) will
form a bulkhead of approximately 1200 linear feet. Riprap will be installed along the southern side of
the wall to protect the paleosol areas and to protect the southern face from erosion that could impact
the existing salt marsh. In addition, the southern face of the terminal would be graded away from the
edge, toward a stormwater collection interceptor trench which also is designed to collect stormwater
that flows toward the south. A pile supported concrete apron supporting a utility corridor will extend
seaward over the coffer dam wall. The pilings will be located on approximately 16 x 16 foot grid and a
concrete blanket will be installed (with a rip-rap type material) to protect this piling area from propeller
wash. See Figure 2 of 1/18/2012 submittal and 100% construction design plans in Attachment A of the
Commonwealth June 18, 2012 submittal. (See Binders S and T, with Index in T in Attachment A.)
Once the wall is secured, dredging will occur along the seaward side of the wall and the area behind the
wall will be backfilled with clean dredged material to mean high water. All material generated from
dredging and used as backfill in the terminal will meet the same parameters as those required for
offshore disposal. The remaining four to five feet above mean high water to the bottom elevation of the
cover (described below) will be filled and covered as part of the upland area 21E remediation.
27 See p. 18-19 of the Commonwealth's June 18, 2012 submittal for additional criteria.
EPA Draft Determination for the Proposed South Terminal Project Page 25
New Bedford Harbor State Enhanced Remedy
-------
Construction of the CDF includes filling of a portion of the existing navigation channel to the adjacent
Gifford Street Boat Ramp. This area has been identified as one of the ancillary parcels to be used as a
lay down area for storing wind turbine components. Thfe Gifford Street Boat.Ramp will have limited
access during that time. The Commonwealth represents that the parcel will be reopened for full
recreational boating access once more conventional uses are conducted at the proposed marine
terminal.
Upland 21E remediation: _As stated above, sampling conducted as part of the 21E process on the
approximately 11 acres of the upland area that will be incorporated into the marine terminal revealed
soils contaminated with, among other things, PCBs greater than 1 ppm and lead with concentrations
that qualify it as a characteristic hazardous waste under RCRA. As a result, this area will be remediated
independently by the Commonwealth as part of its 21E/MCP process under the direction of a Licensed
Site Professional as required by state law. Federal TSCA regulations will also apply to the remediation;
any remiediation performed at this upland area must be conducted consistent with EPA's TSCA
Determination attached to this Draft Determination as Appendix J(l). This area will not be addressed as
part of the New Bedford Harbor Superfund Site or under any CERCLA authority28. The Commonwealth
anticipates excavating all 13.4 acres of the upland area, including the existing asphalt cap area that was
the subject of a past 21E remediation, and stockpiling the material onsite. Soils with PCB concentrations
exceeding 25 ppm will be trucked offsite to a licensed TSCA landfill. The remaining soil will be evaluated
for its structural stability to support the heavy loNads anticipated during use of the terminal to support
renewable energy and future cargo shipping. If determined to be sound, the soil will be backfilled from
areas of excavation and will be used to backfill the area behind the bulkhead above mean high water but
below the bottom grade of the cover. Because this backfilled soil will contain PCB concentrations up to
25 ppm as well as characteristic lead, a protective cover must be put in place over the entire terminal
along with an Activity and Use Limitation (AUL) on the property. The remediation, including the
disturbed area of the prior 21E cleanup, will achieve a status of No Significant Risk remedial action
outcome in accordance with the state c. 21E program. In addition, a groundwater monitoring plan and
long-term operation and maintenance plan will be required consistent with the TSCA Determination.
28 To the extent it may be useful to understanding the Commonwealth's plans with respect to the state cleanup of
the upland area, EPA includes the following evaluation: If CERCLA did assume jurisdiction over this remediation,
RCRA requirements would be evaluated and would take into account that material that could qualify as
characteristic waste (lead).may be present. RCRA is applicable to treatment, storage and disposal of hazardous
waste generated after 1980. Because soil excavation and backfilling will occur within an Area of Contamination
(onsite, in the same location, etc.), waste is not being generated and, therefore, RCRA is not applicable. Because
there is the possibility that material that is remaining within this AOC would be hazardous waste based upon its
characteristics if it were generated, EPA could determine that RCRA Subtitle C requirements, including
requirements for an impermeable cover (to prevent leaching) were relevant and appropriate (c. 21E does not
incorporate the concept of relevant and appropriate). However, because this area is not a drinking water source
and because lead was not found in groundwater sampling, EPA would determine that these requirements were not
appropriate. As a result, RCRA Subtitle C requirements would not be identified as relevant and appropriate
requirements under CERCLA. A hybrid cap which prevents direct contact would then be appropriate, along with
property use restrictions and long-term monitoring and maintenance requirements. See EPA guidance "RCRA
ARARs: Focus on Closure Requirements", OSWER Dir. 9234.2-04FS (October, 1989).
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 26
-------
(See the Commonwealth's response to USEPA June 23, 2012 TSCA-Related Questions for additional
details.)
The cover placed on the CDF and upland area shall function as a barrier to direct contact exposure to the
contaminated soil. Given the heavy loads anticipated on the terminal, an asphalt or concrete cap is not
deemed feasible. Such load will result in surface cracks. Therefore, the cover shall consist of, at
minimum, three feet of Dense Graded Aggregate which is a mixture of gradations of aggregates, and
shall be consistent with the attached TSCA Determination (see Appendix J(l) of this Draft
Determination). Small parts of this proposed terminal may be paved for access driveways, equipment
pads and hardstand areas. The site will be graded so that sheetflow is toward the permanent catch
basins.
Compaction of the filled area and the adjacent upland portion of the main part of the terminal will be
necessary to support the anticipated heavy loads prior to installing the cover. (The design supports a
uniform live load of 20 tonnes (metric tons) per square meter or approximately 4,098 pounds per.square
foot.) Vibration and conventional methods will be used for compaction. The area will then be graded
and capped as described above.
The ancillary properties shown on Attachment D to the Commonwealth's June 18,.2012 submittal will
require some work in order to make them viable for use of the CDF to support the wind industry. One
property with existing overhead restrictions (Map 31, Parcel 234 - owned by N.B. Radio, Inc.) will only
be used as a laydown area for wind industry equipment and will not be used for pre-assembly of wind
turbines or loading of equipment onto vessels. In addition, one of the properties in configuration A (See
Attachment D of the June 18, 2012 Commonwealth submittal) has a wetland present; if this
configuration is incorporated into the terminal site, further evaluation of the wetland impacts and
appropriate mitigation will be necessary.
Performance Standards
The Commonwealth has collected water column samples to provide pre-dredged conditions at the
proposed location of the Project to assess potential contamination in the water column that may affect
the water quality from Project activities. (See Appendix 36 of the Commonwealth's January 18, 2012
submittal.) Turbidity monitoring will be performed around ajl dredging, capping and bulkhead
construction work locations. Silt curtains will be required around any capping, dredging, or other in-
water work between January 15 and June 15 of any year to protect fish windows. Silt curtains will also
be required at all times around any filling area that is not completely enclosed (such as behind the
proposed bulkhead). Water Quality performance standards, which represent the minimum actions that
must be taken, are attached to this Draft Determination as Appendix C. Should these performance
standards be exceeded, engineering controls that, at a minimum, will include use of silt curtains and
absorbent booms, will be implemented. If performance standards are still exceeded, the work will stop
until the problem is addressed in a way to prevent further exceedences. See also Appendix E for
additional standards relating to dredging and disposal.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 27
-------
An air monitoring program wi|l be conducted throughout the construction process for land-based work
and an air monitoring plan, consistent with Appendix A (Minimum Air Monitoring Plan Requirements)
and the TSCA Determinations for this proposed Project, shall be submitted to EPA. At a minimum, four
air monitoring stations will be established around the land-based construction area with daily
measurements of particulate matter. Air monitoring results will be made available to the surrounding
communities. Best management practices such as keeping exposed soil surfaces treated or wet,
covering soil piles and unconsolidated materials when not in use, and providing enclosed areas for fine
materials will be included for dust suppression. Stationary emergency or standby engines installed at
the construction area as well as construction equipment shall meet state and federal emission standards
including the use of ultra low sulfur diesel fuel. Noise levels will be controlled through the use of
mufflers and time of day operating restrictions. To the extent practicable, measurements will be
collected daily for noise along the boundary of the land-based construction area and will be reported to
the surrounding communities. See further discussion of these measures on pages 45-49 of the
Commonwealth's June 16, 2012 submittal.
Prior to the start of construction, the paleosol areas will be marked and no equipment will be allowed
within or floating above this area. Further, no dredging or other work activities will take place within
100 feet of this area without a temporary excavation support (anticipated to be in the form of sheet
pilling to support the paleosols.)
Best management practices will be used during construction of the proposed marine terminal. Solid
waste will be disposed of in portable dumpsters and transported offsite to a licensed municipal disposal
facility. Supply and storage areas will be covered when not in use. Materials likely to be stored on the
proposed terminal include wood, construction material, sheet piles, lubrication products, oil and grease,
gas, paint, coating material and construction equipment. A decontamination area with a temporary
polyethylene liner will be established near the construction entrance with hay bales and silt fencing in
place downgradient of the decontamination area. This area will be inspected daily and cleaned as
necessary.
Stockpiled clean dredged material to be used as fill for the GDF or the upland area that is left for more
than 15 days, shall be treated with air dried wood chip mulch or seeded with perennial fescue-grass.29
For upland work, silt fencing will isolate excavated, stockpiled soil. Soil piles with slopes greater than
10% will be surrounded by a berm and swale system. Stockpiled material associated with the upland
excavation and backfilling left for more than 7 days shall be treated with air dried wood chip mulch or
seeded with perennial fescue-grass.
Stormwater will be managed according to a Storm Water Pollution Prevention Plan (SWPPP )that will be
finalized in the design documents. The stormwater system will be designed and operated to ensure
discharges from the proposed CDF do not cause or contribute to a violation of water quality standards.
The focus of the program will be to control erosion and sedimentation resulting from movement of large
quantities of earth material and to control runoff from the clean, dredged material used as fill.
29 In its June 29, 2012 submittal, the Commonwealth rescinded the use of tackifiers and polymer emulsions as
stabilizing measures for stockpiled soil that was presented in its January 18, 2012 submittal.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 28
-------
In general, stbrmwater will be rerouted around the construction area using swales, diversions,
checkdams and temporary sediment basins. Sediment and erosjon controls will prevent sediment
runoff into the Harbor waters without prior treatment for suspended solids and other TMDL limits.
Outfalls in the northern portion of the proposed CDF will be extended through the new sheet pile wall to
ensure stormwater does not discharge into the bulkhead area. Existing pipelines will be modified and
strengthened or replaced as necessary to accommodate loads from filling, storage, truck traffic and
heavy equipment, including the 600 ton cranes needed to transfer wind turbine equipment on and off
the proposed CDF from and back onto vessels waiting along the bulkhead.
An Activity and Use Limitation pursuant to M.G.L. c. 21E will be recorded for the entire filled and upland
area of the terminal, Any development or activity on the proposed CDF shall be designed, implemented
and maintained in a manner to prevent any release or exposure to any material contaminated with PCBs
at greater than 1 ppm concentration. Institutional controls will be.implemented that prohibit use or
contact with groundwater, that prohibit activities that would adversely affect the cap, and that prohibit
any land use activities that were not considered as part of the TSCA determination. Once completed,
the Commonwealth will secure a M.G.L. c.91 license as well as other regulatory permits for use of the
CDF.
Mitigation Measures
To compensation for impacts caused to resource areas, the Commonwealth is required to implement
the following mitigation measures:
1. Creation/enhancement of 4.47 acres of intertidal habitat and 14.91 acres of subtidal habitat
south of the hurricane barrier in the area of the Superfund pilot cap;
2. Creation/enhancement of 1.9 acres of a combination of successional marsh in a tidal tributary
along the western end of the hurricane barrier;
3. Creation of 22.73 acres of winter flounder habitat in the Outer Harbor
4. EPA recommends reseeding of 24,542,803 shellfish over 10 years given the expected 40%
survival rate; and
5. Completion of Tern Monitoring Program
Addition of clean sand to existing Superfund pilot cap located south of hurricane barrier to create or
enhance 19.38 acres of aquatic habitat: This mitigation will consist of creation/enhancement of 4.47
acres of intertidal habitat and 14.91 acres of subtidal habitat through the placement of suitable dredged
material outside the Harbor, adjacent to the hurricane barrier between the barrier and the existing
Superfund pilot cap30. This mitigation creates intertidal and subtidal areas with clean sand generated
from dredging activities while simultaneously capping and isolating sediments with less than 10 ppm
30 Page 6 of the 1998 ROD identified two areas located just south of the hurricane barrier in the outer harbor as
containing sediment with PCB concentrations greater than the lower harbor cleanup level of 50 ppm and
determined that these areas would be addressed on an interim basis as part of the remedy. A pilot underwater
cap was placed in 2005 over one of the areas of contaminated sediment to evaluate the performance of an
underwater cap in the outer harbor. See Figure7 for location of the cap. Additional information about the pilot
underwater cap may be found at www.epa.gov/nbh.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 29
-------
PCB contamination. This will enhance spawning and foraging areas for winter flounder, scup, black sea
bass and windowpane flounder, shellfish habitat, and horseshoe crab habitat. See Attachment A of the
Commonwealth's June 29, 2012 submittal for engineering plans for this area.
Hurricane barrier vegetated swale rehabilitation and restoration: Conditional upon the U.S. Army Corps
of Engineers' concurrence, in accordance with 33 U.S.C. § 408 that the channel design will have no
adverse effect on the operation of the Hurricane Barrier, this mitigation will consist of
creation/enhancement of 1.9 acres of a combination of successional marsh area (mudflat, low marsh,
high marsh, and transitional area) within the tidal tributary area behind the hurricane barrier between
Cove and Gifford Streets. This involves removal of some of the PCB contaminated sediment that has
filled the tributary, disposal of that material in CAD cell 3 and capping the area with clean material and
grading to prevent direct contact with the remaining residual impacted sediment. Replanting with
native wetland plants and installation of a public access walkway/bike path adjacent to the newly
created marsh area will also be part of this mitigation measure. A monitoring program will be
implemented to protect against invasive species. This mitigation measure will enhance the hydraulic
capacity of the tidal tributary to transport stormwater from behind the Barrier and will enhance
spawning and foraging areas for winter flounder, scup, black sea bass and windowpane flounder, and
enhance foraging area for avian wildlife identified within the resource delineation. See Attachment A of
the Commonwealth's June 18, 2012 submittal for plans and cross-sections for these mitigation activities.
Creation of 22.73 acres of winter flounder habitat in Outer Harbor:31 This measure consists of filling a
relative depression west of the Federal Channel, immediately north of the Butler Flats lighthouse. The
eastern edge of the area to be filled (the edge closest to the channel) is 90 feet from the western
boundary of the Federal Channel. Clean navigational dredged fill will be placed in this area to raise the
elevation from -20 MLLW to a depth of approximately -16.4 MLLW.
Shellfish seeding: To compensate for the approximately 9,817,121 shellfish lost during filling and/or
dredging operations, the seeding proposed is designed to provide between 1,000,000 and 2,000,000
seed per year for the next five to ten years in order to provide approximately 9,817,121 seed for this
project. See Attachment E of the Commonwealth's June 18, 2012 submittal and Attachment A of the
June 29, 2012 submittal for engineering plans for this area. Given the expected 40% survival rate, EPA
recommends reseeding of 24,542,803 shellfish over 10 years to replace 9,817,121 impacted shellfish.
Completion of the Tern Monitoring Program: The Commonwealth is proposing a survey to confirm the
presence of foraging habitat as well as tern use of the area. As terns are migratory, birds, the best time
to conduct the survey would be from May to mid June timeframe with boat transects completed once
every 2 weeks to count the type and number of terns flying over the transect. If this proposed Project is
approved, the Commonwealth anticipates conducting the survey during the Spring/Summer of 2013.
31 Acreage proposed for Winter Flounder habitat was increased from the original 17.73 acres presented by the
Commonwealth in its January 18, 2012 submittal to the present 22.73 acres in its June 18, 2012 submittal. The
additional mitigation was added to compensate for the potential federal channel dredging and potential widening
and deepening of the deep draft channel; however, because this additional work is uncertain at this time, there is
no commitment from the Commonwealth to perform this increased mitigation work.
EPA Draft Determination for the Proposed South Terminal Project Page 30
New Bedford Harbor State Enhanced Remedy
-------
CERCLA Requirements
The proposed Project complies with CERCLA § 121:
The Proposed Project is Protective of Human Health and the Environment
As described more completely in Sections V and VI of the 1998 ROD, EPA found that PCB
contamination to result in unacceptable risks to human health and the environment. The biggest
human health risk was found to be from frequent (e.g., weekly) ingestion of local seafood, although
unacceptable risks were also found from frequent human contact with PCB-contaminated shoreline
sediments or soil. Ecologically, EPA's investigations concluded that the harbor's marine ecosystem is
severely damaged from the widespread sediment PCB contamination. Dredging and isolation in CAD
cells, with eventually capping, will much more quickly sequester approximately 240,000 cubic yards of
PCB contaminated sediment that would likely not be addressed by the Superfund dredging, depending
on the concentrations (Superfund cleanup levels are 50 ppm PCBs for the lower harbor and salt
marshes; 25 ppm for beachcombing areas; and 1 ppm for residences32). The great majority of PCB
concentrations in sediment in the proposed Project area are below 50 ppm. Dredging will also remove
heavy metals in sediment that are co-located with PCBs. These actions enhance the 1998 ROD by
further reducing the likelihood of a direct contact and incidental ingestion of contaminated sediment
along the existing beach area. In addition, dredging and isolation of the contaminated sediment in
intertidal and subtidal areas removes the availability of PCB contamination to aquatic life, particularly
those that bioaccumulate PCBs which has led to the Site's risk from consumption of fish. See Section VI
of the 1998 ROD for a more detailed discussion of the Superfund site risks.
In addition, although it will be conducted independently by the Commonwealth through its state
cleanup program, the upland remediation work will address soil contaminated with PCBs and other
contaminants that would not otherwise be addressed in the forseeable future if this proposed Project
did not occur. PCBs greater than 25 ppm in soil will be excavated and disposed offsite; remaining
contaminants will be capped with a state and TSCA-compliant engineered barrier to prevent direct
contact with contamination.
Both the CADs and the upland caps will be remain protective through long-term operation and
monitoring plans, and through land use and navigational restrictions as necessary.
The Proposed Project Utilizes Permanent Solutions and Alternative Treatment or Resource
Recovery Technologies to the Maximum Extent Practicable
The proposed Project provides a permanent solution to the widespread and persistent PCB
contamination in the lower harbor sediment. CADs (and the CDF to the extent any remaining sediment
32 The 1998 ROD also includes a cleanup level of 10 ppm for the upper harbor subtidal and mudflat sediment.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 31
-------
after dredging the CDF footprintis contaminated) permanently isolate these sediment from human and
environmental receptors by containing them in perpetuity using a safe and protective technology.33
The Proposed Project Does not Satisfy the Preference for Treatment as a Principal Element
The proposed Project does not use treatment of the PCB-contaminated sediment as a principal element.
Protection against site risks posed by these sediments (particularly aquatic exposure and seafood
consumption resulting from bioaccumulation in fish tissue) is provided by removing and permanently
isolating them in CADs (and to the extent there is contaminated sediment left in the CDF footprint after
dredging) in a CDF. Treatment of the dredged sediment is not necessary since CADs are protective
whether or not sediments contained within them are treated. Treatment would add additional short
term risks due to the material handling and emissions that would result and, although not calculated for
this proposed Project, treatment would likely add significant cost to this project without added
protectiveness.34 ' .
The Proposed Project is Cost Effective
The Commonwealth has not provided cost information that would enable EPA to analyze the cost-
effectiveness of this particular proposed Project; however, no Superfund money will be used to finance
the proposed Project.
The Proposed Project Attains ARARS
A detailed discussion of how this proposed Project complies with ARARs follows below.
Significant Substantive Requirements
Because EPA has integrated the State Enhanced Remedy into the 1998 ROD, this proposed Project must
comply with §121(d) of CERCLA35 and §300.450 of the NCP which requires the work to meet the
33 EPA recently issued an Explanation of Significant Differences to the 1998 ROD in which it selected use of a CAD
for certain dredged sediment in the lower harbor and the southern part of the upper harbor. In that document
EPA presented its basis for finding that CADs are safe and protective. See March 2011 Final - Fourth Explanation
of Significant Differences for Use of a Lower Harbor CAD cell (LHCC), New Bedford Harbor Superfund Site, Operable
Unit #1, New Bedford, Massachusetts. All the administrative records for the New Bedford Harbor Superfund site
are incorporated by reference into this administrative record and are also available at the New Bedford Public
Library, EPA's Superfund Record Center and www.epa.gov/nbh.
34 EPA did investigate various treatment technologies for the significantly more contaminated sediment dredged
from the upper harbor hot spot area. Based on community concerns about air emissions from the various
treatment technologies and costs, EPA's 1999 Amended Record of Decision selected offsite landfilling at an
appropriately.licensed facility. See the Amended Record of Decision for the New Bedford Harbor Hot Spot,
Operable Unit 2, issued April 27,1999. All the administrative records for the New Bedford Harbor Superfund Site
are incorporated by reference into this administrative record and are also available at the New Bedford Public
Library, EPA's Superfund Record Center and www.epa.gov/nbh.
35 Under Section 121(d)(1) of CERCLA, [r]emedial actions selected under this section or otherwise required or
agreed to by the President... shall attain a degree of cleanup of hazardous substances, pollutants, and
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 32
-------
substantive requirements of all applicable or relevant and appropriate regulations (ARARs).36 Simply
described, an applicable requirement is a cleanup standard, standard of control and other substantive
environmental protection requirements, criteria or limitations promulgated under Federal or State law
that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or
other circumstance at a CERCLA site. Relevant and appropriate requirements are those cleanup
standards, standards of control, and other substantive environmental protection requirements, criteria,
or limitations promulgated under Federal or State law that, while not "applicable" to a hazardous
substance, pollutant, contaminant, remedial action, location, or other circumstances at a CERCLA site,
address problems or situations sufficiently similar to those encountered at the CERCLA site that their use
is well suited to a particular site.37 In addition, there are non-promulgated advisories or guidance issued
by Federal or State government that are not legally binding and do not have the status of potential
ARARs. However, in many circumstances this material, referred to as non-promulgated but "To Be
Considered" ("TBC"), will be considered along with ARARs as part of the sit risk assessment and may be
used in determining the necessary level of cleanup for protection of health or the environment.38
Tables reflecting the federal substantive requirements for this proposed Project are presented in Table 2
of this Draft Determination. A summary of the more significant federal requirements follows below.
Appended to this document, as noted, are more detailed descriptions of these requirements and actions
to be taken to comply with the requirements.
State ARARs were identified by the Commonwealth in a submittal provided to EPA on June 18, 2012.
That submittal supplemented and updated prior submittals of the Commonwealth that identified state
substantive requirements. Copies of these submittals are included with this Draft Determination as
Appendix D.
Section 404 of the Clean Water Act (33 U.S.C. §1344)
Section 10 of the Rivers and Harbors Act of1899 (33 U.S.C. § 403)
Wetland Executive Order 11990
Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material into waters of the
U.S. except in compliance with the requirements of the § 404(b)(1) guidelines (40 C.F.R. Part 230). In
contaminants released into the environment and of control of further release at a minimum which assures
protection of human health and the environment.
36Section 300.430 (e)(9)(iii)(B)provides that remedial alternatives "shall be assessed to determine whether they attain
applicable or relevant and appropriate requirements under federal environmental laws...." Further, Section 300.430 (f) (1)
(ii))(B) of the NCP provides "On-site remedial actions selected in a ROD must attain those ARARs that are identified at the time \
of ROD signature or provide grounds for involving a waiver under Section 300.430(f)(l)(ii)(C)." While ARARs for the
enhancement work were not identified in the Proposed Plan or ROD, it was made very clear in those documents and in EPA's
response to comments that although no permits would be required, the enhancement work had to meet the substantive
requirements that a permitted facility must meet.
37 CERCLA Compliance with Other Laws Manual: Interim Final, OSWER/EPA/540/G-89/006 (August 1988), p. 1-10.
38 ]d. at p. xiv.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 33
-------
particular, the guidelines prohibit, among other things, discharges into wetlands and other waters if
there is a practicable alternative to the proposed discharge which would have less adverse impacts on
the aquatic ecosystem. They also prohibit discharges that would cause or contribute to violations of
state water quality standards; jeopardize the continued existence of an endangered or threatened
species or result in the likelihood of the destruction or adverse modification of such species' critical
habitat; or cause or contribute to significant degradation of waters of the U.S. Finally, they require all
appropriate.and practicable steps to be taken to minimize potential adverse impacts of the discharge on
the aquatic ecosystem, including compensatory mitigation for any unavoidable impacts. After careful
review of the Commonwealth's submittals and based on the information provided in those submittals,
EPA has tentatively determined that the Project satisfies the § 404(b)(1) guidelines provided that ,
specified minimizing and mitigating measures are employed. EPA has similarly concluded that the
' Wetland Executive Order has been satisfied. The basis for EPA's determinations is set out in Appendix E
to this Draft Determination. EPA is specifically requesting public comment on EPA's determination
that the Project represents the least environmentally damaging practicable alternative and that it
satisfies the other requirements of the § 404(b)(1) guidelines.
Section 10 of the Rivers and Harbors Act prohibits the obstruction or alteration (including dredging) of
any navigable water of the U.S. unless it is determined that the activity is not contrary to the public
interest and otherwise complies with all applicable federal laws. EPA has considered all relevant factors
associated with the proposed South Terminal Project and has preliminarily determined that the
proposed Project is not contrary to the overall public interest. EPA will need to conclude coordination
with Federal and state resource agencies in several areas before a Final Determination can be made as
to whether this proposed Project meets all requirements.
For a more detailed discussion, See Appendix E to this Draft Determination.
Section 402 of the Clean Water Act, (33 U.S.C. § 1342)
Section 301 of the CWA, 33 U.S.C. § 1311, generally prohibits the discharge of pollutants into waters of
the U.S. except in compliance with various sections of the Act, including Sections 402 and 404, 33 U.S.C.
§§ 1342 and 1344. Section 402 authorizes discharges subject to the requirements of National Pollutant
Discharge Elimination System ("NPDES") permits. Among the discharges regulated by the NPDES permit
program are certain storm water discharges, specifically those from regulated municipal separate storm
sewers systems ("MS4"); those associated with industrial activity as defined in 40 C.F.R. § 122.26(b)(14);
those associated with construction activity as defined in 40 C.F.R. § 122.26(b)(15); and those specifically
designated as needing a storm water NPDES permit under EPA's residual designation authority. The
NPDES-regulated discharges at the South Terminal Project that are under consideration as part of the
State Enhanced Remedy ("SER") are storm water discharges associated with construction activities.
Operators of projects subject to EPA's storm water construction regulations must comply with the terms
and conditions contained in EPA's Construction General Permit (CGP). Based on the information
contained in the Commonwealth's submission entitled State Enhanced Remedy in New Bedford, South
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 34
-------
Terminal (January 18, 2012), EPA has tentatively concluded that if the construction operations and
storm water management measures are undertaken as described, the storm water discharges should
meet the terms of the CGP. This tentative conclusion is conditioned upon the Commonwealth's
updating and completion of its Storm Water Pollution Prevention Plan to address all of the elements of
the CGP no later than fourteen (14) days before land disturbing activities take place, and on the
Commonwealth's implementation of the SWPPP consistent with the terms and conditions of the CGP.
For a more detailed discussion, see Appendix F to this Draft Determination.
Navigation and Navigable Waters, 33 USC 408
This statue makes it unlawful for any person to impair the usefulness of any sea wall, bulkhead, jetty,
dike, levee, wharf, pier, or other work built by the United States, unless permission is granted based
upon a determination that such occupation or use will not be injurious to the public interest.
The Commonwealth, through a private contractor, evaluated the effects of dredging in the vicinity of the
hurricane barrier. After conducting a slope stability analysis, it was determined that dredging would not
have an adverse impact on the hurricane barrier. A copy of that analysis is attached to the
Commonwealth's June 18, 2012 submittal as Attachment Z.
The Corps of Engineers is reviewing the channel design to assure there will be no adverse effect on the
operation of the Hurricane Barrier. EPA will coordinate with the Corps to make sure any concerns are
addressed before EPA's final decision on the project.
National Historic Preservation Act, 16 U.S.C. §470, 36 CFR Part 800
Section 106 of the National Historic Preservation Act requires Federal Agencies, in consultation with
other interested parties, to consider the effects of their undertakings on historic properties prior to the
undertaking. To the extent that EPA's issuance of this Draft Determination is considered a Federal
undertaking, EPA is required, after consultation, to determine what effect its tentative determination
could have on historic properties in advance of issuing its Final Determination.
Two paleosol areas were found in the subtidal vicinity of the proposed Project. Both the State Historic
Preservation Officer ("SHPO") and the Massachusetts Board of Underwater Archeological Resources
("MBUAR") requested that the Project planners consider alternatives to avoid adverse impacts to the
paleosol areas. In addition, EPA and the Commonwealth engaged in consultation with the. Wampanoag
Tribe of Gay Head (Aquinnah), and the Mashpee Wampanoag Tribe regarding these soils. In accordance
with comments from the consulting parties, the footprint of the proposed CDF was altered to avoid
impacts to the paleosols. Neither the SHPO nor MBUAR have objected to, or raised concerns regarding,
the redesign of this proposed CDF, and the Tribes have indicated that they are satisfied with the
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 35
-------
proposed redesign. In addition, the Commonwealth and Tribes have agreed that the Tribes will be
provided with the opportunity to monitor construction activities.
A shipwreck was also identified in the subtidal portion of the Project. The SHPO and MBUAR have
agreed that the shipwreck does not meet the Criteria of Eligibility for listing in the National Register of
Historic Places," and that no further investigation is warranted.
In addition to providing the Tribes with an opportunity to monitor construction activities, the
Commonwealth will take other steps to limit or avoid adverse effects including having a suitably trained
archeologist on board dredging vessels to monitor ground disturbing activities and to follow its policies
and procedures should unanticipated archeological resources or human remains be discovered.
An assessment of the original 12 acre upland area conducted in 2010 concluded that no additional
cultural resources background research or archeological subsurface investigation was necessary in the
upland area. Since completion of this assessment, however, the size of the upland area has significantly
increased from 12 acres to approximately 21.4 acres to allow for additional lay down space. The
Commonwealth has committed to undertake additional assessments, including archeological
assessments, as it finalizes the fully delineated site.
EPA has reviewed all of the archeological investigations concerning the areas projected to be impacted
by the proposed Project and considered the input of the consulting parties including the SHPO, MBUAR,
the Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag Tribe. In light of the
investigations, project design modification, determinations and conditions discussed above, it is EPA's
intent to propose a finding of no adverse affect for the subtidal and intertidal areas as long as the
Commonwealth agrees to abide by the conditions imposed by the Tribes. In accordance with the
applicable regulations, EPA will notify the consulting parties of this finding. If the SHPO and Tribes agree
with the finding or do not provide a response within 30 days of its receipt, EPA may proceed with its
approval of the proposed Project. EPA cannot, however, conclude the Section 106 consultation process
in connection with the upland area until a final assessment of the entire area is completed, and
consulting parties are appropriately engaged.
For a more detailed discussion, see Appendix G to this Draft Determination.
\
Essential Fish Habitat Assessment under the Magnuson-Stevens Act, 16 U.S.C. § § 1851 et seq.
This Act establishes procedures designed to identify, conserve, and enhance essential fish habitat (EFH)
for those species regulated under a federal fisheries management plan. Before a federal action is taken,
consultation with National Oceanic and Atmospheric Administration's National Marine Fisheries
Service (NMFS) must be conducted.
The majority of the impacts to EFH habitat associated with this project will be temporary and reversible.
Ambient monitoring will be required to ensure that Performance Standards are met. Exceedances of
performance standards may trigger reduced dredging rates to ensure the protection of water quality.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 36
-------
For the permanent impacts, the Commonwealth has developed a mitigation package that should offset
the projected loss of winter flounder spawning habitat, salt marsh and intertidal habitat. An expanded
shellfish reseeding effort consistent with that described above will be necessary to offset the losses
associated with that resource. EPA has tentatively determined that impacts to EFH species will be
minimized and mitigated to the greatest extent practicable provided that the Commonwealth fully
implements all of the proposed minimization and mitigation measures described above.
This EFH assessment is the first step in the required consultation process between the federal action
agency (in this case EPA) and NMFS. NMFS will review this document and may issue conservation
recommendations. EPA may or may not adopt those recommendations, but if EPA chooses.not to adopt
any recommendation, EPA must provide a written explanation defending that choice to NMFS. EPA will
complete the consultation process before making a final decision on the project.
For a more detailed discussion, see Appendix H to this Draft Determination.
Fish and Wildlife Coordination Act, ("FWCA") 16 U.S.C. §661-677e
The Act requires consultation with the U.S. Fish and Wildlife Service ("FWS") and the fish and wildlife
agencies of states to be undertaken for the purpose of "preventing loss of and damage to wildlife
resources." This process includes consultation which involves informal and formal participation in all
phases of project planning, construction, operation, and maintenance; reporting of findings and
recommendations, which is the formal culmination of mandated surveys and investigations; and
consideration and implementation, which, technically, are action agency activities but that may be -
significantly influenced by FWS actions and continued participation in the planning and decision making
process.
EPA closely coordinated with FWS regarding both the FWCA and the Endangered Species Act during its
evaluation of the proposed Project. EPA's tentative conclusions regarding potential impacts to fish and
wildlife from the project and potential mitigation measures are discussed on in sections 5, 6 and 7 of
Appendix E. EPA will consider any comments provided by FWS during the public comment period
regarding the Project and EPA's Draft Determination as it formulates its final decision, consistent with
FWCA.
For a more detailed discussion, see Appendix 0 to this Draft Determination.
Endangered Species Act, 16 U.S.C. §1531 etseq.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 37
-------
Section 7 of the Endangered Species Act requires EPA to ensure, in consultation with the U.S. Fish and
Wildlife Service ("FWS") or the National Marine Fisheries Service ("NMFS") that any action authorized by
EPA is not likely to jeopardize the continued existence of any endangered or threatened species or
adversely affect its critical habitat.
After identifying three species under the jurisdiction of FWS that may occur in the proposed Project
area, EPA initiated informal consultation with FWS and provided it with EPA's draft Biological
Assessment. The three species are the roseate tern (endangered), the piping plover and the
northeastern beach tiger beetle (both threatened species). EPA subsequently determined, and FWS has
informally confirmed, that the piping plover and the northeastern beach tiger beetle are not in the
project area. EPA is awaiting final written confirmation from FWS. EPA has completed a final Biological
Assessment of the potential effects of the construction and long-term operation of the proposed Project
on the roseate tern and, for the reasons discussed in the final Biological Assessment, EPA has concluded
that while the proposed Project may affect the roseate tern, the Project is unlikely to adversely affect
the species.
EPA also identified the Atlantic sturgeon, an endangered species under the jurisdiction of NMFS, which
has the potential to occur in the Project area and may be adversely affected by the proposed action.
EPA is currently seeking additional technical assistance from NMFS and is in pre-consultation analysis
with it. In that process, EPA and NMFS are discussing time of year restrictions, project sequencing
options, and mitigative dredging techniques which could greatly lessen or eliminate any potential
adverse effects to the species. In the near future, EPA will enter informal consultation with NMFS which
will include preparation of a Biological Assessment.
For a more detailed discussion, see Appendix I to this Draft Determination.
Toxic Substances Control Act (TSCA), 15 U.S. C §2601 et seq.
40 CFR §761.61 PCB Remediation Waste
TSCA, and its implementing regulations at 40 C.F.R. Part 761, regulate the manufacture, processing,
distribution in commerce, use, cleanup, storage, and disposal of PCBs. In particular, § 761.61(c)
provides cleanup and disposal options for PCB remediation waste, as defined in §761.3, through a self-
implementing procedure, through performance-based disposal, or with a risk-based approval issued by
EPA. A risk-based approval requires a determination by EPA that the proposed method will not pose an
unreasonable risk of injury to health or the environment. The Commonwealth has determined that the
PCB-contaminated soil and sediment to be excavated, dredged and disposed meets the definition of PCB
remediation waste as defined in §761.3 of TSCA. As such, this soil and sediment are regulated for
cleanup pursuant to § 761.61(c).
Based on information provided by the Commonwealth, EPA has made a draft determination that the
proposed method of excavation and disposal of the proposed upland soils and dredging and disposal of
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 38
-------
certain PCB-contaminated sediment, including dredging and disposal activities relating to CAD cell 3, all
of which are included in the proposed South Terminal Project, does not pose an unreasonable risk to
human health or the environment as long as the conditions set out in the TSCA Determination attached
as Appendix J(l) to this Draft Determination are met. The activities covered by, and the conditions
contained within, this TSCA Determination are more fully described within Appendix J(l).
In addition, EPA is proposing to modify an existing TSCA Determination issued on November 12, 2008, as
modified on June 18, 2010, to include dredging and disposal of PCB-contaminated sediment dredged
from within the footprint of CAD cell 3 and from the tidal tributary adjacent to the hurricane barrier into
existing CAD cell 2. Based on the information provided by the Commonwealth, and provided the
conditions in this Second Modification to the November 12, 2008 TSCA §761.61(c) Determination are
met, EPA is determining that disposal of CAD cell 3 sediment and tidal tributary sediment into CAD cell 2
does not pose an unreasonable risk to human health and the environment. The activities covered by,
and the conditions contained within this modified TSCA Determination are more fully described within
Appendix J(2).
EPA is asking for specific public comment on these two proposed TSCA §761.61(c) determinations.
Clean Air Act, 42 U.S.C. §7506(c), 40 CFR Part 93, Subpart B (General Conformity Rule)
42 U.S.C. § 7412, 40 CFR Parts 61 and 63 (NESHAPs)
EPA's General Conformity Rule, 40 CFR Part 93, Subpart B, implements section 176(c) of the Clean Air
Act for non-attainment areas and maintenance areas. It requires that federal actions, unless exempt,
conform with the federally approved implementation plans. EPA has analyzed the impacts on air quality
associated with the construction of the South'Terminal Project for conformity applicability pursuant to
that General Conformity Rule. EPA has determined that such impacts will not exceed de minimis levels
of direct or indirect emissions of a criteria pollutant or its precursors, and are exempted by 40 CFR
93.153.39 Any later indirect emissions are generally not within EPA's continuing program responsibility
and generally cannot be practicably controlled by EPA. For these reasons a conformity determination is
not required for EPA's authorization of this project.
If the project involves any activities that would be covered under 40 CFR Parts 61 or 63 (NESHAPs), then
the proponent will be required to comply with the applicable NESHAP.
See Appendix A to this Draft Determination for minimum air monitoring requirements.
39 '
EPA has determined that the output of NOx and VOCs produced during construction of the CDF are below de minimis levels
based on the type of equipment to be used, the 9 month construction time frame, and the amount of hours each piece will run
per day. The calculated NOx output is approximately 27.70 tons (per calendar year) and approximately 1.3 tons per calendar
years of VOCs.
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 39
-------
Executive Orders and Policies
Pursuant to EPA guidance, "In additional to legally binding laws and regulations, many Federal and state
environmental and public health agenciesL.develop criteria, advisories, guidance, and proposed
standards that are not legally binding, but that may provide useful information or recommended
procedures.40 These "to-be-considered" (TBCs) materials are meant to complement the use of ARARs,
not to compete with or replace them. TBCs are not legally enforceable and therefore are not ARARs.
Their identification and use are not mandatory.41 fBCs can also include Executive Orders. Executive
Orders differ, however, from other TBCs in that they are orders of the President to all Executive Branch
employees, so that even though they are not ARAR under CERCLA they should be complied with.42
Following is a list of significant federal Executive Orders that have been identified as TBCs for the
proposed Project.
Floodplain Management Executive Order, Executive Order 11988
EPA is asking for specific public comment on the following proposed determination.
Executive Order 11988 setting out requirements for federal agencies in the management of floodplain
issues was issued on May 24, 1977 in furtherance of the National Environmental Policy Act of 1969,
among other federal statutes, "in order to avoid to the extent possible the long and short term adverse
impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect
support of floodplain development whenever there is a practicable alternative." Each agency has a
responsibility to evaluate the potential effects of any actions it may take in a floodplain;... reflect
consideration of flood hazards and floodplain management; and to prescribe procedures to implement
the policies and requirements of this Order. EPA's issuance of this Draft Determination may be
considered a federal action. Before taking action, each agency shall determine (1) whether the
proposed action will occur in a floodplain; (2) if so, consider practicable alternatives to avoid adverse
effects and incompatible development in the floodplain; (3) prior to taking action, design or modify its
action in order to minimize potential harm to or within the floodplain and act to restore and preserve
the natural and beneficial values of the floodplain; and (4) provide opportunity for public comment.
The South Terminal Project includes activities that affect or result in the occupancy and modification of
the floodplain. The Commonwealth calculates that construction of the South Terminal Project will result
in the loss of 27.33 acre-feet of flood storage due to filling within the footprint of the CDF. This
represents a rise of approximately 0.156 inches in water levels during a flood event. As a result, Execu-
tive Order 11988 (Floodplain Management) requires EPA to make a determination that there is no
practicable alternative to locating the CDF in floodplains. After reviewing other alternative locations,
40 See "CERCLA Compliance with Other Laws Manual: Interim Final", EPA/540/G-89/006 (August 1988), p. 1-76.
41 See "Considering Wetlands at CERCLA Sites", EPA A540/R-94/019 (May 1994), p. 11.
42 Id. at p. 12.
EPA Draft Determination for the Proposed South Terminal Project Page 40
New Bedford Harbor State Enhanced Remedy
-------
EPA has determined that, given the use of the CDF as a marine terminal to support the offshore wind
industry and the required criteria to support that use, there is no practicable alternative to occupancy
and modification of the floodplain inside the hurricane barrier in the south terminal area. While the
Commonwealth does not believe this impact to be significant43, it has identified the planned Marsh
Island restoration project as providing mitigation for this loss of flood storage capacity.44 The planned
work at Marsh Island will result in an increase in flood storage capacity of 39.67 acre-feet, which is more
than enough to compensate for the anticipated 27.33 acre-feet loss from construction of the South
Terminal project. The beneficial floodplain values identified for the area affected by this project are
flood prevention. As a result, the Commonwealth's promised mitigation project, that primary beneficial
value will be restored.
For a detailed discussion, see Appendix L to this Draft Determination.
Executive Order 12898 - Federal Actions to Address Environmental Justice in Minority Populations
and Low-Income Populations, 59 Fed. Reg. 7,629 (Feb. 16,1994)
This federal Executive Order requires, to the greatest extent practicable, that each Federal agency
identify and address, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority populations and low-income
populations in the United States.
The Commonwealth has identified certain areas located within or along the truck access route (Route
18) as environmental justice areas. EPA agrees with this assessment. MassDEP then considered the
existing and potential traffic, noise, and air impacts to these areas and determined the proposed
Project's additional traffic, noise and air impacts are expected to be minimal, and therefore, are not
expected to have disproportionately high and adverse human health or environmental effects on
minority or low-income populations. EPA feels that MassDEP appropriately evaluates the impacts to
environmental justice populations. A Construction Management Plan (CMP), including air and sound
monitoring will be required in order to minimize construction-related impacts.
For a detailed discussion, see Potential Community Impacts on page 8 and Appendix M to this Draft
Determination.
43 EPA, through its own discretion, consulted with FEMA about these impact of flood storage loss to New Bedford
Harbor. FEMA did not believe the loss was significant.
44 The Marsh Island restoration project is outside the scope of this proposed South Terminal Project. EPA has not
received any information from the Commonwealth to indicate that the flood storage created by the Marsh Island
restoration project has been identified as a floodplain mitigation measure for any other activity in New Bedford
Harbor. Attachment B to the Commonwealth's June 26, 2012 submittal contains plans for the Marsh Island
restoration project.
EPA Draft Determination for the Proposed South Terminal Project Page 41
New Bedford Harbor State Enhanced Remedy
-------
Executive Order 13112 Invasive Species
This Executive Order directs federal agencies to' review their actions to enhance the control and
management and prevent the spread of invasive species. To the extent that EPA's issuance of this Draft
Determination is considered a Federal undertaking, EPA has conducted a review of the proposed Project
to determine its impact on controlling and prevent the spread of invasive species.
EPA recommends a post-construction bulkhead monitoring plan to detect the presence of new invasive
species that may colonize the Harbor waters. An invasive species management plan to protect against
invasive species in the swale mitigation measures has been developed by the Commonwealth and is
included in Attachment P to its June 18, 2012 submittal. EPA has recommended changes in that plan.
See Appendix N and Section 7.3 of Appendix E for further discussion.
END
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 42
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 1
Map of Proposed Work Components
(Second map attached to show existing upland asphalt cap
in white striped area)
-------
• h^hmh n '
Riverside'
Cttp f C"'
CAD CELL#3
DREDGE AND
DISPOSAL AREA
Driven
Theatif
CAD CELL#1
CAPPING AREA
UH| n Ligni
CAD CELL#!
DISPOSAL AREA
~ BORROW PIT
^— CAD CELL \
9 *' CAPPING AREA ,
Radio tow«f \ v_
(WBSMW it '>
Crow
Inland
NEW BEDFORD
FEDERAL MANEUVERING
AREA DREDGE AREA
tt &b FVKD
NEW BEDFORD
MARINE COMMERCE
TERMINAL CHANNEL
DREDGE AREA
Harbor VTt
BVZi
NORTH MOORING
MITIGATION AREA
3HM, Hi H—W—-
NEW BEDFORD MARINE
COMMERCE TERMINAL
'alm«i_ SOUTH MOORING ~
[•tafi MITIGATION AREA hj
M V
rrrMOtNIl BfcACfi
STATE RESERVATION
; IJOTH';
! ANCILLARY t
J PROPERTIES
\ i.LLtET '
& GIFFORO STREET
CHANNEL DREDGE
AREA
J —v*.
OU#3 MITIGATION SITE
FORMER DARTMOUTH '¦
MILLS FINISHING SITE *
se*££-
DRAINAGE SWALE
MITIGATION AREA
WINTER FLOUNDER
MITIGATION SITE
Butler Flats
Lighthouse
NEW BEDFORD
MARINE COMMERCE
TERMINAL
MASSACHUSETTS CLEAN ENERGY CENTER
55 SUMMER STREET, 9TH FLOOR
BOSTON. MASSACHUSETTS
-------
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 2
Map of Geographic Areas of
the New Bedford Harbor Superfund Site
-------
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 3
Map of New Bedford - Fairhaven Designated Port Area
-------
DRAFT DRAFT DRAFT
For piamng purposes only in the evert of contici between this mop
aid ihe acccampanyng written descnption trt vsftcti rtttrer thetertnor
Ihe mnpisdrdominflttve.CZM shdl issue awitten dan* cation pssuarl
to the Pea grated Port Area CDPA) reputations al 30! CkR 25 OP
New Bedford - Fairhaven
Designated Port Area (DPA)
Point of Beginning Town Boundaries
# PobH of Ending Chapter 91 - High Water
~V Designated Port Area Boundary I—' Assessor's Parcels
'.1 25
Base mop; MassGtS Di gU Ortho Photos, 2CD1.
ProjecSat North Aimnn Datum 1383;
Massactuefs State Pfane Coord rale System,
N Martand Zone (flPS one 2001), meters September 1,2009
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 4(a)
Map of Proposed Configuration A for Ancillary Property
i
-------
Htfj f*DVItr
Con 3/3»/lQ
184 HUSH STREIT
SUifE 50Z
eOSTOH MA 02110
(617) 728-GOTO
commonwealth
OF
MASSACHUSETTS
NEW BEDFORD MARINE
COMMERCE TERMINAL
PROPOSED
CONFIGURATION A
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 4(b)
Map of Proposed Configuration B for Ancillary Property
-------
MAP 31 PORTION OF
PARCEL 234 N B-
RADlO INC
MAIN FACILITY
ASSESSORS WAP 31
PORTION Of
PARCfi 288 &
PORTION OF
PARCEL 263
MAP 25A PARCELS
49, 53. & PORTION
Of PARCEL 48
EASEMENTS
FROM MAP
25A
parcels
*6.45 ic 5
MAP 25A
PARCEL '0
SOUTH
COAST
MILLS U.C
MAP 25A
PARCEL ?
south
COAST
MILLS LLC
I MAP 21 "j
PARCEL
45 C5TY
OF NFW
BEDFORD.
AND
EASEMENT
PARCEL
Pol* 3/2*7*0"
jofe No. g»ta
Ln*» Hr* ?/?/'»Q
184 HKH siwrr
SUIft MJ
BOSTON MA 0211Q
(«17) 728-0070
CftAVWNCt«tU
NEW BEDFORD MARINE
COMMERCE TERMINAL
PROPOSED
CONFIGURATION B
COMMON WEALTH
OF
MASSACHUSETTS
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 5
Maps of Resource Areas
(including Paloesol and Shipwreck)
-------
-------
N
A
Aerial Map
FIGURE 2
r\
Wetland Report
0
200
400
800 Feet
Land North of Gifford Street
UUCAS ENV2K0JUMEMTAL, LLC
1
i «
"
I
New Bedford, MA
LAtmTJwajOFHarfbmtMTrmiij
-------
Figure JO, Map of South Terminal Marine Infrastructure Park Project Areas.
Depicting Vibracore and Geoiechnical Boring Locations, and the
Subtidal Area Identified as Exhibiting Moderate Archeoiogical
Potential.
-------
Phase II Investigation of Target M4/S5
Proposed South Terminal Marine Infrastructure Park
New Bedford, Massachusetts
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Figure 6
Map of Potential Federal Channel Dredging
-------
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 1
Volume of Material to be Dredged
-------
Destination of
Dredged
Material
Material to be Dredged
Totals
Mooring Northern
Mitjgation
Mooring Southern
Mitigation
Gifford Street
Channel
Relocation
Stormwater
Drainage Swale
Mitigation Area
Top of Dredge
Intermediate
Dredge
Bottom of Dredge
Top of CAD #3
Bottom of CAD #3
Stormwater
Drainage Swale
Mitigation Area:
3,500
3,500
OU-3 Hot-Spot
Capping Mitigation
Area:
95,500
95,500
Disposal Offshore at
CCDS/RISDS:
199,500
199,500
Winter Flounder
¦ Mitigation Area:
12,000
17,500
123,500
153,000
New Bedford
Marine Commerce
Terminal:
142,000
142,000
Former Dartmouth
Finishing Site:
41,000
41,000
Capping of CAD Cell
#1:
27,500
27,500
Disposal at CAD Cell
#2:
2,500
35,000
37,500
Disposal at CAD Cell
#3:
8,600
10,500
2,000
188,500
209,600
Capping of Borrow
Pit CAD Cell:
25,500
25,500
Totals:
8,600
10,500
2,000
2,500
188,500
65,000
299,500
35,000
323,000
934,600
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
Federal Requirement1
. ¦ Status ;¦
/'•" Synopsis - "'-i-W-""rV
• - . Action to be I aken . \
Clean Water Act, Sec. 404 (33
U.S.C §1344), 40 C.F.R. Part
230, Section 404(b)(1)
Guidelines for Specification of
Disposal Sites for Dredged or
Fill Material (40 C.F.R. Part
230, 231 and 33 C.F.R. Parts
320-323)
Applicable
Prohibits discharges of dredge
or fill material into waters of the
U.S. except in compliance with
the requirements of the §
404(b)(1) guidelines.
After careful review of the
Commonwealth's submittals and
based on the information provided
in those submittals, EPA has
tentatively determined that
404(b)(1) guidelines will be met.
Rivers and Harbors Act of
1899, (33 U.S.C. §403 etseq.;
33 C.F.R. Parts 320-323)
Section 10
Applicable
Prohibits the obstruction or
alternation of any navigable
water of the U.S. except as
authorized after a finding that
the activity is not contrary to the
public interest.
After careful review of the
Commonwealth's submittals and
based on the information provided
in those submittals, EPA has
tentatively determined that the
Project meets these requirements
Clean Water Act, Section 401
Water Quality Certification
Applicable
Requires a state Section 401
water quality certification to
ensure the project will comply
with state water quality
standards for any activity that
may result in a discharge to
navigable waters of the U.S.
Certification/conditions provided by
the State and will be followed
during project implementation.
Section 402 of the Clean Water
Applicable
Section 301 of the Clean Water
The Commonwealth will implement
1 This Table includes all major federal substantive requirements (ARARs/TBCs) related to this Draft Determination. Additional federal requirements have also
been identified and are included in the Administrative Record for this Project. State substantive requirements are referenced separately in the Administrative
Record and can also be found in Appendix D to the Draft Determination. Finally, some federal requirements are implemented by the State. These are
referenced in the Administrative Record.
1
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
Act, 33U.S.C§1342
(Stormwater)
Act, 33 U.S.C. § 1311, generally
prohibits the discharge of
pollutants into waters of the
U.S. except in compliance with
various sections of the Act,
including Sections 402 and 404,
33 U.S.C. §§ 1342 and 1344.
a Storm Water Pollution Prevention
Plan (SWPPP) which documents the
operation of the site and compliance
with the substantive requirements of
a Construction General permit.
Toxic Substances Control Act
(TSCA), 15 U.S.C §2601 et
seq.
PCB Remediation Waste (40
C.F.R. §761.61(c))
Applicable
This section of TSCA provides
risk-based cleanup and disposal
options for PCB remediation
waste based on the risks posed
by the concentrations at which
the PCBs are found.
EPA has tentatively determined that
disposal of material unsuitable for
ocean disposal generated from
navigational dredging and
mitigation measures into CAD cells
2 and 3 will not pose an
unreasonable risk to human health
or the environment as long as
certain conditions are followed. A
draft TSCA determination is
included in EPA's Draft
Determination for CAD cell 3; EPA
proposes to modify the existing
TSCA determination for CAD cell 2
and has included a draft in its Draft
Determination. (Although the
upland remediation will be
performed independently under the
state cleanup program, EPA has
included a draft TSCA
determination for upland disposal of
PCB remediation waste within the
upland portion of the terminal and
2
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
the CDF.)
TSCA Decontamination
Standards, 40 C.F.R. 761.79
Applicable
Sets decontamination standards
for removal of PCBs from non-
porous surfaces and non-porous
surfaces covered with porous
material. Allows for alternative
methods of decontamination.
Equipment and personal protective
gear will be decontaminated in
accordance with these substantive
requirements.
TSCA Storage for Disposal, 40
C.F.R. 761.65
Applicable
Regulates storage for disposal of
PCBs at concentrations of 50
ppm or greater and PCB Items
with PCB concentrations of 50
ppm or greater.
Excavated PCB-contaminated soil
and sediments stored (including
stockpiled) for disposal will be
managed in accordance with these
substantive requirements.
Clean Air Act, 42 U.S.C.
§7506(c), 40 CFR Part 93,
Subpart B (General Conformity
Rule)
Applicable
Regulates air emissions in
nonattainment and maintenance
areas. Federal actions, unless
exempt, must conform with
federally approved
implementations plans.
The proposed Project is in an 8
hour ozone nonattainment area.
A conformity determination is not
required because impacts associated
with construction of the proposed
Project will not exceed de minimis
levels of direct or indirect emissions
of a criteria pollutant or its
precursors and is exempted by 40
CFR Part 93.153.
Clean Air Act, 42 U.S.C. §
7412, 40 CFR Parts 61 and 63
National Emissions Standards
for Hazardous Air Pollutants
Potentially
Applicable/Potentially
Relevant and Appropriate
NESHAPS are a set of air
emission standards for specific
air pollutants.
If the project involves any activities
that are covered under 40 CFR parts
61 or 63 (NESHAPs), then the
appropriate requirements will be
followed.
Navigation and Navigable
Waters, 33 USC 408
Applicable
Unlawful for any person to
impair the usefulness of any sea
wall, bulkhead, jetty, dike,
Determination currently under
review.
3
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
levee, wharf, pier, or other work
built by the United States, unless
permission is granted based
upon a determination that such
occupation or use will not be
injurious to the public interest.
Coastal Zone Management Act,
16 USG 1451 et seq.
Applicable
Federal agencies conducting
activities that directly affect
coastal zone must do so in a
manner consistent with
approved State coastal zone
management program.
Activities subject to these
requirements will be conducted
consistent with approved State
coastal zone management program.
Endangered Species Act
16 U.S.C. 1531 et seq.
Applicable
Species currently listed on the
Endangered Species list could
potentially be affected by the
Project.
EPA has concluded, for the reasons
discussed in its final Biological
Assessment that while the Project
may affect the roseate tern, it is
unlikely to adversely affect the
species. The potential for impacts
to the Atlantic sturgeon is under
review.
Essential Fish Habitat •
Assessment under the
Magnuson-Stevens Act, 16
U.S.C. §§ 1851 et seq.
Applicable
This Act establishes procedures
designed to identify, conserve,
and enhance essential fish
habitat for those species
regulated under a federal
fisheries management plan.
Consultation with National
Marine Fisheries Service must
be conducted.
EPA has tentatively determined that
impacts to EFH species will be
minimized and mitigated to the
greatest extent practicable provided
that the Commonwealth fully
implements all of the proposed
minimization and mitigation
measures.
NMFS will review this Draft
Determination and may issue
4
-------
EPA Draft Determination For South Terminal Project Table 2
New Bedford Harbor State Enhanced Remedy
Major Federal Substantive Requirements
conservation recommendations
which EPA may or may not adopt.
EPA will complete the consultation
process before making a final
decision on the project.
Fish and Wildlife Coordination
Act, 16U.s!c. §661-677e
Applicable
The Act requires consultation
with the U.S. Fish and Wildlife
Service (FWS) and the fish and
wildlife service of the state to be
undertaken for the purpose of
preventing loss of and damage
to wildlife resources.
EPA closely coordinated with FWS
regarding both this Act and the ESA
during its evaluation of the proposed
Project. EPA tentatively concludes
there are potential impacts to fish
and wildlife and has reviewed
potential mitigation measures. See
Appendix E to this Draft
Determination. EPA will consider
any comments provided by FWS
during the public comment process.
National Historic Preservation
Act, 16 U.S.C. §470;
36 CFR Part 800
Applicable
Section 106 of the Act requires
that Federal agencies consider,
in consultation with other
interested parties, the effects of
their undertakings on historic
properties prior to
implementation and to
determine whether or not the
undertaking adversely affects
these resources. The following
cultural resources were
identified: two paleosols and a
shipwreck.
After initiating consultation, it is
EPA's intent to propose a finding of
no adverse affect for the subtidal
and intertidal areas as long as the
Commonwealth agrees to abide by
the conditions imposed by the
Tribes. EPA cannot conclude the
Section 106 consultation process in
connection with the upland area
until a final assessment of the entire
area is completed, and consulting
parties are appropriately engaged.
5
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
Preservation of Historical and
Archeological Data, 16 USC
469
Potentially Applicable
Provides for the preservation of
historical and archeological data
(including relics and specimens)
which might otherwise be
irreparably lost or destroyed as
the result of alteration of the
terrain
If historical and archeological
materials are encountered that are
subject to this Act (including relics
and specimens), historical and
archeological data will be preserved
in accordance with these
requirements. .
Executive Order 12898 —
Federal Actions to Address
Environmental Justice in
Minority Populations and Low-
Income Populations, 59 Fed.
Reg. 7,629 (Feb. 16, 1994)
To Be Considered
The Executive Order, among
other things, requires, to the
greatest extent practicable, each
Federal agency to identify and
address, as appropriate,
disproportionately high and
adverse human health or
environmental effects of its
programs, policies, and
activities on minority
populations and low-income
populations and to ensure such
programs, policies and activities
are conducted in a manner that
ensures that such programs,
policies, and activities do not
have the effect of subjecting
persons (including populations)
to discrimination because of
their race, color, or national
origin.
Certain areas located within or
along the truck access route (Route
18) have been identified as
environmental justice areas. Traffic,
noise and air impacts are expected
to be minimal; however, a
Construction Management Plan
(CMP) will be required in order to
minimize construction-related
impacts.
6
-------
EPA Draft Determination For South Terminal Project Table 2
New Bedford Harbor State Enhanced Remedy
Major Federal Substantive Requirements
Wetlands Protection Executive
Order 11990
To Be Considered
Requires federal agencies to
avoid undertaking or providing
assistance for new construction
located in wetlands unless the
head of the agency finds (1) that
there is no practicable
alternative to such construction,
and (2) that the proposed action
includes all practicable
measures to minimize harm to
wetlands which may result from
such use.
EPA has made a tentative
determination that there is no
practicable alternative to activities
that will impact wetlands. The
proposed action includes all
practicable measures to minimize
harm to wetlands which may result.
Floodplain Management 11988
To Be Considered
Federal agencies are required to
avoid impacts associated with
the occupancy and modification
of a floodplain and avoid
support of floodplain
development wherever there is a
practicable alternative.
EPA has tentatively determined that
there is no practicable alternative to
development in the floodplain.
Actions will be taken to minimize
impacts.
Executive Order 13112
Invasive Species
To Be Considered
Directs federal agencies to
review their actions to enhance
the control and management and
prevent the spread of invasive
species.
Native species will be used for
restoration/creation of the drainage
swale. Reseeding activities will use
native shellfish. A post-
construction bulkhead monitoring
7
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
plan is recommended for the
presence of invasive species that ,
may be present in the Harbor
waters.
Contaminated Sediment
Remediation Guidance for
Hazardous Waste Sites (EPA-
540-R-05-012 OSWER 9355.0-
85, December 2005)
To Be Considered
Guidance for making remedy
decisions for contaminated
sediment sites.
This guidance will be considered in .
addressing contaminated sediments.
Coast Guard Anchorage
Ground and Regulated
Navigation Area Rules (33
C.F.R. Part 110; 165)
To Be Considered (will
be Applicable if a Rule is
promulgated for CADs)
The Coast Guard may
promulgate site-specific rules to
establish federal anchorage
areas and regulated navigation
areas (RNAs). Once
promulgated, such a rule is.also
the basis for the National
Oceanic and Atmospheric
Administration (NOAA) to
revise navigation charts to show
the restricted area.
Coordination will occur with the
Coast Guard and harbor
stakeholders in the promulgation of
a rule to establish a RNA for the
area of the CADs.
[Add RCRA guidance attached to^
DEP response to.Kim's questions
'dated 6/23/12;
-
[Air retrofit guidance!
EPA PolicV on Floodplains and
iWetland Assessments for CERCLA!
(Actions. OSWER Directive 9280.d
8
-------
EPA Draft Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
if August 6. 1985)'
IConsiderihg Wetlands at CERCLA1
Sites. EPA A540/R-94/019 (May!
11994)'
1
9
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix A
Minimum Air Monitoring Standards and Requirements
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix A
New Bedford Harbor State Enhanced Remedy
i
Minimum Air Monitoring Standards and Requirements
1. The Air Quality Management and Monitoring Plan ("the Plan") shall include:
. a. The means and methods used to perform the proposed Project upland
work. The means and methods shall be designed and implemented in a
manner that minimizes airborne PCBs and particulates (and asbestos) to
the maximum degree practicable. The Plan will detail the means and
methods.to be used to maintain airborne PCB levels at the performances
standards specified in Item 3, below. The Plan will be in effect
continuously until completion of the work.
b. A description of how the proponent will:
¦ Establish a minimum of 4 perimeter air monitoring locations;
¦ Define air monitoring procedures, parameters and detection limits and
the process for modification to these with EPA approval. Air
monitoring parameters shall include particulates (PMio), PCBs,
asbestos, and lead.
¦ Define air monitoring frequency based on site activity and the process
for modifying frequency with EPA approval;
¦ Establish background levels; and,
¦ Calculate a running average of airborne PCB levels monitored at each
air monitoring location during performance of the work. This station-
specific average shall be submitted to EPA within three days of receipt
of the laboratory data.
2. Aroclor versus PCB Homolog Analysis: To be consistent with previous airborne
PCB sampling from other site remediation activities in and around the Harbor,
EPA recommends at a minimum, that the total homolog approach be used to
determine the concentration of total PCBs in air. However, if the proponent can
demonstrate, through the performance of a comparative analysis study showing
the results of paired homolog versus Aroclor data, that airborne Aroclor data are
equivalent to total homolog data at the South Terminal upland work area, EPA
will consider use of the Aroclor approach as an alternative. Proponent must first
propose and EPA approve, the method for the comparative analysis prior to its
implementation.
3. Proponent shall use best management practices to comply at all times during
performance of the work with air quality performance standards. On the upland
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix A
area, the point of compliance for air quality performance standards shall be the
property boundary. At a minimum, a fence shall be constructed along the
property boundaries during remedial activities. At no time during the
performance of the remedial work shall levels exceed the following standards:
' "2
¦ Airborne particulates (PMio): not to exceed 100 ug/m (10 hour TWA).
•>
¦ Airborne PCBs: not to exceed background or 0.10 ug/m , whichever is
. higher.
¦ Airborne asbestos: not to exceed 0.1 fiber/cc.
¦ Lead: not to exceed 50 ug/m3.
4. Proponent may propose an alternate PCB standard (Not To Exceed 0.260 |ag/m )
for properties along the fence line where no residential property exists within 200
feet of said fence line.
5. In the event of an exceedance, the Commonwealth shall immediately cease work
and submit a proposed corrective action plan. Work shall resume only with
EPA's approval and upon implementation of the corrective action plan.
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix B
EPA Guidelines for Fish Consumption in New Bedford Harbor
-------
m
UPDATE ON FISH/SHELLFISH TESTING
New Bedford Harbor New Bedford, MA
U.S. EPA | HAZARDOUS WASTE PROGRAM AT EPA NEW ENGLANO
THE SUPERFUNO PROGRAM protects human hea/t/i
and the environment by investigating and cleaning up often-abandoned
hazardous waste sites and engaging communities throughout the process.
Many of these sites are complex and need long-term cleanup actions.
Those responsible for contamination are held liable for cleanup costs.
EPA strives to return previously contaminated land and groundwater
to productive use.
SITE DESCRIPTION:
pOlf'
196
.'>* ' ¦ V CMCK.IC
liment irid tilt
pp
ed ^ dr.
WW
sd i
with dr*dgtn; typically occurring in th» sunw«V In 20
Koeiv an fund* to hete «*«j up the cuirwfW,,^
PARTNERING
As part of the NBH site monitoring, the Massachusetts
Department of Environmental Protection has conducted
annual fish and shellfish sampling to determine whether
PCB concentrations in NBH fish and shellfish are declining
as a result of cleanup activities. In general, PCB concentra-
tions have indeed decreased from the 1980s to the pres-
ent in most species, although concerns remain as discussed
herein, fish and shellfish sampling will continue throughout
the cleanup efforts, and updates to this fact sheet will be
issued as appropriate.
ASSESSMENT
The Massachusetts Department of Public Health (MDPH)
has also had extensive involvement with NBH in order
to address a variety of health concerns. In 1979, MDPH
promulgated state regulations prohibiting the consump-
tion of any fish/she I (fish in Area 1 of NBH; of bottom
feeding fish (eel. scup, flounder, and tautog) or lobster in
Area 2: and lobster in Area 3 (see attached map). These
early efforts were followed by human epidemiological
studies of PCB exposure via fish consumption by MDPH
and others. MDPH has additional advice for sensitive
populations (pregnant women, nursing mothers, children
under age 12, women who may become pregnant) that
can be found at www.mass.gov/dph/fishadvisories. EPA
supports this additional advice, and notes that its updat-
ed risk assessment (discussed below) recommends that
sensitive populations avoid fish, shellfish and lobster from
the three closure areas in NBH (see map on reverse)
except that shellfish from Area 3 and Clark's cove may
safely be consumed by these sensitive populations if lim-
ited to one meal per month.
RECOMMENDATIONS
As part of the Superfund process, EPA is required to con-
duct risk assessments that will result in cleanup levels that
the selected remedy for a given site must meet These
risk assessments use conservative (health-protective) as-
sumptions to ensure that even sensitive populations will
not have health concerns following completion of reme-
diation activities, In the case of NBH and the risk assess-
ment conducted on fish/shellfish in the closed areas of
the harbor. EPA's updated evaluation indicates that some
species not currently covered by the 1979 state regula-
tions may present health concerns for recreational fisher-
men and shell fishermen (and/or their families/friends
who consume their take) if these species are consumed
in larger quantities than current epidemiological data
continued on next page >
KEY CONTACTS:
BILL LOVELY
U.S. EPA
Project Manager
(617) 918-1240
lovely, william@epa.gov
K KLSI Y O NEIL
U.S. EPA Community
Involvement Coordinator
(617) 918-1799
oneil.kelsey@epa.gov
JOSEPH COYNE
MassDEP
(617) 348-4066
joseph.coyne@state.ma.us
GENERAL INFO:
EPA NEW ENGLANO
5 Post Office Sq.,
Suite 100
Boston, MA 02109-3912
TOLL-FREE
CUSTOMER SERVICE
1-888 EPA-7341
learn more at>
www.epa.gov/ne/nbh
A United States
Environmental Protection
ImI Agency
© printed on 100% recycled pcpei with a minimum of 50% posKonsumar waste, using vegelob5e-based inks
September 2011
-------
Mattapoiseit
hurricane
i humcr
Area 3
'Smith
Kock
Original Fishing Ban (in effect 1979-present)
per Massachusetts Department of PLiblic Health
~7
\ ^ Palrhaven " 1
^A\ea I
Dartmouth
Updated 2010 U.S. EPA Recommendations per
Superfund Risk Assessment with additional species highlighted
New Bedford J^Acushnet^'
"foggcsiull siwa
^^FaiVhaven
Dartmouth
[ Black Sea Bass
I meal per month |
I Shellfish:
Ka 1 meal per month |
I (Clark's Cove
,1 meal per week) i
Black Sea Bass:
I meal per month
Scup:
Do not eat
Do NOT eat shellfish
No coma mariscos
Nao coma mariscos
Do NOT eat fish
No coma pescado
NSo coma peixe
Do NOT eat lobster
No coma langosta
Nao coma lagosta
continued from front» suggest, EPA believes it is important that recreational fishermen and shell-fishermen be aware that the risk assessment suggests
that: consumption of black sea bass be limited to one meal per month if they are obtained in Areas 2 and 3: that scup not be consumed from Areas 2 or
3; and that general guidelines for shellfish include limiting consumption to one meal a month in Area 2 and one meal a week in Area 3. See map above for
a summary of EPA's recommendations,
It is important to recognize the substantial benefits of fish consumption for everyone. Fish is one of the best sources of fatty acids which are helpful in
reducing the risk of heart disease, In order to avoid exposure to a harmful level of contaminants, people should choose a variety of fish and shellfish from
a variety of sources.
Do NOT eat bottom feeding fish:
No coma pescado de fondo:
N§o coma peixe de fundo:
• flounder
• lenguado
• solha
•scup
•sargo
•sargo
•tautog
•tautoga
• bodiao da ostra
•eel
•angulta
•anguila
&EPA
September 2011
-------
Original Fishing Ban (in effect 1070-presenr)
per Massachusetts Department of Public Health
m
Do NOT eat shellfish
No coma mariscos
Nao coma mariscos
Do NOT eat fish
No coma pescado
Nao coma peixe
Updated 2010 EM Recommendarkms tor Recreational Fi:hermen/Shellfishermen
per Snpertiind Risk Assessment with additional species highlighted"
' ^
Mattapoisett
New Bedford )> Acnshnvt, -
* l.W
ISA
ven
Dartmouth
^EtvS'^Kr*
met
Area 1
Bbck Sea Bau
lineal per mor.tfc
Shell&ih
I
v
luteal pet mrctb
(CLaxlc't Cove
luteal pet week)
r -J.
Bbck Sea Bus.
Imeal pet month
Area 3
Do NOT eat lobster Do NOT eat bottom feeding fish:
No coma langosta UNgn fvjo coma pescado de fondo
Nao coma lagosta ' j^ao coma peiXe oe fundo:
• flOvjnder •tautoq
•ienguaao •tautoqa
• solha •bodiao oa ostra
•scup »eel
• sa'go •ar>gutla
• sa^go »angu4a
-------
The tables on this page show Massachusetts regulations and U.S. EPA recommendations for eating fish, shellfish and
lobster caught in three fish closure areas around New Bedford Harbor. In two of the three closure areas, we have
different advice for sensitive populations — pregnant women, nursing mothers, children under age 12,
and women who may become pregnant — than for the general population. This special advice is noted at the
bottom of the tables for Areas 2 and 3. Safe seafood is an important part of a healthy diet. People should choose a
variety of fish and shellfish from a variety of sources.
Closure Area 1
Inner Harbor:
North of the hurricane barrier and Ft. Phoenix Beach State
Reservation
— Includes Palmer Island —
Map of the upper and lower harbors (PDF) (l pg, 3.3MB, about PDF)
Map of the three fish closure areas in the NBH area
If you catch...
then...
Any shellfish, lobster, or fish,
Do not eat it
including bottom feeders
Closure Area I
-------
Closure Area 2
Outer Harbor:
South of the hurricane barrier to Ricketsons Point and tip of
Sconticut Neck (Wilbur Point)
— Includes Clarks Cove —
Map of the upper and lower harbors (PDF) {1 pg. 2.2MB. iboit
PDF)
Map of the three fish closure areas in the NBH area
If you catch...
then...
Fish:
Black sea bass
Eat no more than one meal per
month
All bottom-feeding fish including:
Gel
-S3
Do not eat it
Flounder
<9*
Do not eat it
Scup
Do not eat it
T autog
Do not eat it
All other fish
U.S. EPA has no data yet so we
cannot make a recommendation
Lobster
Do not eat it
Shellfish (clams, quahogs, mussels
etc.)
Eat no more than one meal per
month.
Exception -- Shellfish caught in
Clarks Cove: eat no more than one
meal per week
NOTE: Pregnant women, nursing mothers, children under age
1 2, and women who may become pregnant should not eat fish,
shellfish or lobster caught in Closure Area 2, except they can safely eat
one, and only one, meal per month of shellfish caught in Clarks Cove.
Closure Area 2
-------
Closure Area 3
Buzzards Bay:
South of Ricketsons Point and the tip of Sconticut Neck (Wilbur
Point)
To Mishaum Point in Dartmouth and West island South Point in
Fairhaven
— Includes area south of the West Island Causeway —
Map of the three fish closure areas in the NBH area
If you catch...
then.
Fish:
Black sea bass
Eat no more than one meal per
month
Bottom-feeding fish:
Eel
There ar restrictions
Flounder
There are no
restrictions
Scup
Do not eat it
T autog
There are no eating restrictions
All other fish, including
all other bottom-feeders
U.S. EPA has no data yet so we
cannot make a recommendation
Lobster
Do not eat it
Shellfish (dams, quahogs, mussels
etc.)
There are no eating restrictions
NOTE: Pregnant women, nursing mothers, children under age 12,
and women who may become pregnant should not eat fish or lobster
caught in Closure Area 3. They can safely eat one, and only one, meal per
mnnth nf chpltfich raiinht in Arpa 3
-------
Partnering with Mass Dept. of Environmental Protection
As part of the NBH site monitoring, the Massachusetts Department of ironmentai Protection has conducted annual
fish arid shellfish sampling to determine whether PCB concentrations in NBH fish and shellfish are declining as % result
of cleanup activities. In general, PCB concentrations have indeed decreased from the 1980s to the present in most
species, although concerns remain as discussed herein. Fish and shellfish sampling will continue throughout the
cleanup efforts, and updates to this fact sheet will be issued as appropriate,
* Top of ftgf
Assessment with Mass Dept. of Public Health
The Massachusetts Department of Public Health (MDPH) has also had extensive involvement with N8H in order to
address a variety of health concerns. In 1979, MDPH promulgated state regulations prohibiting the consumption of
any fish/shellfish in Arm 1 of NBH; of bottom feeding fish feel scup, flounder, and tautog) or lobster in Area 2, and
lobster in Area 3 (see attached map). These early efforts were followed by human epidemiological studies of PCB
exposure via fish consumption by MDPH and others. XWDPH has additional advice for sensitive populations (pregnant
women., nursing mothers, children under age 1 2, women who may become pregnant) that can be found at
www.mwss.a&w/dph/fishBid-j isonts. EPA supports this additional advice, *nd notes that its updated risk assessment
(discussed below) recommends that sensitive populations avoid fish, shellfish and lobster from the three closure areas
in NBH (see map on reverse) except that shellfish from Area 3 and Clark's cove may safely be consumed by these
sensitive populations if limited to one meal per month.
i Top of Agv
Recommendations
As part of the Superfund process, EPA is required to con-duct risk assessments that will result in cleanup levels that
the selected remedy for a given site must meet. These risk assessments use conservative health-protective)
assumptions to ensure that even sensitive populations will not have health concerns following completion of reme-
diation activities. In the case of NBH and the risk assessment conducted on fish/shellfish in the closed areas of the
harbor, EPA's updated evaluation indicates that some species not currently covered by the 1979 state regulations may
present health concerns for recreational fishermen and shell fishermen (and/or their families/friends who consume
their take) if these species are consumed in larger quantities than current epidemiological data suggest. EPA believes
it is important that recreational fishermen and shell-fishermen be aware that the risk assessment suggests that:
consumption of black sea bass be limited to one meal per month if they are obtained in Areas 2 arid 3; that scup not be
consumed from Areas 2 or 3; and that general guidelines for shellfish include limiting consumption to one meal a
month in Area 2 (one meal per week in Clark's Cove), See map above for a. summary of EPA's recommendations.
It is important to recognize the substantial benefits of fish consumption for everyone, fish is one of the best sources
of fatty acids which are helpful in reducing the risk of heart disease, In order to avoid exposure to a harmful level of
contaminants, people should choose a variety of fish and shellfish from a variety of sources.
Top of Rwe
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
Water Quality and Turbidity Performance Standards
-------
APPENDIX A
State Enhanced Remedy - Performance Standards
MADEP 401 Water Quality Program Standards: Dredge & Fill
1. Anti-degradation provisions of the Massachusetts Surface Water Quality Standards
protect all waters, including wetlands. The Contractor shall take all steps necessary
to assure that the proposed activities will be conducted in a manner, which will avoid
violations of said standards.
2. Prior to the start of in-water work, the SER Project Manager (SER PM) shall be
notified of any proposed change(s) in plans that may affect waters or wetlands. .
3. Environmental Monitor. The contractor shall employ an "Environmental Monitor" (EM).
An assistant to the EM shall be hired if needed. The EM shall have a minimum of five
(5) years experience in wetlands protection, erosion and sedimentation control, water
quality monitoring, site maintenance, site drainage, dredging operation management and
general site construction. The EM shall verify the placement and performance of
erosion/sediment/turbidity control measures and shall have the authority to halt
construction for erosion control purposes or for other threats to public health, safety or
the environment. The name and phone number(s) of the EM and his or her assistant, if
needed, and back-up shall be provided to the Department and other governmental
agencies charges with oversight of the project so that s/he may be contacted on a 24-hour
basis, seven days a week to address any emergency situation. The EM shall be
authorized to contact the Department directly for any matter involving wetland
protection. The EM shall submit bi-weekly reports to the Department, following the
commencement of construction and continuing until completion of work in resource
areas. The bi-weekly reports shall summarize, by station location, the status of
construction, the condition of the site, the weather conditions and shall report any
erosion, sedimentation, discharge or pollution problems and how they were corrected,
along with recommendations on how to prevent similar problems in the future. The EM
shall immediately report any erosion, sedimentation or pollution problems to the Resident
Engineer(s), who shall take immediate steps to correct those problems. The EM shall
immediately report any unauthorized discharges of sediments to the Department and
Resident Engineer(s) who shall take immediate steps to correct those problems. The EM
shall submit annual reports for a minimum of five years to the DEP Greenbush Designee
following completion of replication area construction and shall submit an outline of the
report for approval by the Department prior to preparation of the first report.
4. All dredge and fill activities shall meet NOAA & MassDMF conditions to protect winter
flounder spawning & the alewife fish run that passes through the harbor to the Acushnet
Sawmill Pond spawning area.
5. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project, proposing both
non-structural and structural BMPs to limit erosion & sediment laden discharge during
-------
land clearing filling and construction, shall be prepared and submitted to the Department
for prior review and written approval prior to commencement of. The SWPPP shall
emphasize measures to contain and prevent sediment laden water from being discharged
from dewatering activities from areas within the bulkhead sheet pile that is to serve as a
containment device. Further, the SWPPP shall meet the criteria established for such plans
contained in the NPDES Construction General Permit. . All proposed dewatering shall
be identified in the site specific SWPPPs and shall not exceed the following limits when
discharged:
a) pH: pH shall be 6.5 to 8.5 for discharge to salt water bodies. The SWPPPs shall
identify the specific measures to be taken to adjust the pH to acceptable limits [for
example, carbon dioxide (COT) bubbling when concrete pouring is also occurring],
6. As proposed, silt-curtains and absorbent booms shall be deployed to enclose the area
being dredged and filled. The contractor's plan for deployment of the silt
curtains/absorbent booms shall be submitted to the Department and SER PM for
review prior to the start of in-water work. Should the deployment of silt-curtains
prove not feasible or be unsuccessful, the SER PM will be notified prior to any
dredging without silt curtains.
7. Water Quality Monitoring: ^
a. When the dredging and filling operation is contained within a silt-
curtained area, the following water-quality monitoring program shall be
carried out daily for the first three days of activities commencing and once a
week thereafter for dredging operations and during those times when
dewatering activities are ongoing from the terminal fill operation :
i. A reference location shall be established outside of and
approximately 200-feet from the silt-curtained area and a
monitoring location shall be established outside of and within 15-
feet of the silt-curtain.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference and monitoring locations, at established depths:
near the water's surface, at the mid-point of the water column and
near the bottom. The three values obtained shall be averaged, such
that a single, representative turbidity value is calculated for the
monitoring site and a single, representative value is calculated for
the reference site.
iii. Turbidity shall be measured at both the monitoring and reference
site prior to the start of dredging, and once every two hours during
dredging.
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the monitoring
site exceeds the average reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
-------
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
>21
Reference plus 30% of reference
v. If, in two consecutive monitoring events, the average turbidity at
the monitoring site exceeds the average turbidity at the reference
site by more than the permissible turbidity increase, then water
samples, composited over the entire water column, from both the
monitoring and reference sites shall be collected and submitted for
analysis of Total Suspended Solids, dissolved PCBs, arsenic,
cadmium, copper, chromium, lead, mercury, nickel, and zinc.
When samples are submitted to the laboratory, a 36-hour turn-
round time shall be requested. Additionally, the Proponent, or
their contractor, shall take operational action(s) designed to limit
such exceedences, such as increasing the dredge cycle time,
inspection and any necessary repair, of the silt curtains^
deployment of an additional row of silt curtains or other mitigation
measures. Turbidity monitoring shall continue on the schedule
outlined in Section 6.a.iii, until compliance is reestablished.
vi. If compliance can not be reestablished within 48 hours, dredging
shall cease and Department and any other interested local, state, or
federal agency staff, in consultation with the Proponent, their
contractors and/or consultants shall review the operational actions
undertaken, the results of the analyses of the water samples and
evialuate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
b. Should the deployment of silt-curtains prove not possible or be
unsuccessful, the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and twice a week
thereafter for dredging activities and during those times when dewatering
activities are ongoing from the terminal fill operation:
i. A reference location shall be established approximately 200-feet
up-current from the dredge and a monitoring location shall be
established 200-feet down-current from the dredge.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference location and the monitoring location, at
established depths: near the water's surface, at the mid-point of the
water column and near the bottom. The three depth values
obtained shall be averaged, such that a single, representative
turbidity value is calculated for the reference location and a single,
representative turbidity value is calculated for the monitpring
location.
iii. Turbidity shall be measured at both the reference location and at
the edge of the mixing zone prior to the start of dredging, and once
every two hours of dredging.
-------
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the edge of the
mixing zone exceeds the reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
21-30
Reference plus 10 NTUs
>31
Reference plus 30% of reference
v. If, in two consecutive monitoring events, the average turbidity at
the edge of the mixing zone exceeds the average turbidity at the
reference site plus the permissible turbidity increase, then water
samples, composited over the entire water column, from both the
reference location and the edge of the mixing zone shall be
collected and submitted for analysis of Total Suspended Solids,
dissolved PCBs, arsenic, cadmium, copper, chromium, lead,
mercury, nickel, and zinc. When samples are submitted to the
laboratory, a 36-hour turn-round time shall be requested.
Additionally, the Proponent, or their contractor, shall take
operational action(s) designed to limit such exceedences, such as
increasing the dredge cycle time, inspection and any necessary
repair, of the silt curtains, deployment of an additional row of silt
curtains or other mitigation measures. Turbidity monitoring shall
continue on the schedule outlined in Section 6.b.iii, until
compliance is reestablished,
vi. If compliance cannot be reestablished within 48 hours, dredging
shall cease and the Department and any other interested local, state
or federal agency staff, in consultation with the Proponent, their
contracts and/or consultants shall review the operational actions
undertaken, the results of the analyses of the water samples and
evaluate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
8. As proposed, dredging of contaminated, silty sediment shall be done using a closed,
environmental, clamshell bucket. Where pilings or other debris are found to interfere
with environmental bucket closure or equipment operation, a conventional clamshell
bucket may be used to extract the pilings/debris. Sediment removal during such
activity shall be minimized to the greatest extent practicable. Should dredging with
the environmental bucket become unfeasible or unsuccessful, the SER PM must be
notified prior to any contaminated sediment dredging not using the environmental
bucket, and the contractor must also continue to meet the project water quality
standard performance standards.
9. Water discharged from the barge shall be appreciably free of suspended sediment and
meet the water quality criteria established in Section 4 (above). Any free liquid
-------
flowing from the barge in the harbor shall be passed through a sand media filter or
equivalent filtration system (which must be approved by the project Resident
Engineer) prior to discharge.
12 The Resident Engineer and EM shall be responsible for anticipating the need for and
installation of additional erosion/sediment/turbidity controls and shall have the
authority to require additional control measures to protect the resource areas beyond
what is shown on the plans, if field conditions or professional judgment dictate that
additional protection is necessary.'
13. Emergency Response/Spill Prevention Plan: Included in said Plan shall be the contact
responsible for shutting down BMPs discharging to the New Bedford Harbor in the
event of a spill and maintenance practices to be employed to make sure gate valves or
other shut down measures work appropriately to prevent spills from entering the
adjacent waters.
14. During dewatering, if necessary, the discharge point shall be protected. Water from
dewatering activities shall be filtered via the use of a portable sedimentation tank that
removes suspended solids, temporary sedimentation basins, or other means prior to
discharge.
15. Diesel-powered equipment shall be fitted with after-engine emissions controls such as
oxidation catalysts or particulate filters.
16. Within 30 days of the completion of the initial dredging, a bathymetric, survey of the
dredge footprint, depicting post-dredge conditions, shall be sent to the MADEP SER
Project Manager.
17! Disposal of any volume of dredged material at any location in tidal waters is subject
to approval by the Department and the Massachusetts Coastal Zone Management
office. j
18. A baseline condition report detailing existing conditions of all areas proposed to be
transformed to salt marsh shall be submitted to the Department, An annual progress
report shall be produced at the end of each year following construction of the salt
marsh area for a period of five (5) years, and shall be submitted by the EM to the
Department, no later than December 30 of each year. All reports shall be prepared in
the same format so that a comparison can be made from each year to the next. The
first annual report shall be prepared and submitted no later than December 30 of the
first year following the implementation of the salt marsh creation. The existing
conditions report and all annual reports shall include, in textual, tabular and graphic
formats, percent of vegetative cover, a list of plant species, coverage of wetland
plants as a percentage of all plants, and an evaluation of relative plant vigor (i.e.
mortality rate of existing species and number or new species) and any changes
observed in soils or hydrology. Additionally, the report shall include representative
photographs of site conditions and recommendations for improvement. These reports
shall also summarize agency consultations pertaining to the restoration project, the
-------
remedial responses to those problems and appropriate recommendations for future
project.
19. Any changes made to documents submitted shall be immediately forwarded to the
Department for review and comment.
MADEP Chapter 91 Waterways Standards:
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Proponent to conform to all terms and conditions herein.
2. All subsequent maintenance dredging and transportation and disposal of this dredge
material, during the term of this Project shall conform to all standards and conditions
applied to the original dredging operation performed under this Project.
3 . After completion of the work authorized, the Proponent shall furnish to the
Department a suitable plan showing the depths at mean low water over the area
dredged. Dredging under this Project shall be conducted so as to cause no
unnecessary obstruction of the free passage of vessels, and care shall be taken to
cause no shoaling. If, however, any shoaling is caused, the Proponent shall at his/her
expense, remove the shoal areas. The Proponent shall pay all costs of supervision,
and if at any time the Department deems necessary a survey or surveys of the area
dredged, the Proponent shall pay all costs associated with such work.
4. The Proponent shall, at least three days prior to the commencement of any dredging
in tide water, give written notice to the Department of the time, location, and amount
of the proposed work.
Special Waterways Conditions
5
1. Dredge material shall be transported to suitable disposal facilities' unregulated
dumping of dredge materials is not permitted.
2. The Proponent shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during dredging activities.
3. The Proponent shall provide and maintain in good working order appropriate United
States Coast Guard (USCG) approved navigation aids to assist mariners in avoiding
work areas as required by the USCG.
4. The Proponent shall maintain vehicular access to water-dependent users throughout
construction activities. As part of the final design plan, the Proponent describes the
means by which the public shall provide reasonable measure to provide on-foot
public passage consistent with the need to avoid undue interference with the water=-
dependent uses of the project.
-------
5. The Proponent shall remove and properly dispose of all temporary structures no later
than three. (3) months after completion of the dewatering and amendment of the
sediments. Temporary structures are defined as berms and dikes; lime silo;
dewatering tanks, erosion and sediment control systems, pipes, and siltation curtains.
6., Modification to this Project: the SER PM, may review on an individual basis,
modifications to construction activities and/or temporary structures which represent
and insignificant deviation from original specifications, in terms of configuration,
materials or other relevant design or fabrication parameters as determined by DEP
within all areas of construction. Such review shall be in accordance with the
following procedure:
a. The Proponent shall submit a written request describing the proposed
modifications to the work accompanied by plans, for prior review of the DEP.
The DEP will consider comments submitted within ten (10) days of the DEP's
receipt of the request. The DEP will send any significant modifications to the
Resource Agencies for review and comment and to identify any future
Performance Standards, if necessary. EPA will also have the opportunity to
make a consistency determination if the change is significant, as necessary.
The DEP will notify the Resource Agencies.of any minor modifications.
7. After completion of the work authorized the Proponent shall furnish the Department a
suitable plan showing the depths at mean low water over the areas dredged within 90
days of completion if each phase of the dredging.
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix D
Commonwealth of Massachusetts ARAR Letters
August 27, 2010
February 10, 2010
June 18, 2010
-------
Commonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
One Winter Street Boston, MA 02108 *617-292-5500
OEVAL L PATRICK. .. RICHARD K. SULLIVAN JR.
Governor Secretory
TIMOTHY P. MURRAY KENNETH L KIMMELL
Lieutenant Governor Commissioner
To: EPA Region 1 .. .
From: Philip Weinberg, MassDEP, Office of Operations and Environmental Compliance
Re: South Terminal (Updated) ARARs Overview
Date: June 18,2012
The Department of Environmental Protection is pleased to submit this updated these Applicable
or Relevant and Appropriate Requirements (ARAR) in connection with the South Terminal
project, which is comprehensively described in the report entitled Enhanced Remedy in New
Bedford, South Terminal, January 18, 2012("SER Report" or "Report"). This Report, in turn,
supplements and updates the Reports previously submitted to EPA on or about August 25,2010
and February 10, 2012. This memorandum further reflects the Executive Office of Energy and
Environment's "Response to USEPA Comments on the Commonwealth of Massachusetts
January 18,2012 Submission for the New Bedford Marine Commerce Terminal (NBMCT) (June
18,2012) (" EPA Response Memo").
The project envisions the construction and operation of a marine terminal approximately within
the Designated Port Area of the New Bedford Harbor at a site north of and proximate to the
Harbor's Hurricane Barrier. The project also contemplates navigational dredging to
accommodate vessels' access to the terminal. MassDEP has sent previous ARARs letters, the
last being August 27,1997, for the remedy at the New Bedford Harbor Superfund Site Operable
Unit 1. The ARARs identified in this report will update the original ARARs and include ARARs
relative to the South Terminal project as seen on Table 1.
The project's potential impacts associated with filling and dredging include:
Permanent Impacts
• Areas of Proposed Filling:
o 1.94 acres of intertidal area - Recalculated Intertidal Area,
o 4.06 acres of shallow, near-shore sub-tidal area; and
o 0.18 acres of salt marsh will be filled during the construction of the facility.
This Information is available In alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TDD# 1-866-539-7622 or 1-617-574-6868
MassDEP Website; www.mass.gov/ciep
Printed on Recycled Paper
-------
o 0.67 acres of area that will be dredged, partially filled with a concrete blanket
along the bottom as well as piles needed to support the pile-supported section of
the quay, and shaded by the concrete platform.
• Areas of Dredging (Existing Depth Between -1 and -6 MLLW):
o 7.02 acres of near-shore, subtidal area will be dredged from between -1 and -6
MLLW to between -30 and -32 MLLW (Quayside Areas - Increased Due to the
Potential Extension of the Deep-Draft Dredging Area to the South and Due to
Potential Widening of Deep-Draft Channel By 50 Feet).
o 8.46 acres of near-shore, subtidal area will be dredged from -1 MLLW to -6
MLLW to -14 MLLW (Quayside Areas and Tug Channel).
• Shellfish Impacts
o Based upon the revised area of impact as described above, the number of shellfish
anticipated to be impacted has been revised. The total shellfish anticipated to be
impacted by the project is now estimated at: 9,817,121.
Temporary Impacts
• Areas of Dredging (Existing Depth Between -1 and -6 MLLW):
o 8.76 acres of near-shore, subtidal area will be dredged to -45 MLLW, filled and
capped (CAD Cell).
o 6.17 acres of near-shore, subtidal area will be dredged from -4 to -6 MLLW to
between -6 and -7 MLLW (Gifford Street Channel Re-Alignment and Mooring
Mitigation Areas - Reduced due to the reduction in size of the Northern Mooring
Mitigation Area).
• Areas of Dredging (Existing Depth between -20 and -30 MLLW):
o 8.29 acres of subtidal area will be dredged from -20 to -29 MLLW to -30 MLLW
(South Terminal Channel - Increased Due to the Potential Extension of the Deep-
Draft Dredging Area to the North).
o 15 acres of subtidal area will be dredged to -30 MLLW (Maintenance Dredging of
Federal Navigation Project -
• Blasting Impacts - To be minimized to the extent possible as discussed herein.
• Mitigation for, impacts to winter flounder, shellfish and salt marsh Including:The
proposed
o Winter Flounder spawning habitat creation will be increased by 5
acres, from 17.73 acres to 22.73 acres.
o The OU-3 Hot-Spot Capping Mitigation Area will be increased in size such .
that the following increases in habitat creation or enhancement area realized:
2
-------
o The intertidal portion of the OU-3 Hot-Spot Capping Mitigation Area will be
increased in size by approximately 1 acre from 3.47 acres to 4.47 acres of
inter-tidal area that will be either created or enhanced,
o The sub-tidal portion of the OU-3 Hot-Spot Capping Mitigation Area will be
increased approximately 4 acres from 10.91 acres to 14.91 acres,
o Creation/Enhancement of up to approximately 1.9 acres of successional marsh
area will still be included within the mitigation package, as outlined within the
Commonwealth's January 18,2012 submittal,
o Completion of the Tern Monitoring Program as outlined within the
Commonwealth's January 18,2012 submittal,
o Shellfish mitigation as outlined within the Commonwealth's response to
Question 7E to EPA's May 21, 2012 letter.
Terminal Design and Construction
310 CMR 10:00 Wetlands Regulations
All the activities associated with the project lie within a Designated Port Area (DPA), locations
dedicated to marine industrial and commercial purposes.1 Based on currently available
information, there are no inland resource areas subject to jurisdiction under the Department's
Wetland Regulations, 310 CMR 10.00. The Wetland Regulations at 310 CMR 10.26 establish
the performance standards for activities proposed in wetland resource areas within a DPA. The
regulation designates land under the ocean in a DPA as significant to the wetland interests of
marine fisheries, storm damage prevention and flood control, and presumes that such land is not
significant to other interests including salt marsh, land containing shellfish, coastal beaches, and
tidal flats. Therefore, the performance standards applicable to those marine resource areas are
not applicable to projects within the DPA absent unique conditions not present in the site of this
DPA. Moreover, impacts to these areas from filling have been compensated for through
mitigation discussed below.
Projects in the DPA must be designed and constructed using best practical measures to minimize
adverse effects on: (a) fisheries through changes in water circulation and water quality; and (b)
storm damage prevention or flood control caused by changes in the land's ability to provide
support for adjacent coastal banks or engineering structures. There is nothing unique about the
construction or location of the bulkhead to suggest that it would have an adverse impact on water
circulation which is driven primarily by meteorology and tides in this locale. Dredging and
filling activities may cause temporary impacts to water quality, which will be addressed through
1A locale is established as a DPA pursuant to the Coastal Zone Management Regulations at 301 CMR 25.00.
-------
a through development of a comprehensive Stormwater Pollution Prevention Plan (SWPPP) as
discussed in further detail in Appendix A.
Given the bulkhead's location in relation to the hurricane barrier, there is no reason to conclude
that the terminal will have an adverse impact from storm damage or flooding to the coastal bank,
or boat ramp or marine industrial bulkhead located on adjacent parcels. The Terminal will be
constructed to minimize potential flood impacts. Regarding the need to provide for
compensatory flood storage for the placement of fill in the harbor to construct the containment
structure, the Department finds that the need for such compensatory flood storage is not
warranted. Generally, in the Wetland Regulations at 310 CMR 10.57, compensatory flood
storage is regulatory required in inland riverine flood producing conditions where displacement
of flood waters in a confined landscape would result in the lateral displacement of flood flows
and potentially injure adjacent properties. There is no regulatory requirement to provide such
compensatory flood storage in the coastal zone/open ocean flood zones. The exception is for
those FEMA areas such as Coastal Flood AH zones where such as confined area of shallow over-
wash ponding potentially could have flood waters displaced by fill therefore needing flood
storage compensation to prevent shifting flood waters onto adjacent property. Given that the
New Bedford Harbor is designated as a FEMA Coastal Flood Zone A-E with a Base Flood
Elevation of 5, and is riot a confined, shallow or restrictive basin, the Department is of the
opinion that compensatory flood storage is not needed or required under the Wetlands Protection
Act.
The potential stormwater impacts to coastal wetland resources as a result of terminal
construction will be addressed through compliance with the water quality performance discussed
below. Based on information currently available, there are no upland state wetland resources
areas impacted by construction activities. However, as additional site resource delineations are
conducted and construction management plans developed, MassDEP will require said
delineations and plans are reviewed by the Department and appropriate stormwater management
design and best management practices are implemented to ensure compliance with the
stormwater performance standards of the Wetland Regulations. 310 CMR 10.05(6)(k) -
Stormwater Management
314 CMR 9.00 Water Quality Certification
The South Terminal's bulkhead is to be constructed with sheetpiling and backfilled with 150,000
cubic yards of clean sand generated by navigational dredging projects undertaken in the Harbor.
The bulkhead will infill approximately 6.0acres of intertidal and near shore habitat and 0.18
acres of salt marsh and .67 acres of area of terminal supporting structures. The intertidal and
subtidal areas of the proposed bulkhead are currently contaminated with lower levels of PCBs.
An additional 34,000 cy of clean material generated from navigational dredging will be used to
4
-------
grade the upland portions of the facility for the wind blade lay down area and ancillary staging
and loading uses.
The Water Quality Certification Regulations at 314 CMR 9.06(1) require an alternative analysis
that demonstrates no practicable alternative to the project will have a less adverse effect on the
aquatic environment. The SER Report sets out the basis for the Department's conclusion that
there is no other practicable location or configuration for the project that will meet its primary
purpose in serving the off-shore renewable energy. The Report satisfies the regulation's
alternative analysis performance standard. Furthermore, the South Terminal project will
generate additional collateral environmental benefits to the Harbor clean-up and surrounding
habitat in that it provides (a) a construction-related reuse for CAD generated material, (b) a
location capable of providing future means to store and reuse CAD sediment, and (c) the
mechanisms by which the proposed mitigation measures will eliminate exposure of the aquatic
environment to PCB contamination. The terminal also allows the project to comply with the
provision of 314 CMR 9.07(1 )(e), which compels reuse or recycling of dredged material rather
than its disposal.
The regulation at 314 CMR 9.06(2) requires that appropriate and practicable steps be taken to
avoid and minimize potential adverse impacts to land under water or the intertidal zone. The
Department has developed standard protocols to regulate construction activities in shoreline
areas to avoid and minimize adverse impacts to water quality and benthic habitat through the use
of time of year restrictions and best management practices. In regard to the bulkhead, most of the
impacts to the intertidal areas will occur behind the sheet piling. The provisions in Appendix A
describe the means by which the filling associated with the Terminal construction will meet the
water quality standards as enforced through the water quality certification performance
standards. As noted above, construction related stormwater impacts will be addressed through
the SWPPP. There is nothing unique about this project that indicates that through site-specific
application of these protocols the avoidance and minimization standard cannot be achieved.
When MassDEP previously determined which MassDEP regulations apply to the project, it was
contemplated that the bulkhead could potentially incorporate anthropogenic, contaminated
dredge spoils. As a consequence, it was determined that the terminal would be regulated as a
Confined Disposal Facility (CDF) pursuant to 314 CMR 9.07(8). In light of the representation
that the bulkhead construction and lay down area grading material will be composed only of
clean sand, the CDF performance standards are no longer relevant. The bulkhead construction
and site grading material may be regulated as the reuse of dredged material under the appropriate
reuse alternatives set out in 314 CMR 9.07(9)(a) and (b). 314 CMR 9.07(?)(a) allows for the
> shoreline placement of dredged material proximate to the dredging activity that lies with a flood
plain and identifies placement of material behind a bulkhead as valid reuse alternative. The SER
report identifies the site ass within the FEMA mapped 100-year flood plain.
5
-------
The use of clean, dredged sand for the purpose of grading the upland areas of the site is regulated
pursuant to 314 CMR 9.07(9)(b). This provision provides for the placement of dredged material
in an upland area for fill or reuse, provided the concentration of contaminants in the material (1)
do not exceed the S-l applicable at the receiving location, as specified in 310 CMR 40.0975, (2)
is not a hazardous waste, and (3) will not adversely affect a potable water supply, Additional
provisions require that contaminants in the material not be significantly different or greater than
the receiving location's background conditions, the reuse occur in a DPA if practicable, and the
material be appropriately dewatered and otherwise managed in accordance with applicable
regulations at 314 CMR 9.07. The Report's representation that only clean sand would be
employed makes it reasonably likely that the material would not exceed S-l standards or the
background conditions at the proposed reuse locations. Based on historic sampling data and
standard sampling protocols, MassDEP would establish an appropriate construction sampling
methodology to confirm that the material designated for upland reuse met the applicable
compliance standard.
In addition to the foregoing, the construction of the terminal is also subject to the following
additional Regulations:
Surface Water Quality Standards. 314 CMR 4.00, et seq.:
314 CMR 4.03 Application of Standards
314 CMR 4.04 Antidegradation Provision
314 CMR 4.05 Classes and Criteria
The project proponent has committed to implementing and otherwise complying with the Water
Quality performance standards and Best Management Practices more particularly described in
Schedule A. MassDEP asserts that by virtue of the project proponent's implementation of these
performance standards and BMP's, the terminal construction activities will comply with the
substantive requirements of the Water Quality program.
310 CMR 9.00 Waterways
The terminal is also regulated under the Waterways regulations, 310 CMR 9.00. The terminal's
functions classify it as a water dependent-industrial facility under the criteria at 310 CMR 9.12: a
facility related to the construction and storage of marine structures, a marine terminal for transfer
between ship and shore of water-borne goods, and an ancillary activity to offshore renewable
energy infrastructure. As a water dependent facility, the project is presumed to serve a proper
public purpose (310 CMR 9.31). There is nothing in the record to indicate that this project is
displacing an established, reasonably continuous water-dependent use in contravention to 310
CMR 9.36(4). Water dependent industrial structures within the tideland area of a DPA may be
6
-------
constructed with fill, provided that neither pile supported, nor floating structures are a reasonable
alternative. 310 CMR 9.32(l)(b)2.
The SER Report presents convincing information that the massive weight and pounds per square
inch pressure exerted by the mobile cranes used to unload and stage the turbine components
establish that a pile supported or floating structure are not practicable alternatives to meet the
~ iy
operational design requirements of the Terminal (See, Sec. 4.3.2). This section incoiporates
information previously provided to the Department on May 6, 2011 to further analyze the
relationship between the required weight bearing capacity of the terminal and its design. The
Report describes how a typical mobile crane weighing 600 metric tons can, in the course of an
unloading operation, generate in excess of 12,000 psf. Those estimates are consistent with the
load designs of European ports that have supported off-shore wind installations. The vibration
produced as the cranes move from the unloading to the staging area can also severely impact
structures with fixed point load bearing, such as pile supported structures, disrupting the
connection points and causing early failure.
The need for crane mobility and their operating loads require, as a practical necessity, a crushed
stone surface, rather than a concrete operating surface, to prevent the cracking of the concrete
deck due to settlement and wear and tear. To avoid cracking the deck on a pile supported
structure, the project requires an additional three feet of fill that will further increase the load
bearing demands on a pile structure and raise its elevation 7 feet more than the current bulkhead
alignment. A pile supported structure built to carry these loads would require pilings of a
dimension and density that would reasonably preclude navigating or walking under the structure,
thereby virtually eliminating any public access opportunities that a standard pier pile supported
structure might provide, and having sufficient density as to have the effect of being fill in terms
of its effect on marine resources.
These factors combine to preclude reliance on a pile supported structure as a reasonable design
choice. This conclusion is further supported by the Department's records, which indicate that
these cranes weigh 12 times and 6 times more than the cranes at the largest cargo marine
terminals operating in Boston and New Bedford, respectively. Floating structures are also
incompatible with the primary purpose of the terminal, given the foregoing load bearing
constraints and the need for a stable infrastructure to transfer and stage these heavy'turbines'.
The terminal also meets the Engineering and Construction standards at 310 CMR 9.37.
The site investigation of the upland portion of the terminal site identified that major portions of
the site were underlain at relatively near surface depths with a variety of waste materials. Certain
test pits also showed the presence of hydric soils and invasive plants that can propagate in
2 The EPA Response Memo updates the SER to describe a portion of the terminal that will be supported by a
concrete blanket and pilings.
7
-------
anaerobic conditions. The Department does not consider those areas jurisdictional wetlands. In
addition, the SER Report noted that at least one area has been identified as the site of release
regulated under M.G.L. c. 2IE. The Department anticipates that as the project progresses a more
detailed site assessment will be conducted pursuant to Massachusetts Contingency Plan
regulations, 310 CMR 40.000, and the appropriate response actions will be implemented, if
required.
The proposed site development design the Department reviewed in 2010 incorporated a
temporary bridge between two parcels of land that traversed an intertidal salt marsh. The current
design connects those parcels through an entirely different route outside of the intertidal area and
salt marsh. Therefore, the discussion in the Department's August 25th memo on the temporary
impacts associated with the bridge is no longer releyant.
In addition to the foregoing, the construction of the terminal is also subject to the following
Waterways Regulations, at 310 CMR 9.00, et seq.:
9.12(2)(a)(9 and 14) - Water-dependent use
9.32(l)(a and b) - Categorical Restrictions on Fill and Structures
9.34 - Conformance with Municipal Zoning and Harbor Plans
9.35 - Standards to Preserve Water-Related Public Rights
9.35(2)(a)-Navigation
9.35(3)(a) - Fishing/fowling
9.35(3)(b) - On-foot passage
9.35(4) - Compensation
9.36 - Standards to Protect Water-Dependent Uses
9.37 - Engineering Standards
9.37(l)(c) Does not unreasonably restrict the ability to dredge any channels
9.40 - Standards for Dredging and Dredged Material Disposal
9.40(2) - Resource Protection Requirements
9.40(3) - Operational Requirements for Dredging
9.40(4) - Operational Requirements for Dredged Material Disposal
9.40(5) - Supervision of Dredging and Disposal Activity
The project proponent has committed to implementing and otherwise complying with the
Waterways performance standards and Best Management Practices more particularly described in
Schedule A. MassDEP asserts that by virtue of the project proponent's implementation of these
performance standards and BMP's, the terminal construction activities will comply with the
substantive requirements of the waterways licenses program.
310 CMR 7.00 Air Quality ,
In accordance with MassDEP Requirements and Guidelines, the contractor will be required to
develop a final Construction Management Plan that will define the measures to be taken to
-------
minimize air quality impacts. Best management practices will be required to be implemented
through the contract documents and methodologies for meeting performance standard will be set
out in the formal submittals from the contractor under the CMP. Such measures could include
such things as keeping exposed soil surfaces treated or wet, covering soil piles and providing
enclosed areas for fine materials that could easily be entrained into the air. Said plan should also
examine the options to provide short term fence line monitoring for PM2.5 along the boundary
with the nearest residential area and should consider the migration of toxics into the air from soil,
specifically PCBs and fugitive dust. Landside supplies of unconsolidated materials will be
covered when not in use. Dust suppression and control measures will be implemented as needed
and base on air quality monitoring results and the weather.
The Dust, Odor, Construction and Demolition standard of 310 CMR 7.09 will be followed.
This citation contains several requirements applicable to this project including;
o A requirement to notify the Department ten days prior to conducting any demolition on
site.
o A requirements that any demolition be performed in a manner so as to prevent or
minimize the creation of dust or odor including use of measures designed to prevent dust
such as seeding, covering, paving or wetting soil surfaces,
o A requirement that no person shall handle , transport or store materials in manner that
would create dust or odor.
Diesel Engines:
Any stationary emergency or standby engine installed at the site shall comply with the
requirements of 310 CMR 7.02(8)(i) and 310 CMR 7.26(40) and (44) as applicable. Any engine
that is mobile in nature,shall comply with federal standards with regards to limitation on the
sulfur content of fuel.
Construction equipment used for this project shall comply with federal off road diesel emission
standards including the use of ultra low sulfur diesel fuel (15 ppm sulfur content) in all diesel
engine powered equipment. All equipment shall meet the Tierl-3 emission standards for off-road
diesel equipment and to the extent practicable; all diesel powered equipment shall meet the Tier
4 emission standards (the final deadline for which is 2015), per 40 CFR Part 89.
Contractors will be encouraged to use diesel oxidation catalyst retro-fitted vehicles and
equipment, and project will be directed to DEP for retrofitting guidance.
The regulations also require specific opacity limits, based on equipment type. The regulation
states that no person who owns operates or controls a marine vessel, spark-ignited internal
combustion engine or non-stationary diesel engine shall cause, suffer, allow or permit visible
emissions including smoke, 310 CMR 7.06.
9
-------
1
To the extent any activities may include Groundwater/ Soil venting systems, Conveyors and dry
material storage silos, and rock crushing/processing as part of the construction or reconstruction
of the site, they shall comply with the requirements of 310 CMR 7.03.
Air Quality Monitoring
An air monitoring program will be conducted throughout the construction process. Appropriate
measures such as proper dust suppression measures will be implemented during construction
activities to prevent excessive emissions of particulate matter. Four air monitoring stations will
be established around the NBMCT construction project site. Daily measurements of particulate
matter (dust particles) in the air will be taken and evaluated. The results will be measured in
micrograms of particle per cubic meter and will be augmented with the meteorological (MET)
results for the average wind speed and direction.
The EPA Response Memo proposed to use the same criteria and coding system as used for the
Aerovox demolition project to determine the level of mitigation action. Using this system,
information will be made available to the surrounding communities and presented in a format
that will likely be familiar to those community members concerned about air quality or interested
in the data. (See, EPA Response Memo, p 48). MassDEP believes the Aerovox criteria and
protocol are sufficiently similar to the project to be adopted, pending review of the final CMP.
310 CMR 7.15 Asbestos:
Should the project require demolition of any structures (even as small as an equipment shed), the
structure to be demolished must be inspected and tested for the presence of asbestos prior to
demolition. If asbestos is found within the structure, asbestos must be removed from the structure
prior to demolition. Ten day notice to the Department and the Department of Standards is
required prior to removal of asbestos and the asbestos removal must be performed by a DOS
licensed professional.
310 CMR 7,10 Noise: Applies to construction and demolition equipment which
characteristically emit sound but which may be fitted with equipment including mufflers and
enclosures to surpass sound or may be operated in a manner so as to limit sound to periods of the
day when it will not be disruptive to the public. The owner/ operators of the project and their
consultant should develop a sound management plan to define the construction noise sources and
the mitigation measures to be taken to minimize sound impact from those sources. The plan
should cover all aspects of the construction and demolition project including equipment that may
not be able to be fitted with noise suppression and should propose time of day limitations for said
equipment.
310 CMR 8 .01 Requirement - Standards for the abatement of air pollution incident emergencies.
Pollution abatement controls may be required.
10
-------
Action to be Taken - Dredging and CDF construction will be implemented so as to avoid air
pollution emergencies. Engineering controls will be used as necessary.
Navigational Dredging
Navigational access to the terminal requires a combination of improvement and maintenance
dredging in excess of 17 acres of intertidal and subtidal areas. In addition, some blasting may be
required if the necessaiy channel depths cannot be achieved through conventional means. The
water quality regulations require a "LEDPA"-type analysis for dredge projects (314 CMR
9.07(l)(a). The SER Report and Response Memo set out a sufficient rationale for the extent of
the proposed dredging. The rationale is based upon a best information available analysis of the
configuration and number of primary and support vessels that will be required to implement the
project, consistent with the wind turbine facility's transportation and construction predicates.
314 CMR 9.00 Water Quality Certification
The water quality regulations also require that appropriate and practicable steps be taken to avoid
or, if avoidance is not possible, minimize and thereafter mitigate adverse impacts to land under
water and the intertidal zone. 314 CMR 9.07(l)(a). Dredging performance standards at 314
CMR 9.07(3) reiterate and expand upon the need to avoid and minimize impacts, including a
conditional prohibition on dredging within the migration, spawning or juvenile development of
aquatic species. Although this project involves improvement dredging, as compared to the
maintenance dredging conducted under the prior three phases of SER-approved dredge projects,
the performance standards imposed in those previous projects would be equally appropriate and
applicable to the navigational dredging associated with this project. In addition to aligning the
dredging scheduling in regard to the times of the year when resident and migratory species are in
their vulnerable phases of their life cycles, the establishment of mixing zones, the use of silt
curtains and environmental dredge buckets, real time dredge and dewatering related turbidity
monitoring and response plans, and environmental monitors' oversight will act in concert to
satisfy the "avoid and minimize" standard. The Waterways regulations, at 310 CMR 9.40(2) and
(3), impose more explicit dredge performance standards, such as conditionally precluding
dredging between March 15th and June 15th of any year, to avoid interference with fish runs, but
which can be met within the parameters of the scheduling, design and operating conditions
discussed above.
The EPA Response Memo describes the blast design parameters and means by which the
potential impacts to the fishery resources will be assessed and blasting impacts mitigated.
MassDEP that the protocols and mitigation measures described in the Memo will meet the
applicable water quality performances subject to the additional following conditions to be
incorporated in an approval of the dredge management plan.
11
-------
1. No blasting shall occur during periods of flounder spawning or during the alewife
spawning run if so determined by NOAA or MassDMF.
2. All blasting shall be conducted using inserted delays of a fraction of a second per hole, and
3. stemming, in which rock is placed into the top of the borehole to damp the shock wave
reaching the water column, thereby reducing fish mortalities from blasting.
4. All blasting operations are contingent upon using sonar, and with a fisheries observer present
who is approved by the Massachusetts Division of Marine Fisheries (and National Marine
Fisheries).
5. There shall be no blasting during passage of schools of fish or when a marine mammal is
present as determined by the fisheries observer.
6. Blasting activities occurring from February 15 to June 15 shall be conducted with fish startle
system, sonar and an approved fisheries observer to avoid impacts to anadromous fish
migration.
7. There shall be no disposal during passage of schools of fish as determined by the fisheries
observer.
8. The dredge contractor shall provide adequate notice to the fishermen/lobstermen on
anticipated significant dredge movements.
9. The dredge contractor shall maintain a short tow while inside New Bedford Harbor to
minimize disruption of vessels.
In addition to the foregoing, the dredging and filling activities associated with navigational
dredging and construction of the Terminal are subject to the following additional Regulations:
Water Quality Regulations, 314 CMR 4.00. et seq.:
314 CMR 4.03 Application of Standards
314 CMR 4.04 Antidegradation Provision
314 CMR 4.05 Classes and Criteria
The project proponent has committed to implementing and otherwise complying with the Water
Quality performance standards and Best Management Practices more particularly described in
Schedule A. MassDEP asserts that by virtue of the project proponent's implementation of these
performance standards and BMP's, the navigational dredging activities will comply with the
substantive requirements of the Water Quality program.
Waterways Regulations. 310 CMR 9.00. et seq.
9.12(2)(a)(9 and 14) - Water-dependent use
9.32(l)(a and b) - Categorical Restrictions on Fill and Structures
9.34 - Conformance with Municipal Zoning and Harbor Plans
9.35 - Standards to Preserve Water-Related Public Rights
9.35(2)(a) - Navigation
12
-------
9.35(3)(a) - Fishing/fowling
9.35(3)(b) - On-foot passage
9.35(4) - Compensation
9.36 - Standards to Protect Water-Dependent Uses
9.37 - Engineering Standards
9.37(l)(c) Does not unreasonably restrict the ability to dredge any channels
9.40 - Standards for Dredging and Dredged Material Disposal
9.40(2) - Resource Protection Requirements
9.40(3) - Operational Requirements for Dredging
9.40(4) - Operational Requirements for Dredged Material Disposal
9.40(5) - Supervision of Dredging and Disposal Activity
The project proponent has committed to implementing and otherwise complying with the
Waterways performance standards and Best Management Practices more particularly described in
Schedule A. MassDEP asserts that by virtue of the project proponent's implementation of these
performance standards and BMP's, the navigational dredging activities will comply with the
substantive requirements of the waterways licenses program.
The Navigational Dredging is subject to the following Wetlands Regulations, 310 CMR 10.00, et
seq.:
310 CMR 10.25 - Land Under Ocean
310 CMR 10.26 - Designated Port Areas
310 CMR 10.27 - Coastal Beach
310 CMR 10.30 - Coastal Bank
310 CMR 10.32-SaltMarsh
310 CMR 10.34 - Land Containing Shellfish
310 CMR 10.35 - Banks of Land Under the Oceans, Ponds, Rivers, Lakes, or Creeks that Underlie
an Anadromous/Catadromous Fish Run
The project proponent has committed to implementing and otherwise complying with the Wetlands
performance standards and Best Management Practices more particularly described in Schedule A.
MassDEP asserts that by virtue of the project proponent's implementation of these performance
standards and BMP's, the navigational dredging activities will comply with the substantive
requirements of the Wetlands program.
Mitigation for Unavoidable Impacts
The SER Report identifies a matrix of potential mitigation projects within and proximate to the
terminal that replicate or improve the resource areas impacted by the project, including salt
marsh, intertidal and the subtidal areas. The proposed mitigation will result in the creation of
17.73 acres of Winter Flounder spawning habitat, creation/enhancement of 3.47 acres of inter-
tidal area and enhancement of 10.91 acres of near-shore, shallow, sub-tidal areas located in the
outer harbor, immediately southwest of the Hurricane Barrier, creation/enhancement of up to
13
-------
approximately 1.9 acres of a combination of successional marshareas (mudflat, low marsh, high
marsh, and transitional area), completion of a Tern Monitoring program to provide additional
information on the utilization of New Bedford Harbor by terns, and a combination of
transplanting and/or seeding of shellfish (however, no shellfish will be transplanted from Fish
Closure Area 1 to areas outside of Fish Closure Area 1). The selection principles applied in
identifying the prospective mitigation measure are consistent with the criteria the Department
applies in reviewing compensatory mitigation measures. The Department has consulted with the
Division of Marine Fisheries who has confirmed that the areas and depths identified for the
creation of flounder habitat are appropriate. The sub-tidal and inter-tidal habitat mitigation area
is proposed at a location that was previously an intertidal area. Thus, it constitutes restoration of
inter-tidal area, is desirable as a mitigation location, and has a high degree of likelihood of
success. The Mass Department of Public Health has confirmed in writing that the shellfish
transfer from the contaminated areas would not meet DPH regulatory requirements because of
the levels of contamination in the shellfish. Therefore, the mitigation proposal was revised to
indicate this restriction. The proponent now proposes as mitigation that shellfish be re-seeded or
transplanted from uncontaminated areas. None of the proposed mitigation will displace an
established water dependent use.
The concept of capping contaminated areas to improve benthic water quality and, in effect,
create improved habitat, as proposed in the OU3 area, is a mitigation approach the Department
recognizes as an acceptable mechanism to redress impacts from hazardous waste remediation
projects, including dredging and filling projects.. The salt marsh mitigation area includes an area
of PCB contaminated sediments located within a drainage swale. Further review and analysis
provides persuasive evidence that the PCB contamination in the drainage swale was likely from
discontinued CSO discharges to the area known as OU-3, arid therefore would not be likely to
provide future contamination of the restored salt marsh.
There are several prospective mitigation measures that currently lack a financial commitment to
conduct or complete. The Department anticipates that prior to the commencement of the
project's construction, further clarification of the funding aind scheduling of the selected
mitigation measures will be documented and implemented. As further details of the dredging
design are formalized, the Department will exercise oversight in the adoption of the final group
of mitigation measures, and review the final designs, engineering controls, monitoring and
contingency plans to ensure that project's impacts to essential fish habitat are adequately
addressed and impacts during the construction period of the project and the selected mitigation
measures are minimized.
14
-------
APPENDIX A
State Enhanced Remedy — Performance Standards
I MADEP 401 Water Quality Program Standards: Dredge & Fill
1. Anti-degradation provisions of the Massachusetts Surface Water Quality Standards
protect all waters, including wetlands. The Contractor shall take all steps necessary
to assure that the proposed activities will be conducted in a manner, which will avoid
violations of said standards.
2: Prior to the start of in-water work, the SER Project Manager (SER PM) shall be
notified of any proposed change(s) in plans that may affect waters or wetlands.
3. Environmental Monitor. The contractor shall employ an "Environmental Monitor" (EM).
An assistant to the EM shall be hired if needed. The EM shall have a minimum of five
(5) years experience in wetlands protection, erosion and sedimentation control, water
quality monitoring, site maintenance, site drainage, dredging operation management and
general site construction. The EM shall verify the placement and performance of
erosion/sediment/turbidity control measures and shall have the authority to halt
construction for erosion control purposes or for other threats to public health, safety or
the environment. The name and phone number(s) of the EM and his or her assistant, if
needed, and back-up shall be provided to the Department and other governmental
agencies charges with oversight of the project so that s/he may be contacted on a 24-hour
basis, seven days a week to address any emergency situation. The EM shall be
authorized to contact the Department directly for any matter involving wetland
protection. The EM shall submit bi-weekly reports to the Department, following the
commencement of construction and continuing until completion of work in resource
areas. The bi-weekly reports shall summarize, by station location, the status of
construction, the condition of the site, the weather conditions and shall report any
erosion, sedimentation, discharge or pollution problems and how they were corrected,
along with recommendations on how to prevent similar problems in the future. The EM
shall immediately report any erosion, sedimentation or pollution problems to the Resident
Engineer(s), who shall take immediate steps to correct those problems. The EM shall
immediately report any unauthorized discharges of sediments to the Department and
Resident Engineer(s) who shall take immediate steps to correct those problems. The EM
shall submit annual reports for a minimum of five years to the DEP Greenbush Designee
following completion of replication area construction and shall submit an outline of the
report for approval by the Department prior to preparation of the first report.
4. All dredge and fill activities shall meet NOAA & MassDMF conditions to protect winter
flounder spawning & the alewife fish run that passes through the harbor to the Acushnet
Sawmill Pond spawning area.
5. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project, proposing both
non-structural and structural BMPs to limit erosion & sediment laden discharge during
-------
land clearing filling and construction, shall be prepared and submitted to the Department
for prior review and written approval prior to commencement of. The SWPPP shall
emphasize measures to contain and prevent sediment laden water from being discharged
from dewatering activities from areas within the bulkhead sheet pile that is to serve as a
containment device. Further, the SWPPP shall meet the criteria established for such plans
contained in the NPDES Construction General Permit.. All proposed dewatering shall
be identified in the site specific SWPPPs and shall not exceed the following limits when
discharged:
a) pH: pH shall be 6.5 to 8.5 for discharge to salt water bodies. The SWPPPs shall
identify the specific measures to be taken to adjust the pH to acceptable limits [for
example, carbon dioxide (C02) bubbling when concrete pouring is also occurring].
6. As proposed, silt-curtains and absorbent booms shall be deployed to enclose the area
being dredged and filled. The contractor's plan for deployment of the silt
curtains/absorbent booms shall be submitted to the Department arid SER PM for
review prior to the start of in-water work. Should the deployment of silt-curtains
prove not feasible or be unsuccessful, the SER PM will be notified prior to any
dredging without silt curtains.
7. Water Quality Monitoring:
a. When the dredging and filling operation is contained within a silt-
curtained area, the following water-quality monitoring program shall be
carried out daily for the first three days of activities commencing and once a
week thereafter for dredging operations and during those times when
dewatering activities are ongoing from the terminal fill operation :
i. A reference location shall be established outside of and
approximately 200-feet from the silt-curtained area and a
monitoring location shall be established outside of and within 15-
feet of the silt-curtain.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference and monitoring locations, at established depths:
near the water's surface, at the mid-point of the water column and
near the bottom. The three values obtained shall be averaged, such
that a single, representative turbidity value is calculated for the
monitoring site and a single, representative value is calculated for
the reference site.
iii. Turbidity shall be measured at both the monitoring and reference
site prior to the start of dredging, and once every two hours during
dredging.
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the monitoring
site exceeds the average reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
-------
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
>21
Reference plus 30% of reference
v. If, in two consecutive monitoring events, the average turbidity at
the monitoring site exceeds the average turbidity at the reference
site by more than the permissible turbidity increase, then water
samples, composited over the entire water column, from both the
monitoring and reference sites shall be collected and submitted for
¦ analysis of Total Suspended Solids, dissolved PCBs, arsenic,
cadmium, copper, chromium, lead, mercury, nickel, and zinc.
When samples are submitted to the laboratory, a 36-hour turn-
round time shall be requested. Additionally, the Proponent, or
their contractor, shall take operational action(s) designed to limit
such exceedences, such as increasing the dredge cycle time,
inspection and any necessary repair, of the silt curtains,
deployment of an additional row of silt curtains or other mitigation
measures. Turbidity monitoring shall continue on the schedule
outlined in Section 6.a.iii, until compliance is reestablished.
vi. If compliance can not be reestablished within 48 hours, dredging
shall cease and Department and any other interested local, state, or
federal agency staff, in consultation with the Proponent, their
contractors and/or consultants shall review the operational actions
undertaken, the'results of the analyses of the water samples and
evaluate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
b. Should the deployment of silt-curtains prove not possible or be
. unsuccessful, the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and twice a week
thereafter for dredging activities and during those times when dewatering
activities are ongoing from the terminal fill operation:
i.. A reference location shall be established approximately 200-feet
up-current from the dredge and a monitoring location shall be
established 200-feet down-current from the dredge.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference location and the monitoring location, at
established depths: near the water's surface, at the mid-point of the
water column and near the bottom. The three depth values
obtained shall be averaged, such that a single, representative
turbidity value is calculated for the reference location and a single,
representative turbidity value is calculated for the monitoring
location.
iii. Turbidity shall be measured at both the reference location and at
the edge of the mixing zone prior to the start of dredging, and once
every two hours of dredging.
-------
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the edge of the
mixing zone exceeds the reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
21-30
Reference plus 10 NTUs
>31
Reference plus 30% of reference
v. If, in two consecutive monitoring events, the average turbidity at
the edge of the mixing zone exceeds the average turbidity at the
reference site plus the permissible turbidity increase, then water
samples, composited over the entire water column, from both the
reference location and the edge of the mixing zone shall be
collected and submitted for analysis of Total Suspended Solids,
dissolved PCBs, arsenic, cadmium, copper, chromium, lead,
mercury, nickel, and zinc. When samples are submitted to the
laboratory, a 36-hour turn-round time shall be requested.
Additionally, the Proponent, or their contractor, shall take
operational action(s) designed to limit such exceedences, such as
increasing the dredge cycle time, inspection and any necessary
repair, of the silt curtains, deployment of an additional row of silt
curtains or other mitigation measures. Turbidity monitoring shall
continue on the schedule outlined in Section 6.b.iii, until
compliance is reestablished.
vi. If compliance cannot be reestablished within 48 hours, dredging
shall cease and the Department and any other interested local, state
or federal agency staff, in consultation with the Proponent, their
contracts and/or consultants shall review the operational actions
undertaken, the results of the analyses of the water samples and
evaluate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
8. As proposed, dredging of contaminated, silty sediment shall be done using a closed,
environmental, clamshell bucket. Where pilings or other debris are found to interfere
with environmental bucket closure or equipment operation, a conventional clamshell
bucket may be used to extract the pilings/debris. Sediment removal during such
activity shall be minimized to the greatest extent practicable. Should dredging with
the environmental bucket become unfeasible or unsuccessful, the SER PM must be
notified prior to any contaminated sediment dredging not using the environmental
bucket, and the contractor must also continue to meet the project water quality
standard performance standards.
9. Water discharged from the barge shall be appreciably free of suspended sediment and
meet the water quality criteria established in Section 4 (above). Any free liquid
-------
flowing from the barge in the harbor shall be passed through a sand media filter or
equivalent filtration system (which must be approved by the project Resident
Engineer) prior to discharge.
12 The Resident Engineer and EM shall be responsible for anticipating the need for and
installation of additional erosion/sediment/turbidity controls and shall have the
authority to require additional control measures to protect the resource areas beyond
what is shown on the plans, if field conditions or professional judgment dictate that
additional protection is necessary.
13. Emergency Response/Spill Prevention Plan: Included in said Plan shall be the contact
responsible for shutting down BMPs discharging to the New Bedford Harbor in the
event of a spill and maintenance practices to be employed to make sure gate valves or
other shut down measures work, appropriately to prevent spills from entering the
adjacent waters.
14. During dewatering, if necessary, the discharge point shall be protected. Water from
dewatering activities shall be filtered via the use of a portable sedimentation tank that
removes suspended solids, temporary sedimentation basins, or other means prior to
discharge.
15. Diesel-powered equipment shall be fitted with after-engine emissions controls such as
oxidation catalysts or particulate filters.
16. Within 30 days of the completion of the initial dredging, a bathymetric, survey of the
dredge footprint, depicting post-dredge conditions, shall be sent to the MADEP SER
Project Manager.
17. Disposal of any volume of dredged material at any location in tidal waters is subject
to approval by the Department and the Massachusetts Coastal Zone Management
office.
18. A baseline condition report detailing existing conditions of all areas proposed to be
transformed to salt marsh shall be submitted to the Department, An annual progress
report shall be produced at the end of each year following construction of the salt
marsh area for a period of five (5) years, and shall be submitted by the EM to the
Department, no later than December 30 of each year. All reports shall be prepared in
the same format so that a comparison can be made from each year to the next. The
first annual report shall be prepared and submitted no later than December 30 of the
first year following the implementation of the salt marsh creation. The existing
conditions report and all annual reports shall include, in textual, tabular and graphic
formats, percent of vegetative cover, a list of plant species, coverage of wetland
plants as a percentage of all plants, and an evaluation of relative plant vigor (i.e.
mortality rate of existing species and number or new species) and any changes
observed in soils or hydrology. Additionally, the report shall include representative
photographs of site conditions and recommendations for improvement. These reports
shall also summarize agency consultations pertaining to the restoration project, the
-------
remedial responses to those problems and appropriate recommendations for future
project.
19. Any changes made to documents submitted shall be immediately forwarded to the
Department for review and comment.
(
MADEP Chapter 91 Waterways Standards:
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Proponent to conform to all terms and conditions herein.
2. All subsequent maintenance dredging and transportation and disposal of this dredge
material, during the term of this Project shall conform to all standards and conditions
applied to the original dredging operation performed under this Project.
3: After completion of the work authorized, the Proponent shall furnish to the
Department a suitable plan showing the depths at mean low water over the area
dredged. Dredging under this Project shall be conducted so as to cause no
unnecessary obstruction of the free passage of vessels, and care shall be taken to
cause no shoaling. If, however, any shoaling is caused, the Proponent shall at his/her
expense, remove the shoal areas. The Proponent shall pay all costs of supervision,
and if at any time the Department deems necessary a survey or surveys of the area
dredged, the Proponent shall pay all costs associated with such work.
4. The Proponent shall, at least three days prior to the commencement of any dredging
in tide water, give written notice to the Department of the time, location, and amount
of the proposed work.
Special Waterways Conditions
1. Dredge material shall be transported to suitable disposal facilities; unregulated
dumping of dredge materials is not permitted.
2. The Proponent shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during dredging activities.
3. The Proponent shall provide and maintain in good working order appropriate United
States Coast Guard (USCG) approved navigation aids to assist mariners in avoiding
work areas as required by the USCG.
4. The Proponent shall maintain vehicular access to water-dependent users throughout
construction activities. As part of the final design plan, the Proponent describes the
means by which the public shall provide reasonable measure to provide on-foot
public passage consistent with the need to avoid undue interference with the water=-
dependent uses of the project.
-------
5. The Proponent shall remove and properly dispose of all temporary structures no later
than three (3) months after completion of the dewatering and amendment of the
sediments. Temporary structures are defined as berms and dikes; lime silo;
dewatering tanks, erosion and sediment control systems, pipes, and siltation curtains.
6. Modification to this Project: the SER PM, may review on an individual basis,
modifications to construction activities and/or temporary structures which represent
and insignificant deviation from original specifications, in terms of configuration,
materials or other relevant design or fabrication parameters as determined by DEP
within all areas of construction. Such review shall be in accordance with the
following procedure:
a. The Proponent shall submit a written request describing the proposed
modifications to the work accompanied by plans, for prior review of the DEP.
The DEP will consider comments submitted within ten (10) days of the DEP's
receipt of the request. The DEP will send any significant modifications to the
Resource Agencies for review and comment and to identify any future
Performance Standards, if necessary. EPA will also have the opportunity to
make a consistency determination if the change is significant, as necessary.
The DEP will notify the Resource Agencies of any minor modifications.
7. After completion of the work authorized the Proponent shall furnish the Department a
suitable plan showing the depths at mean low water over the areas dredged within 90
days of completion if each phase of the dredging. "
-------
Commonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
One Winter Street Boston, MA 02108 • 617-292-5500
DEVAL L PATRICK RICHARO K- SULLIVAN JR.
Governor Secretary
TIMOTHY P. MURRAY KENNETH L KIMMELL
Lieutenant. Governor Commissioner
To: Matt Schweisberg, EPA Region 1
From: Philip Weinberg, MassDEP, Office of Operations and Environmental Compliance
Re: South Terminal ARARs Overview.
Date: February 10, 2012
The South Terminal project is comprehensively described in the,report entitled Enhanced
Remedy in New Bedford, South Terminal, January 18, 2012("SER Report" or "Report"). This
Report supplements and updates the Report previously submitted to EPA on or about August 25,
2010. The project envisions the construction and operation of a marine terminal of
approximately 28 .25 acres within the Designated Port Area of the New Bedford Harbor at a site
north of and proximate to the Harbor's Hurricane Barrier. The project will be subject to three
regulatory programs: Wetlands, 310 CMR 10.00; Waterways, 310 CMR 9.00; and Water
Quality, 314 CMR 9.00. The project's components include:
1. Construction of a 1200 linear foot bulkhead that will fill in approximately 5.49 acres of
shallow, near shore and intertidal habitat and 0.18 acres of salt marsh;
2. Improvement dredging to provide navigational access to the terminal resulting in permanent
impacts of approximately 12.14 acres in near shore, subtidai habitat and 43.38 acres of
temporary impact of which 19.6 acres is maintenance dredging of the Federal Navigation
Project; and
3. Mitigation for impacts to winter flounder, shellfish and salt marsh.
Designated Port Area
All the activities associated with the project lie within a Designated Port Area (DPA), locations
dedicated to marine industrial and commercial purposes.1 The Wetland Regulations at 310
CMR 10.26 establish the performance standards for activities proposed in wetland resource areas
within a DPA. The regulation designates land under the ocean in a DPA as significant to the
wetland interests of marine fisheries, storm damage prevention and flood control, and presumes
A locale is established as a DPA pursuant to the Coastal Zone Management Regulations at 301 CMR 25.00.
This Information is available In alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TOD# 1-866-539-7622 or 1-617-574-6868
-MassDEP Website: www.mass.gov/dep
Printed on Recycled Paper
-------
that such land is not significant to other interests including salt marsh, land containing shellfish,
coastal beaches, and tidal flats. Therefore, the performance standards applicable to those marine
resource areas are not applicable to projects within the DPA absent unique conditions not present
in the site of this DPA. Moreover, impacts to these areas from filling have been compensated for
through mitigation discussed below. ¦ ' , .
Projects in the DPA must be designed and constructed using best practical measures to minimize
adverse effects on: (a) fisheries through changes in water circulation and water quality; and (b)
storm damage prevention or flood control caused by changes in the land's ability to provide
support for adjacent coastal banks or engineering structures. There is nothing unique about the
construction or location of the bulkhead to suggest that it would have an adverse impact on water
circulation which is driven primarily by meteorology and tides in this locale. Dredging and
filling activities may cause temporary impacts to water quality, which is discussed in further
detail below. Similarly, given the bulkhead's location in relation to the hurricane barrier, there is
no reason to conclude that the terminal will have an adverse impact from storm damage or
flooding to the coastal bank, or boat ramp or marine industrial bulkhead located on adjacent
parcels.
Terminal
The South Terminal's bulkhead is to be constructed with sheetpiling and backfilled with 150,000
cubic yards of clean sand generated by navigational dredging projects undertaken in the Harbor.
The bulkhead will infill approximately 5.49 acres of near shore habitat and 0.18 acres of salt
marsh. The intertidal and subtidal areas of the proposed bulkhead are currently contaminated
with lower levels of PCBs. An additional 34,000 cy of clean material generated from
navigational dredging will be used to grade the upland portions of the facility for the wind blade
lay down area and ancillary staging and loading uses.
The Water Quality Regulations at 314 CMR 9.06(1) require an alternative analysis that
demonstrates no practicable alternative to the project will have a less adverse effect on the
aquatic environment. The SER Report sets out the basis for the Department's conclusion that
there is no other practicable location or configuration for the project that will meet its primary
puipose in serving the off-shore renewable energy. The Report satisfies the regulation's
alternative analysis performance standard. Moreover, the regulations provide at 310 CMR
9.06(8) that, notwithstanding the requirement for a Least Environmental Damaging Practical
^/femrf/ve('"LEDPA")-type analysis, the Department may approve a project that will otherwise
improve the natural capacity of wetlands or any water of the Commonwealth. The South
Terminal project will improve the Harbor's and its surrounding habitat's natural capacity in that
it provides (a) a construction-related reuse for CAD generated material, (b) a location capable of
providing future means to store and reuse CAD sediment, and (c) the mechanisms by which the
2
-------
proposed mitigation measures will eliminate exposure of the aquatic environment to PCB
contamination. The terminal also allows the project to comply with the provision of 314 CMR
9.07(l)(e), which compels reuse or recycling of dredged material rather than its disposal.
The regulation at 314 CMR 9.06(2) requires that appropriate and practicable steps be taken to
avoid and minimize potential adverse impacts to land under water or the intertidal zone. The
Department has developed standard protocols to regulate construction activities in shoreline
areas to avoid and minimize adverse impacts to water quality and benthic habitat through the use
of time of year restrictions and best management practices. In regard to the bulkhead, most of the
impacts to the intertidal areas will occur behind the sheet piling. There is nothing unique about
this project that indicates that through site-specific application of these protocols the avoidance
and minimization standard cannot be achieved.
When MassDEP previously determined which MassDEP regulations apply to the project, it was
contemplated that the bulkhead could potentially incorporate anthropogenic, contaminated
dredge spoils. As a consequence, it was determined that the terminal would be regulated as a
Confined Disposal Facility (CDF) pursuant to 314 CMR 9.07(8). In light of the representation
that the bulkhead construction and lay down area grading material will be composed only of
clean sand, the CDF performance standards are no longer relevant. The bulkhead construction
and site grading material may be regulated as the reuse of dredged material under the appropriate'
reuse alternatives set out in 314 CMR 9.07(9)(a) and (b). 314 CMR 9.07(9)(a) allows for the
shoreline placement of dredged material proximate to the dredging activity that lies with a flood
plain and identifies placement of material behind a bulkhead as valid reuse alternative. The SER
report identifies the site ass within the FEMA mapped 100-year flood plain.
The use of clean, dredged sand for the purpose of grading the upland areas of the site is regulated
pursuant to 314 CMR 9.07(9)(b). This provision provides for the placement of dredged material
in an upland area for fill or reuse, provided the concentration of contaminants in the material (1)
do not exceed the S-l applicable at the receiving location, as specified in 310 CMR 40.0975, (2)
is not a hazardous waste, and (3) will not adversely affect a potable water supply. Additional
provisions require that contaminants in the material not be significantly different or greater than
the receiving location's background conditions, the reuse occur in a DP A if practicable, and the
material be appropriately dewatered and otherwise managed in accordance with applicable
regulations at 314 CMR 9.07. The Report's representation that only clean sand would be
employed makes it reasonably likely that the material would not exceed S-l standards or the
background conditions at the proposed reuse locations. Based on historic sampling data and
standard sampling protocols, MassDEP would establish an appropriate construction sampling
methodology to confirm that the material designated for upland reuse met the applicable
compliance standard.
-------
The terminal is also regulated under the Waterways regulations, 310 CMR 9.00. The terminal's
functions classify it as a water dependent-industrial facility under the criteria at 310 CMR 9.12: a
facility related to the construction and storage of marine structures, a marine terminal for transfer
between ship and shore of water-borne goods, and an ancillary activity to offshore renewable
energy infrastructure. As a water dependent facility, the project is presumed to serve a proper
public purpose (310 CMR 9.31). There is nothing in the record to indicate that this project is
displacing an established, reasonably continuous water-dependent use in contravention to 310
CMR 9.36(4). Water dependent industrial structures within the tideland area of a DPA may be
constructed with fill, provided that neither pile supported, nor floating structures are a reasonable
alternative.
The SER Report presents convincing information that the massive weight and pounds per square
inch pressure exerted by the mobile cranes used to unload and stage the turbine components
establish that a pile supported or floating structure are not practicable alternatives to meet the
operational design requirements of the Terminal (See, Sec. 4.3.2). This section incorporates
information previously provided to the Department on May 6,2011 to further analyze the
relationship between the required weight bearing capacity of the terminal and its design. The
Report describes how a typical mobile crane weighing 600 metric tons can, in the course of an
unloading operation, generate in excess of 12,000 psf. Those estimates are consistent with the
load designs of European ports that have supported off-shore wind installations. The vibration
produced as the cranes move from the unloading to the staging area can also severely impact
structures with fixed point load bearing, such as pile supported structures, disrupting the
connection points and causing early failure.
The need for crane mobility and their operating loads require, as a practical necessity, a crushed
stone surface, rather than a concrete operating surface, to prevent the cracking of the concrete
deck due to settlement and wear and tear. To avoid cracking the deck on a pile supported
structure, the project requires an additional three feet of fill that will further increase the load
bearing demands on a pile structure and raise its elevation 7 feet more than the current bulkhead
alignment. A pile supported structure built to cany these loads would require pilings of a
dimension and density that would reasonably preclude navigating or walking under the structure,
thereby virtually eliminating any public access opportunities that a standard pier pile supported
structure might provide, and having sufficient density as to have the effect of being fill in terms
of its effect on marine resources.
These factors combine to preclude reliance on a pile supported structure as a reasonable design
choice. This conclusion is further supported by the Department's records, which indicate that
these cranes weigh 12 times and 6 times more than the cranes at the largest cargo marine
terminals operating in Boston and New Bedford, respectively. Floating structures are also
incompatible with the primary purpose of the terminal, given the foregoing load bearing
-------
constraints and the need for a stable infrastructure to transfer and stage these heavy turbines.
The terminal also meets the Engineering and Construction standards at 310 CMR 9.37.
The site investigation of the upland portion of the terminal site identified that major portions of
the site were underlain at relatively near surface depths with a variety of waste materials. Certain
test pits also showed the presence of hydric soils and invasive plants that can propagate in
anaerobic conditions. The Department does not consider those areas jurisdictional wetlands. In
addition, the SER Report noted that at least one area has been identified as the site of release
regulated under M.G.L. c. 2IE. The Department anticipates that as the project progresses a more
detailed site assessment will be conducted pursuant to Massachusetts Contingency Plan
regulations, 310 CMR 40.000, and the appropriate response actions will be implemented, if
required.
The proposed site development design the Department reviewed in 2010 incorporated a
temporary bridge between two parcels of land that traversed an intertidal salt marsh. The current
design connects those parcels through an entirely different route outside of the intertidal area and
salt marsh. Therefore, the discussion in the Department's August 25th memo on the temporary
impacts associated with the bridge is no longer relevant.
Navigational Dredging
Navigational access to the terminal requires a combination of improvement and maintenance
dredging in excess of 17 acres of intertidal and subtidal areas to between- 20MMLW to -
30MMLW as described and delineated in the SER Report and accompanying Appendix. The
water quality regulations require a "LEDPA'Mype analysis for dredge projects (314 CMR
9.07(l)(a). The SER Report sets out a sufficient rationale for the extent of the proposed
dredging. The rationale is based upon a best information available analysis of the configuration
and number of primary and support vessels that will be required to implement the project,
consistent with the wind turbine facility's transportation and construction predicates. Similar to
the provision discussed earlier in connection the discharge of fill associated with the terminal,
the regulations at 314 CMR 9.07(1)((1) create an exception to the applicability of the alternative
analysis requirement at 314 CMR 9.07(1 )(a) and the other dredging performance standards
where the dredge components of the project will restore or otherwise improve the natural
capacity of the wetland or other waiter of the commonwealth. As noted, we believe various
components of this project will serve such a purpose.
The water quality regulations also require that appropriate and practicable steps be taken to avoid
or, if avoidance is not possible, minimize and thereafter mitigate adverse impacts to land under
water and the intertidal zone. 314 CMR 9.07(l)(a). Dredging performance standards at 314
CMR 9.07(3) reiterate and expand upon the need to avoid and minimize impacts, including a
5
-------
conditional prohibition on dredging within the migration, spawning or juvenile development of
aquatic species. Although this project involves improvement dredging, as compared to the
maintenance dredging conducted under the prior three phases of SER-approved dredge projects,
the performance standards imposed in those previous projects would be equally appropriate and
applicable to the navigational dredging associated with this project. In addition to aligning the
dredging scheduling in regard to the times of the year when resident and migratory species are in
their vulnerable phases of their life cycles, the establishment of mixing zones, the use of silt
curtains and environmental dredge buckets, real time dredge and dewatering related turbidity
monitoring and response plans, and environmental monitors' oversight will act in concert to
satisfy the "avoid and minimize" standard. The Waterways regulations, at 310 CMR 9.40(2) and
(3), impose more explicit dredge performance standards, such as conditionally precluding
dredging between March 15th and June 15th of any year, to avoid interference with fish runs, but
which can be met within the parameters of the scheduling, design and operating conditions
discussed above.
Mitigation for Unavoidable Impacts
The SER Report identifies a matrix of potential mitigation projects within and proximate to the
terminal that replicate or improve the resource areas impacted by the project, including salt
marsh, intertidal and the subtidal areas. The proposed mitigation will result in the creation of
17.73 acres of Winter Flounder spawning habitat, creation/enhancement of 3.47 acres of inter-
tidal area and enhancement of 10.91 acres of near-shore, shallow, sub-tidal areas located in the
outer harbor, immediately southwest of the Hurricane Barrier, creation/enhancement of up to
approximately 1.9 acres of a combination of successional marsh areas (mudflat, low marsh, high
marsh, and transitional area), completion of a Tern Monitoring program to provide additional
information on the utilization of New Bedford Harbor by tems, and a combination of
transplanting and/or seeding of shellfish (however, no shellfish will be transplanted from Fish
Closure Area 1 to areas outside of Fish Closure Area 1). The selection principles applied in
identifying the prospective mitigation measure are consistent with the criteria the Department
applies in reviewing compensatory mitigation measures. The Department has consulted with the
Division of Marine Fisheries who has confirmed that the areas and depths identified for the
creation of flounder habitat are appropriate. The sub-tidal and inter-tidal habitat mitigation area
is proposed at a location that was previously an intertidal area. Thus, it constitutes restoration of
inter-tidal area, is desirable as a mitigation location, and has a high degree of likelihood of
success. The Mass Department of Public Health has confirmed in writing that the shellfish
transfer from the contaminated areas would not meet DPH regulatory requirements because of
the levels of contamination in the shellfish. Therefore, the mitigation proposal was revised to
indicate this restriction, and accordingly satisfy DPH's concerns. The proponent now proposes
as mitigation that shellfish be re-seeded or transplanted from uncontaminated areas. None of the
proposed mitigation will displace an established water dependent use.
6
-------
The concept of capping contaminated areas to improve benthic water quality and, in effect,
r
create improved habitat, as proposed in the OU3 area, is a mitigation approach the Department
recognizes as an acceptable mechanism to redress impacts from hazardous waste remediation
projects, including dredging and filling projects. The salt marsh mitigation area includes an area
of PCB contaminated sediments located within a drainage swale. Further review and analysis
provides persuasive evidence that the PCB contamination in the drainage swale was likely from
discontinued CSO discharges to the area known as OU-3, and therefore would not be likely to
provide future contamination of the restored salt marsh.
There are several prospective mitigation measures that currently lack a financial commitment to
conduct or complete. The Department anticipates that prior to the commencement of the
project's construction, further clarification of the funding and scheduling of the selected
mitigation measures will be documented and implemented. As further details of the dredging
design are formalized, the Department will exercise oversight in the adoption of the final group
of mitigation measures, and review the final designs, engineering controls, monitoring and
contingency plans to ensure that project's impacts to essential fish habitat are adequately
addressed and impacts during the construction period of the project and the selected mitigation
measures are minimized.
7
-------
Commonwealth of Massachusetts
Executive Office of Energy & Environmental
Affairs
department of Environmental protection
fiNR WTMTP.B RTBJiVET RflRTON Mi ftSIOS fil 7.9.fl9..fiRnn
DEVAL L.PATRICK
Governor
IAN A. BOWLES
Secretary
TIMOTHY P. MURRAY
T.ifiiitfinnnf: Onvernnr
LAURIE BURT
August 27, 2010
Matt Schweisberg
U.S. EPA Region 1
5 Post Office Square
Suite 100 ¦
Boston, Ma. 02109
Re: State Enhanced Remedy, New Bedford-South Terminal-MassDEP ARARs review
Dear Mr. Schweisberg:
On August 25,2010, the Massachusetts Department of Environmental Protection submitted the
State Enhanced Remedy in New Bedford, South Terminal report. The report was prepared in
response to EPA's request that it be provided with information sufficient to evaluate the South
Terminal project proposal for substantive compliance with federal environmental statutes, in
particular the Least Environmentally Damaging and Practicable Alternatives ("LEDPA")
analysis of section 404(b)(1) of the Clean Water Act.
The purpose of the attached memorandum is to supplement the SER report's analysis with an
overview of MassDEP's applicable or relevant and appropriate requirements for the South
Terminal project. The conclusion of the memo is that the South Terminal can be constructed and
operated in conformance with the Department's regulations. This conclusion is based on the
information provided in the report as well regulatory compliance protocols developed during the
course of the three prior navigational dredging projects completed under the SER.
If you have any questions or requests regarding the memo, please contact me or Phil Weinberg.
This information Is available in alternate format. Call Donald M. Gomes> ADA Coordinator at 617-556-10S7, TDD# 1-866-539-7622 or 1-617-574-6868.
MassDEPonthe World Wide Web: http://www.mass.gov/cfep
o Printed on Recycled Paper
-------
Sincerely,
Gary Moran, /
deputy Commissioner for
Operations and Environmental Compliance
fi.
James T. Owens, III, EPA, Director, Office of Site Remediation and Restoration
David Dickerson, EPA Remedial Project Manager
Kenneth Kimmell, General Counsel, EOEEA
Deerin Babb-Brott-Assistant Secretary and Director, CZM
Phil Weinberg, Associate Commissioner for OEC, MassDEP
-------
Commonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
ONE WINTER STREET, BOSTON, MA 02108 617-292-5500
DEVAL L. PATRICK •
Governor •
TIMOTHY P. MURRAY
Lieutenant", Gnyernor
To:" Matt Schweisberg, EPA Region 1
From: Philip Weinberg, MassDEP, Office of Operations and Environmental Compliance
Re: South Terminal ARARs Overview
Date: August 27, 2010
The South Terminal project is comprehensively described in the report entitled Enhanced
Remedy in New Bedford, South Terminal, dated August 25, 2010. The project envisions the
construction and operation of a marine terminal of approximately 28 acres within the Designated
Port Area of the New Bedford Harbor at a site north of and proximate to the Harbor's Hurricane
Barrier. The project will be primarily subject to three regulatory programs: Wetlands, 310 CMR
10.00; Waterways, 310 CMR 9.00; and Water Quality, 314 CMR 9.00. As set forth below, the
Department has concluded that the project will comply with the substantive requirements of each
of these three regulatory programs.
The project's components include:
1. Construction of a 1200 linear foot bulkhead that will fill in approximately 6.34 acres of
shallow, near shore arid intertidal habitat and . 18 acres of salt marsh;
2. Improvement dredging of approximately 11 acres in near shore, subtidal habitat to provide
navigational access to the terminal; and 6.39 acres of maintenance dredging in deeper subtidal
areas to facilitate navigational transit through the Harbor; and
3. Construction of a temporary, pile supported bridge spanning an intertidal area within the
buffer zone of a salt marsh.
Designated Port Area
IAN A. BOWLES
Secretary
LAURIE BURT
This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD# 1-866-539-7622 or 1-617-574-6868.
MassDEP on the World Wide Web: http://www.mass.gov/dep
v Printed on Recycled Paper
-------
All the activities associated with the project occur within a Designated Port Area (DPA),
locations dedicated to marine industrial and commercial purposes.1 The Wetland Regulations at
310 CMR 10.26 establish the performance standards for activities proposed in wetland resource
areas within a DPA. The regulation designates land under the ocean in DPA as significant to the
wetland interests of marine fisheries, storm damage prevention and flood control, and presumes
that such land is not significant to other interests and therefore the usual performance standards
do not apply for resources areas including salt marsh, land containing shellfish, coastal beaches,
and tidal flats. Projects in DPA must be designed and constructed using best practical measures
to minimize adverse effects on: (a) fisheries through changes in water circulation and water
quality; and (b) storm damage prevention or flood control caused by changes in the land's ability
to provide support for adjacent coastal banks or engineering structures. The Department
concludes that the project does minimize adverse effects on fisheries and storm damage
prevention. Based on the project's design and location on the coast, the Department does not
expect an adverse effect on water circulation. Similarly, the Department does not expect that the
terminal will have an adverse impact from storm damage or flooding to the coastal bank or the
boat ramp or marine industrial bulkhead located on adjacent parcels. There may be temporary
impacts to water quality associated with the dredging, which is discussed in further detail below.
Terminal
The South Terminal's bulkhead is to be constructed with sheetpiling and backfilled with dredged
sediment, predominantly clean sand generated in developing the Confined Aquatic Disposal
(GAD) units to manage the PCB contaminated sediments dredged in the course of on-going
remedial activities or navigational dredging projects undertaken in the Harbor. The bulkhead
will infill approximately 6.3 acres of near shore habitat and .18 acres of salt marsh. The intertidal
and subtidal areas the bulkhead will occupy are currently contaminated with lower levels of
PGBs.
The Water Quality Regulations at 314 CMR 9.06(1) require an alternative analysis that
demonstrates there is no practicable alternative to the project that will have a less adverse effect
on the aquatic environment. The State Enhanced Remedy report sets out the basis for the
Department's conclusion that there is no other practicable location or configuration for the
project that will meet its primary purpose in serving the off-shore renewable energy. The report
satisfies the regulation's alternative analysis performance standard. Moreover, the regulations
provide at 314 CMR 9.06(8) that notwithstanding the requirement for a "LEDPA"-type analysis,
the Department may approve a project that will otherwise improve the natural capacity of
wetlands or any water of the Commonwealth. In providing a construction-related reuse for CAD
generated material, a location capable of providing future means to store and reuse CAD
sediment, and in the mechanisms by which the proposed mitigation measures will eliminate
1A locale is established as a DPA pursuant to the Coastal Zone Management Regulations at 301 CMR 25.00.
2
-------
exposure of the aquatic environment to PCB contamination, the South Terminal will contribute
toward improving the Harbor's and its surrounding habitat's natural capacity. The terminal also
allows the project to comply with the provision of 314 CMR 9.07(l)(e) which compels reuse or
recycling of dredged material rather than its disposal.
The regulation at 314 CMR 9.06(2) requires that appropriate and practicable steps be taken that
will avoid and minimize potential adverse impacts to land under water or the intertidal zone.
The Department has developed standard protocols to regulate construction activities in shorelines
areas that ensure that through time of year restrictions and best management practices adverse
impacts to water quality and benthic habitat are avoided or minimized. In regard to the
bulkhead, most of the impacts will occur behind the,sheet piling. The Department believes that
the avoidance and minimization standard can be achieved with the use of appropriate BMPS
during the placement of fill behind the sheet pile bulkhead which will contain sediment.
The terminal constitutes a Confined Disposal Facility (CDF) regulated under 314 CMR 9.07(8).
The terminal meets the siting criteria as it is not located near a sensitive receptor, would not
cause an unacceptable traffic risk, will not have an adverse effect on a state listed rare or
endangered species, as confirmed by the letter from the Natural Heritage Endangered Species
Program, or create an unacceptable risk from operating emissions. The surface of the terminal is
designed to be crushed stone which due to its permeability should reduce stormwater
management concerns, and the terminal will be required to meet the stormwater performance
standards to prevent erosion, reduce the discharge of pollutants and control run-off from a 24
hour, 25 year storm. 314 CMR 9.07(8)(d), as well as develop operating and maintenance plans
to address spill prevention and control. Parking or lay down areas with impermeable surfaces
will also be required to meet these standards, but overall the site's configuration should not
present difficulty in demonstrating compliance.
The regulations do provide, however, that the final cover system minimize percolation of water
and be designed and constructed to remain impervious over the life of the facility. The
assumption behind these performance standards is that the material to be confined is sediment
that is unsuitable for ocean disposal and contaminated to an extent necessary to prevent human
exposure and leachate migration. In contrast, the terminal is proposed to take clean CAD sand
for its structural backfill. Through the implementation of a sampling plan, the contaminant levels
of the sediment can be verified to present no significant risk to the public health and environment
as a result of the design or operation of the facility. Verification that the sediment that will be
placed is free of significant contamination may obviate the need to meet the specific design
criteria. Absent this verification, other engineering design criteria for cap, drain and final cover
systems that meet the project's design criteria of having a crushed stone surface that can
accommodate the mass and operating characteristics of the moveable cranes will need further
consideration. The Department commits to reviewing the final design to ensure the underlying
performance standard of preventing migration of contaminated material is met.
3
-------
The terminal also proposes to use up to 50,000 cubic yards of clean CAD sand for upland site
grading. This activity, as well as bulkhead backfilling utilizing clean sand, qualifies as shoreline
placement and upland material reuse allowed in accordance with 314 CMR 9.07(9) as reuse of
sediment within a DPA. As noted above, a sampling regime will be instituted to ensure the
sediment meets the applicable contaminant limits.
The terminal is also regulated under the Waterways regulations, 310 CMR 9.00. The terminal's
functions classify it as a water dependent-industrial facility under the criteria at 310 CMR 9.12: a
facility related to the construction and storage of marine structures, a marine terminal for transfer
between ship and shore of water-borne goods, and an ancillary activity to offshore renewable
energy infrastructure. As a water dependent facility, the project is presumed to a serve a proper
public purpose (310 CMR 9.31). Water dependent industrial structures within the tideland area
of a DPA may be constructed with fill, provided that neither pile supported nor floating
structures are a reasonable alternative. The SER report presents convincing information that the
massive weight (600 tons) and resulting 4000 pounds s.f. of the mobile cranes establish the
practical necessity of a crushed stone rather than a concrete operating surface. These two factors
combine to preclude reliance on a pile supported structure as a reasonable design choice. This
conclusion is further supported by the Department's records which indicate that these cranes
weigh 12 times and 6 times more than the cranes at the largest cargo marine terminals operating
in Boston or New Bedford respectively. For the same reasons as well as for the necessity of
stability in transferring and staging the turbines, floating structures are also incompatible with the
primary purpose of the terminal. The terminal also meets the Engineering and Construction
standards at 310 CMR 9.37
The site investigation of the upland portion of the terminal site identified that major portions of
the site were underlain at relatively near surface depths with a variety of waste materials. Certain
test pits also showed the presence of hydric soils and invasive plants that can propagate in
anaerobic conditions. The Department does not consider those areas jurisdictional wetlands. In
addition, the SER report noted that at least one area has been identified as the site of release
regulated under M.G.L. c. 2IE. The Department anticipates that as the project progresses a more
detailed site assessment will'be conducted pursuant to Massachusetts Contingency Plan
regulations, 310 CMR 40.000, and the appropriate response actions will be implemented, if
required.
Temporary Land Bridge
In order to accommodate additional storage for wind turbine components, the project proposes to
construct a temporary bridge connecting two parcels within the site. The bridge will span an
intertidal area and require up to ten, 30" diameter pilings for load bearing support. The Wetland
4
-------
Regulations at 310 CMR 10.32(3) prohibits any project within a salt marsh or on lands within
100' of a salt marsh from destroying or having an adverse affect on the productivity of the salt
marsh. The bridge is within the 100' buffer zone. There is no basis to conclude that the location
of the bridge outside of the marsh would adversely impact salt marsh productivity as it would not
impede or interfere with the tidal movement and is designed to minimize shading. Moreover, in
the application of the performance standard, the regulations establish an exception for small
projects within the niarsh, such as an elevated walkway or other structure that has no other
adverse impact than blocking light exposure to the underlying vegetation for a portion of the day.
310 CMR 10.32(4). Were it required for the Department to invoke this exception (which it is
not), the project's proposal meets the exception's performance standard.
Navigational Dredging
Navigational access to the terminal requires a combination of improvement and maintenance
dredging in excess of 17 acres of intertidal and subtidal areas to between- 20MMLW to -
30MMLW as described and delineated in the SER report and accompanying Appendix. The
water quality regulations require a "LEDPA"-type analysis for dredge projects. 314 CMR
9.07(l )(a). The SER report sets out a persuasive rationale for the extent of the proposed
dredging based upon a best information available analysis of the configuration and number of
primary and support vessels that will be required to implement the project consistent with the
wind turbine facility's transportation and construction predicates. Similar to the provision
discussed earlier in connection with the terminal, the regulations at 3.14 CMR 9.07(1)(1) creates
an exception to the applicability of alternative analysis requirement and other performance
standards where the project will restore or otherwise improve the natural capacity of the wetland
or other water of the commonwealth. As noted, we believe various components of this project
will serve such a. purpose.
The water quality regulations also require that appropriate and practicable steps be taken to avoid
or, if avoidance is not possible, to minimize and thereafter mitigate adverse impacts to land
under water and the intertidal zone. 314 CMR 9.07(l)(a). Dredging performance standards at
314 CMR 9.07(3)reiterate and expand upon the requirement to avoid and minimize impacts
including a conditional prohibition on dredging within the migration, spawning or juvenile
development of aquatic species. Although this project involves improvement dredging as
compared to the maintenance dredging conducted under prior three phases of SER-approved
dredge projects, the performance standards imposed in those latter projects would be equally
appropriate and applicable to the navigational dredging associated with the project. In addition
to aligning the dredging scheduling in regard to the times of the year when resident and
migratory species are in their vulnerable phases of their life cycles, the establishment of mixing
zones, the use'of silt curtains and environmental dredge buckets, real time dredge and
dewatering related turbidity monitoring and response plans, and environmental monitors'
5
-------
oversight will act in concert to achieve the avoid and minimize standard. The Waterways
regulations, at 310 CMR 9.40(2) and (3), imposes more explicit dredge performance standards,
such as conditionally precluding dredging between March 15 th and June 15th of any year in order
to avoid interference with fish runs, but which can be met within the parameters of the
scheduling, design and operating conditions discussed above.
Mitigation for Unavoidable Impacts
The SER report identifies a matrix of potential mitigation projects within and proximate to the
terminal that replicate or improve the resource areas impacted by the project, including salt
marsh, intertidal and the subtidal areas. The selection principles applied in identifying the
prospective mitigation measure are consistent with the criteria the Department applies in
reviewing compensatory mitigation measures. The concept of capping contaminated areas to
improve benthic water quality and, in effect,create improved habitat as proposed in the OU3
area is a mitigation approach the Department recognizes as an acceptable mechanism to redress
impacts from hazardous waste remediation projects and those involving dredging and fill within
locations containing contaminated sediments.
There are several prospective mitigation measures that currently lack a financial commitment to
conduct or complete. The Department anticipates that prior to the commencement of the
project's construction, further clarification of the funding and scheduling of the selected
mitigation measures will be documented and implemented. As further details of the dredging
design are formalized, the Department will exercise oversight in the adoption of the final group
of mitigation measures, and review the final designs, engineering controls, monitoring and
contingency plans to ensure that project's impacts to essential fish habitat are adequately
addressed and impacts during the construction period of the project and the selected mitigation
measures are minimized.
6
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix E
Determination of Compliance-
Section 404 of the Clean Water Act (33 U.S.C. §1344)
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403)
Wetland Executive Order 11990
j
-------
EPA Draft Determination for the Proposed South Terminal Appendix E
New Bedford Harbor State Enhanced Remedy
ENVIRONMENTAL PROTECTION AGENCY
REGION I
SOUTH TERMINAL PROJECT, NEW BEDFORD HARBOR
DRAFT DETERMINATION OF COMPLIANCE WITH
SECTION 404 OF THE CLEAN WATER ACT
AND
SECTION 10 OF THE RIVERS AND HARBORS ACT OF 1899
PROJECT PROPONENT: Commonwealth of Massachusetts
WATERWAY: New Bedford Harbor
1.0: Authority: This document constitutes EPA Region I's (the "Region") draft evaluation and
compliance; determination for the State Enhanced Remedy, New Bedford Harbor - South
Terminal project proposed by the Commonwealth of Massachusetts. This draft determination
proposes to find compliance with Section 404 of the Clean Water Act (33 U.S.C § 1344) and
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403), subject to the proposed
conditions set forth herein.
1.1: Clean Water Act: Under Section 404 of the Clean Water Act, discharges of
dredged or fill material into waters of the U.S. are prohibited except in compliance with the
requirements of the § 404(b)(1) guidelines, which are set forth at 40 C.F.R. Part 230. Four of the
key guidelines provisions are as follows:
Section 230.10(a) prohibits discharges into wetlands and other waters if there is a practicable
alternative to the proposed discharge which would, have less adverse impact on the aquatic
ecosystem (as long as the alternative does not have other significant adverse environmental
consequences).
Section 230.10(b) prohibits discharges which would cause or contribute to violations of state
water quality standards; violate toxic effluent standards under § 307 of the Clean Water Act;
jeopardize the continued existence of an endangered or threatened species, or result in the
likelihood of the destruction or adverse modification of such species' critical habitat; or violate
requirements of marine sanctuary designations.
Section 230.10(c) prohibits discharges which would cause or contribute to significant
degradation of waters of the U.S. Significant degradation may include individual or cumulative
impacts to human health and welfare; fish and wildlife; ecosystem diversity, productivity and
1
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
stability; and recreational, aesthetic or economic values.
Section 230.10(d) prohibits discharges unless all appropriate and practicable steps have been
taken to minimize potential adverse impacts of the discharge on the aquatic ecosystem.
Compensatory mitigation for unavoidable impacts to the aquatic ecosystem must satisfy the
requirements of 40 C.F.R. §§ 230.91-230.98.
1.2: Rivers and Harbors Act of 1899: The obstruction or alteration (including
dredging) of any navigable water of the United States is prohibited except as authorized after a
finding that the activity in not contrary to the public interest and otherwise complies with
applicable federal laws, pursuant to 33 C.F.R. Part 320.
2.0 Proposed Project
2.1 Project Description: The Commonwealth of Massachusetts proposes the
development of an approximately 28-acre marine terminal capable of supporting offshore
renewable energy development and other future uses. The facility would also provide a site for
the disposal of navigational dredged material associated with the State Enhanced Remedy
("SER") during construction of the facility, and would support staging of additional dredged
material for beneficial reuse during operation of the facility. The facility would be located at the
South Terminal area in lower New Bedford Harbor. The proposal is described in detail in the
document entitled State Enhanced Remedy in New Bedford, South Terminal and its appendices,
dated January 18, 2012 and submitted by the Massachusetts Department of Environmental
Protection ("MassDEP") on behalf of the Commonwealth (hereafter referred to as MassDEP
2012). The Commonwealth has updated and supplemented its January 18, 2012 submission .
with 4 additional submissions (including attachments), dated June 18, 2012 (hereafter MassDEP
2012a), June 29, 2012 (hereafter MassDEP 2012b), July 11, 2012 (hereafter MassDEP 2012c)
and July 12, 2012 (hereafter MassDEP 2012d). The relationship between the proposal to
construct a marine terminal and the SER is discussed more fully in EPA's July 16, 2012 Draft
Determination for the South Terminal Project.
The project's components include:
1. Installation of a 1200 linear foot bulkhead in the Harbor, and placement of
approximately 142,000 cubic yards of dredged material (clean sand) behind the bulkhead,
resulting in the filling of intertidal habitat, shallow, near-shore sub-tidal habitat, and salt marsh.
This filled structure, referred to as a confined disposal facility ("CDF"), will be adjacent to
approximately 21.4 acres of upland that, together with the filled structure, will comprise the
terminal facility;
2. Dredging of shallow, near-shore, sub-tidal habitat and deeper sub-tidal habitat to
provide navigational access to and berthing at the terminal; to realign the Gifford Street Boat
Ramp Channerand create new mooring areas (to mitigate impacts to recreational users from the
2
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
South Terminal dredging); and to conduct maintenance dredging in the Federal Navigation
Project channel and turning basin: and
3. Dredging of shallow, near-shore, sub-tidal habitat to create a confined aquatic.disposal
("CAD") cell, identified as "CAD Cell 3," which will then be filled with contaminated dredged
material from the above-described navigational dredging.
'4. Disposal of contaminated dredged material from the above-described navigational
dredging into CAD Cell 3 and existing CAD cell 2, and disposal of clean dredged material to cap
existing CAD Cell 1 and the "Borrow Pit."
5. Compensatory mitigation to address impacts to wetlands, intertidal habitat, subtidal
habitat, and shellfish resources. . -
2.2 Summary of Estimated Areal Impacts in Federally Regulated Waters
Permanent Impacts
For areas to be fully or partially filled for construction of the CDF:
Freshwater wetlands
Intertidal area:
Shallow, near-shore sub-tidal area:
Salt marsh:
0.10 acres'
1.94 acres
4.73 acres
0.18 acres2
Total:
6.95 acres
For areas to be dredged:
Shallow, near-shore sub-tidal area (to be dredged from between
-1 and -13 MLLW to -14 MLLW)(Quayside Areas and Tug Channel):
8.46 acres
1 In addition, there is a 0.4 acre freshwater wetland on one of the properties that may become incorporated into the
terminal site, in which event it too would be filled. See section 4.3.7.
2 This area was delineated during the June 28, 2012 site investigation, and a report submitted to EPA on July 11,
2012. Due to the late date of the submission of this report, EPA has not had adequate time to complete its review
and confirm revised areal estimates of the salt marsh areas and impacts. For purposes of this analysis we are
assuming the 0.18 acre impact that the Commonwealth has previously identified in prior submissions and will be
evaluating this further before makinga final decision on the project.
3
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Shallow, near-shore sub-tidal area (to be dredged from between
-1 and -6 MLLW to -30 to -32 MLLW)(Quayside Areas):
Total:
7.02 acres
3
15.48 acres
Total Permanent Impacts:
22.43 acres
Temporary Impacts Associated with Dredging
Shallow, near-shore sub-tidal area (to be dredged from between
-4 and -6 MLLW to -6 to -7 MLLW)(Gifford Street Mooring Basin
and Channel):
6.17 acres
Shallow, near-shore sub-tidal area (to be dredged from between
-4 and -6 MLLW to -45 MLLW)(CAD Cell):
8.76 acres
Deeper, sub-tidal area (to be dredged from between -20 to -25
MLLW to -30 MLLW)(South Terminal Channel): 8.29 acres.5
Deeper, sub-tidal area (to be dredged from between -26 to -30
MLLW to -30 MLLW)(Maintenance Dredging of Federal Navigation
Project): .15 acres6
Total:
38.22 acres
This figure represents 3.68 acres that will definitely be dredged, and an additional 3.34 acres that are associated
with a potential extension of the deep-draft quayside dredging area to the south and potential additional widening of
the deep-draft channel. See MassDEP 2012a at pp. 2-4 and 9.
4 This figure represents 6.3 acres that will definitely be dredged, and an additional 2.46 acres that would be dredged
to accommodate additional excavate from the potential expansion of the deep-draft draft quayside dredging area and
potential additional widening of the deep-draft channel. See MassDEP 2012b, pp. 3-4.
5 This figure represents 7.01 acres that will definitely be dredged, and an additional 1.28 acres that are associated
with a potential extension of the deep-draft quayside dredging area to the north. See MassDEP 2012a at pp. 3 and
10-
6 Some or all of this dredging may not need to occur, depending on the draft of the vessels to be used at the site, so
inclusion of this figure is a worst case scenario. See MassDEP 2012a at pp. 2-3, 4-5, and 10.
4
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Temporary Impacts Associated with CAD Cell Filling and Capping
Capping Borrow Pit and CAD 1 with clean dredged material and
disposal of contaminated dredged material into CAD cell 2 10.8 acres
. •
2.3 Location: The project site is located adjacent to New Bedford Harbor in New
Bedford, Massachusetts, immediately to the south of the existing South Terminal facility. A
Site Locus Map is included as Figure 1 in MassDEP 2012. The latitude of this site is
41.622936. The longitude of this site is 70.915271. The site is located within the Cape Cod
Watershed. The Hydrologic Unit Code for this site is,01090002.
2.4 Scope of Analysis: This CWA § 404 and RHA § 10 evaluation considers the effects
on waters of the United States associated with the discharge of dredged and fill material into the
CDF; the dredging to accommodate access to and berthing at the terminal and for the Gifford
Street channel and mooring areas; the maintenance dredging of the Federal Navigation Project;
and the dredging and filling associated with the CAD cells.
This evaluation does not consider the impacts associated with the offshore disposal of the
material excavated from CAD Cell 3. Those impacts have been evaluated by the U.S. Army
Corps of Engineers, which, on November 4 and 15, 2011, authorized the disposal of
approximately 750,000 cubic yards of clean dredged sediments excavated from CAD Cell 3 at
either the Cape Cod Bay Disposal Site or the Rhode Island Sound Disposal Site (both EPA
Designated Ocean Disposal Sites).
2.5 Site Description: New Bedford Harbor is located on the northern shore of the
Buzzards Bay and borders the communities of Fairhaven to the east, and New Bedford to the
west. The New Bedford Hurricane Barrier seawall and floodgates (immediately south of Palmer
Island) demarcates the outer harbor from the inner harbor and there is also a federal navigation
channel which leads into the inner harbor. The Acushnet River flows into the northernmost part
of the upper estuary and is the most significant freshwater inflow into the harbor. The inner
harbor contains several marinas, a recreational fleet, historical attractions, commercial fishing
fleets, and fish processing/cold storage facilities. Land usage along the shore is a mixture of
residential, commercial and industrial uses.
New Bedford Harbor is highly contaminated with polychlorinated biphenyls (PCBs) and heavy
metals from manufacturing discharges that occurred from 1940 to the late 1970s. The harbor
sediments are contaminated in varying degrees from the upper Acushnet River into Buzzards
Bay. Bioaccumulation of PCBs within the marine food chain has resulted in closing the area to
5
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
lobstering and fishing, and recreational activities and harbor development have been limited by
the widespread PCB problem. The source of the contamination has been attributed to two
electrical capacitor manufacturing facilities that operated between the 1940s and 1970s. One
facility, Aerovox Corporation was located near the northern boundary of the site and the other
facility, Cornell-Dubilier Electronics, Inc. is located just south of the New Bedford Hurricane
Barrier. Based on the health concerns of the site, the Environmental Protection Agency (EPA)
added the site to the National Priorities List in 1983 as£ designated Superfund Site. EPA's
selected remedy involves sediment removal by dredging and the containment of contaminated
sediments. Full scale dredging began in 2004 and to date approximately 225,000 cubic yards of
contaminated sediments have been remediated.
The upland portion of the project site is underlain by urban fill. The majority of the land that
will be incorporated into the proposed terminal was once the site of a former mill complex. The
mill was demolished in the 1930's. Currently, the land that covers the former mill complex
contains areas of hummocky terrain typically indicative of remnant rubble or debris in the
subsurface, and portions of the site (particularly the central, northern, and western portions)
contain broken pieces of brick and mortar at or just below the ground surface. The
Commonwealth has identified three areas on the upland portion of the site that require
remediation to address PCB and petroleum-related contamination. One of these areas, southwest
of the existing bulkhead extension, is a paved area associated with a release under 310 CMR
40.0000 (the Massachusetts Contingency Plan); the remedy for the release is an asphalt cap.
There is also one 0.1 acre wetland pocket located on the upland portion of the site.
3.0 Aquatic Resource Functions and Values
3.1 Fresh Water Resources: A site investigation to characterize freshwater resources
was conducted on June 28, 2012, and a report submitted to EPA on July 11, 2012. According to
the report, fresh water resources are very limited at the project location, comprised of one small
vegetated wetland located north of the existing paved area on parcel 49, approximately 4,600
square feet (0.1 acres) in area.7 This disturbed wetland has formed in a depressional area within
the existing fill on site. Evidence of hydrology supporting this wetland is present. Soils consist
of significantly disturbed urban fill. While no sampling data has been provided characterizing
soils within this wetland, soil sampling conducted in the general vicinity of the wetland indicates
that the wetland soils are likely to be contaminated with PCBs and metals (MassDEP 2012,
Appendix 39, Table 1). Wetland vegetation consists primarily of Phragmites australis (common
reed), an invasive species.
7 The Commonwealth characterized this wetland as "isolated" and therefore not subject to federal jurisdiction.
However, given that it is merely 153 feet from the high tide line the harbor, EPA believes this it is adjacent to (i.e.,
neighboring) a traditional navigable water and therefore subject to CWA jurisdiction.
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Functions and values associated with this wetland include groundwater recharge/discharge,
floodflow alteration, sediment/toxicant retention, and wildlife habitat. However, these wetland
functions and values are limited due to the small size and degraded nature of the wetland system
and the surrounding landscape.
3.2 Salt Water resources
3.2.1 Water Quality Classification: The South Terminal Project will be
constructed in the New Bedford Inner Harbor. This water body is classified as "SB," with .
qualifiers noted in the Massachusetts Water Quality Standards for shellfishing (314 C.M.R. Part
4.00).8
The SB classified waters are coastal and marine waters that are designated as habitat for fish,
other aquatic life and wildlife, including for their reproduction, migration, growth and other
critical functions, and for primary and secondary contact recreation. The "shellfishing" qualifier
indicates that New Bedford Inner Harbor is also designated for shellfish harvesting with
depuration.
The New Bedford Inner Harbor (MA95-42) is listed as an impaired water on Massachusetts'
2010 Clean Water Act § 303(d) list, http://www.mass.gov/dep/water/resources/101ist3.pdf. The
pollutants associated with the impairments are listed as priority organics, metals, nutrients,
organic enrichment/low dissolved oxygen, fecal coliform, oil and grease, taste, odor and color,
and objectionable deposits.
Twelve water column samples collected in December 2010 from four locations (at three different
depths) in the vicinity of the South Terminal project area, confirm levels of pollutants above
Massachusetts water quality criteria. Specifically, PCBs, bis(2-ethylhexyl)phthalate, copper, and
lead concentrations exceeded Massachusetts water quality standards.
3.2.2 Tidal Wetlands, Finflsh, Shellfish, Benthic Community:
Wetlands: Federally jurisdictional tidal wetlands at the project location consist of an emergent
salt marsh system, situated directly within and adjacent to the proposed location of the CDF.
This area was delineated during the June 28, 2012 site investigation, and a report submitted to
8 The Massachusetts Water Quality Standards also list New Bedford Inner Harbor with a "CSO" qualifier, indicating
that the water body has been impacted by the discharge of combined sewer overflow (CSO) (314 CMR
4.06(l)(d)(I0). The City of New Bedford has a long term CSO control plan and has been working to reduce CSO
discharges through wastewater collection system improvement projects.
7
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
EPA on July 11, 2012. Due to the late date of the submission of this report, EPA has not had
adequate time to complete its review and confirm revised areal estimates of the salt marsh areas,
including a newly identified south salt marsh area (Salt Marsh 2). Areal estimates in the recent
report indicate a smaller area of salt marsh present at Salt Marsh 1 than had been previously
described by the Commonwealth. For the purposes of the draft determination, the previously
submitted estimate of the areal extent of Salt Marsh 1 is being used for assessment of impacts,
combined with the areal estimate for the newly identified Salt Marsh 2 presented in the July 11,
2012 report. Areal estimates will be revised after EPA has completed review and confirmation
of the new wetland delineation. For the purposes of the draft determination, the salt marsh
resources present are estimated to be approximately 1.06 acres in area. Soil sampling indicates
that the wetland soils are contaminated with PCBs and metals (MassDEP 2012, Appendix 36,
Tables 2A and 2E). Wetland vegetation present includes Spartina alternaflora, and trace
amounts of Salicornia virginiana.
Functions and values associated with this system include groundwater discharge, flood flow
alteration, fish and shellfish habitat, shoreline stabilization, and wildlife habitat.
Other federally jurisdictional resource areas that will be impacted by the proposed project
include intertidal and subtidal aquatic habitats, which provide critical habitat supporting the life
cycles of numerous species, as described below.
Finfish: The finfish community of inner New Bedford Harbor is generally reflective of the
greater Buzzards Bay system. Fish use this system both as year round residents and as seasonal
transients. The most common or dominant species found in Buzzards Bay are listed in Table 3A
below.
Table 3A: Dominant finfish species of Buzzards Bay (Howes and Goehringer, 1996)
Residents
Non-residents
Common name
Scientific name
Common name
Scientific name
Sheepshead minnow
Cyprinidon variegus
Alewife
Alosa
pse udoharengus
Atlantic herring
Clupea harengus
Blueback herring
Alosa aestivalis
Winter flounder
Pseudopleuronectes
americanus
Atlantic menhaden
Brevoortia tyrannus
Mummichog
Fundulus
heteroclitus
Tautog
Tautoga onitis
8
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Striped killifish
Fundulus majalis
Black sea bass
Centropristis striata
Four-spined
stickleback
Apeltes quadracus
Bluefish
Pomatomus saltatrix
scup
Stenotomus
chrysops
Butterfish
Peprilus triacanthus
Atlantic silverside
Menidia menidia
Striped bass
Morone saatilis
As part of a Draft Environmental Impact Report ("DEIR"), Massachusetts Coastal Zone
Management (MACZM) conducted finfish sampling in New Bedford Inner Harbor for a 12
month period between 1998 and 1999 (MACZM, 1999). Fish were collected in near shore
locations in 50 foot beach seines with 3/16th inch mesh. Trawl sampling was also conducted
with a 30 foot otter trawl with 2 inch stretch mesh in the body and a 1 inch stretch mesh in the
cod end. Multiple stations were sampled from Popes Island south to the hurricane barrier.
Results of the beach seine showed that Atlantic silversides was the most abundant species
present comprising almost 44% of the catch (Table 3B). Striped killifish, cunner, mummichog
and winter flounder all represented significant percentages of the catch (Table 3B). "Other
species" comprised about 18% of the catch these included black sea bass, northern puffer,
northern kingfish, bluefish, Atlantic menhaden, and a handful of other species that may be only
represented by 1 or 2 individuals.
Table 3B: Percent of fish caught in beach seine samples from New Bedford Harbor from
June 1998 to May 1999 (MACZM, 1999)
' Species
Percent of total catch
Atlantic silverside
43.6
Striped killifish
. 16.0
Cunner
7.5
Mummichog
8.7
Winter flounder
6.3
Other species
17.9.
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Trawl sampling was conducted utilizing a 400 meter, tow length and was conducted over a depth
range of 6.5 to 33 feet. As expected, the results of the trawl survey reflected a slightly different
composition of species mix than the beach seines. Scup was the dominant species taken
comprising almost a quarter of the catch (Table 3C). Cunner comprised 20.8% of the catch,
while winter flounder, black sea bass and northern pipefish also represented a significant portion
of the total (Table 3C). "Other species" represented 28.2% of the catch and consisted of Atlantic
herring, Atlantic silversides, bay anchovy, butterfish, seaboard goby, windowpane flounder and
murnmichog.
Table 3C: Percent of fish caught in trawl samples from New Bedford Harbor from June
1998 to May 1999 (MACZM, 1999)
Species
Percent of total catch
Scup
23.4
Cunner
20.8
Winter flounder
12.5
Black sea bass
9.1
Northern pipefish
6.0
Other species
28.2
Diadromous fish activity. Diadromous fish are species that.regularly move between fresh and salt
water. Four species of anadromous (species that live in salt water, but breed in freshwater) fish
are known to inhabit Buzzards Bay. These are American shad, blueback herring, rainbow smelt -
and alewife (Howes and Goehringer, 1996). MACZM sampling in 1998-1999 found alewife in.
the fall sampling, and rainbow smelt in the spring and the summer (MACZM, 1999). White
perch was collected in the spring, while blueback herring and American shad were not observed
during the sampling (MACZM, 1999).
Endangered species: The National Marine Fisheries Service recently listed the Atlantic sturgeon
(Acipenser oxyrinchus oxyrincus) as an endangered species. On June 19, 2012, NMFS wrote to
EPA advising that because Atlantic sturgeon undertake large-scale marine migrations and will
forage anywhere any available habitat exists, this species may be present in the vicinity of New
Bedford Harbor. EPA is currently seeking additional technical assistance from NMFS and is in
pre-consultation analysis with it to determine the potential for adverse effects to the species and
measures to avoid or minimize such effects.
10
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Benthos'. The term benthos refers to organisms that live in or on the seaflodr. A wide suite of
invertebrates reside within the sediments and collectively are known as infauna. A lesser
number of invertebrates live on the seafloor and are generally known as epifauna. In addition to
those two classes of organisms, shellfish will be discussed as a separate category due to their
commercial importance.
Benthic infauna: New Bedford has a long history as being an industrial port and this history is
reflected in the high concentrations of a wide suite of chemicals in the sediments of New
Bedford Inner Harbor. The chemical quality of the sediments has had a direct and indirect effect
on the benthic infaunal community in this system. In some locations, high sediment
concentrations of pollutants may preclude the presence of some sensitive species. Indirect
effects include adverse effects from extensive dredging in some areas due to the need to
remediate the sediments, and beneficial effects from the complete lack of disturbance in other
areas because the taking of shellfish has been banned.
Sampling sponsored by MACZM in 1999 was conducted in New Bedford Inner Harbor to
characterize the general condition of the benthic community. The survey utilized the
REMOTS® sediment-profile imaging system. This system generates a vertical cross section of
the seafloor to a depth of about 20 cm. Biological condition inferences can be reasonably drawn
from the images produced by this system. This system has been extensively used all over the
world.
This survey showed, in general, that much of the benthic infaunal community in New Bedford
Inner Harbor is comprised of a variety of small opportunistic polychaete worm species, such as
Streblospio benedicti and Mediomastus ambiseta (MACZM, 1999). These species are shallow
burrowers and tend to be indicative of frequently disturbed or stressed habitats. The survey did
find areas that possessed not only these small polychaetes, but larger worms, such as Nephtys
incisa and Nereis virens and large quantities of shellfish. The details of the shellfish resource
will be discussed in a separate section below.
Benthic epifauna: Very little if any directed study of the benthic epifaunal community in New
Bedford Inner Harbor exists. It is reasonable to assume that the normal assemblage of benthic
epifaunal species that are common in Buzzards Bay likely occur within New Bedford Inner
. Harbor. Epifauna tend to be either more resilient or have less exposure than infauna, because
they are not fully immersed in the sediments. In addition, their larval stages tend to be pelagic,
so on a routine basis, new recruits from many of these species are likely washed into this area.
Howes and Goehringer (1996) reported a wide assemblage of epibenthic organisms occurring in
Buzzards Bay, the common ones are listed in Table 3D. It is reasonable to expect that some or
many of these species are present in New Bedford Inner Harbor.
Table 3D: Common epibenthic species found in Buzzards Bay (Howes and Goehringer,
1996).
11
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Species
Class/phylum
Species
Class/phylum
Semibalanus
balanoides
Crustacea
Balanus balanus
Crustacea
Carcinus maenas
Crustacea
Cancer irroratus
Crustacea
Pagurus
longicarpus
Crustacea
Ampelisca spinipes
Crustacea
Byblis serrata
Crustacea
Littorina littorea
Gastropoda
Littorina obtusata
Gastropoda
Littorina saxatilis
Gastropoda
Mytilus edulis
Bivalvia
Modiolus modiolus
Bivalvia
Crepidula fornicate
Gastropoda
Retusa canaliculata
Gastropoda
Uniciola irrorata
Crustacea
Tellina teners
Bivalvia
Cylichna orzya
Gastropoda
Busycon
canaliculatum
Gastropoda
Homarus
americanus
Crustacea
Limulus polyphemus
Arthropoda
Shellfish: New Bedford Inner Harbor has been administratively closed to shellfishing since 1979.
A survey conducted by the Massachusetts Division of Marine Fisheries (MADMF) in the late
1990s showed a large abundance of commercial shellfish throughout New Bedford Inner Harbor.
Quahogs (Mercenaria mercenaries) were the dominant species found throughout the Harbor, but
soft shell clam (Mya arenaria), bay scallop (Aequipecten irradians), blue mussel (Mytilus edulis)
and American oyster (Crassostrea virginica) were also noted as present.
In May 2010, the Commonwealth conducted a shellfish survey in the project area. The
methodology of this survey was reviewed and approved by MADMF. Quahogs were the
dominant shellfish present within the proposed project area. Quahog densities varied within the
project area from 0 to 6.6 individuals per square foot. As part of this survey, quahogs were
classified as seed, littleneck, cherrystone or chowder clams based on their size. Seed quahogs
are any clam less than 50 mm in width, littlenecks are 51-60 mm in width, cherrystones are 60-
70 mm in width and chowder clams are 71 mm or greater in width. Based on the results of this
survey it is estimated that there are almost 10 million quahogs in the project area (Table 3E).
12
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Table 3E: Quahog abundance by size classification within the New Bedford State
Enhanced Remedy Project Footprint (MassDEP, 2012)
Seed
Littleneck
Cherrystone
Chowder
1,142,475
2,262,003
3,070,499
3,342,544
Total
.9,817,521
Marine Mammals and sea turtles: Humpback whales, Kemp's Ridley, Loggerhead and
Leatherback turtles all may occasionally be present in Buzzards Bay. Due to depth and lack of
desirable habitat, these species are unlikely to occur with Inner New Bedford Harbor (NMFS,
June 19, 2012). Harbor and gray seals occur within Buzzards Bay, but they are found
predominantly around the Elizabeth Islands chain and are unlikely to stray into Inner New
Bedford Harbor (Buzzards Bay Comprehensive Conservation and Management Plan, 2012).
3.3 Avian Resources
To characterize the avian resources within the project area, the Commonwealth has pooled a
variety of data sources, including historic dedicated surveys, and observations from
Massachusetts Audubon and avid amateur birders in the area. "Priority species" have been
identified by a joint commission of state and federal resource managers that work along the
Atlantic flyway (Puerto Rico to Canada). Table 3F lists "Priority species" that have been
observed in New Bedford. Occurrence of other bird species in the project area is infrequent
(MassDEP, 2012). Potential use of the project site by roseate terns will be discussed in Section
5.3 below and in Appendix K.
Table 3F: Bird species observed within or near proposed New Bedford State Enhanced
Remedy Project Area (MassDEP, 2012)
American black
duck
American
oystercatcher
Baltimore oriole
Black crowned
night heron
Blue winged
warbler
Canada goose
Chimney swift
Eastern kingbird
Eastern towhee
Gadwell
Gray catbird
Great crested
flycatcher
Killdeer
Least tern
Mallard
Nelson's sparrow
13
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Northern flicker
Saltmarsh sparrow
Snowy egret
Spotted sandpiper
Willet
Willow flycatcher
Wood duck
CLEAN WATER ACT SECTION 404(b)(1) GUIDELINES ANALYSIS
4.0 Alternatives (40 C.F.R. § 230.10(a))
4.1 Introduction: Forty C.F.R. § 230.10(a) prohibits a discharge of dredged or fill
material if there "is a practicable alternative to the proposed discharge which would have less
adverse impact on the aquatic ecosystem so long as the alternative does not have other
significant adverse environmental consequences." 40 C.F.R. § 230.10(a). This fundamental
requirement of the § 404 program is often expressed as the regulatory standard that a permit may
only be issued for the "least environmentally damaging practicable alternative" or LEDPA.
An alternative is practicable if it is "available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of overall project purposes."
Moreover, ".. .an area not presently owned by the applicant which could be reasonably be
obtained, managed, or utilized in order to fulfill the basic purpose of the proposed activity may
be considered." 40 C.F.R. § 230.10(a)(2). (The Region's analysis of the South Terminal Project
generally uses the term "basic" when discussing the project purpose, recognizing that the
regulations use the terms "overall" and "basic" interchangeably.)
A project proponent bears the burden of demonstrating that its preferred alternative is the
LEDPA. This demonstration may be made either by showing that no other alternatives are
practicable, by showing that no other alternatives are less damaging to the aquatic ecosystem, or
both. For this project, the Commonwealth has primarily based its alternatives analysis on issues
related to the practicability of alternative sites. With one exception, the submission does not
contain information that would allow a comparison of impacts to the aquatic ecosystem between
the proposed project and each of the various alternatives.
4.2 Basic Project Purpose: EPA has determined that the basic project purpose is to
develop a marine terminal that will provide infrastructure capable of supporting the development
of offshore renewable energy facilities as well as other future uses (such as container shipping,
break-bulk cargo shipping, bulk cargo shipping, short-seas shipping). A secondary purpose is to
provide a site for the disposal of, and staging for beneficial reuse of, material dredged from
navigational dredging associated with the State Enhanced Remedy ("SER").
14
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
4.2.1 Water Dependency: The construction of a marine terminal is considered to
be a water dependent activity because it requires access to or proximity to waters of the U.S. in
order to meet the basic project purpose. The project's secondary purpose — disposal and storage
of dredged material — is not a water dependent activity.9
4.3 Basic Project Purpose Criteria: The Commonwealth's site feasability criteria and
alternatives analysis relies on a report prepared by Tetra-Tech EC, Inc. on behalf of the
Massachusetts Clean Energy Center, entitled "Port and Infrastructure Analysis for Off-Shore
Wind Energy Development," (MassDEP 2012, Appendix 2), as well as on supplemental
information provided by Siemens, a leading offshore wind energy manufacturer. 10 Id.,
Appendices 3 and 4; MassDEP 2012a, Appendix D.
Tetra-Tech screened potential marine port sites against ten "hard" criteria which represent "basic
requirements without which a facility could not support a renewable energy terminal."
MassDEP 2012 at 18-19. Some of the criteria were subsequently refined or modified after input
to the Commonwealth from Siemens, based on its experience installing off-shore wind turbines
in Europe (since there are no existing off-shore wind farms in the United States). Id. at 19-23.
The Commonwealth identified the following key criteria that were significant for distinguishing
among alternatives for purposes of determining the practicability of each alternative in light of
the basic project purpose: horizontal clearance of at least 130 feet to accommodate expected
widths of international vessels; jack-up barge access (which requires a stable harbor bottom);
overhead clearance of at least 250 feet to accommodate the height of cranes and spuds of the
installation vessels; total wharf and yard upland area of at least 28 acres; berthing space of at
least 1,200 linear feet to accommodate one international vessel and two jack-up barges at any
one time; site control and availability; and proximity to future offshore facilities.11 Id. at 23-27.
The ability to reuse dredged material for disposal and future staging was also a factor evaluated
for each alternative, although it was not dispositive. Id. at 27.
9 For discharges associated with a non-water dependent project, the regulations at § 230.10(a) presume that
practicable, less environmentally damaging alternatives exist unless clearly demonstrated otherwise. 40 C.F.R. §
230.10(a)(3).
10 Siemens has entered an agreement with Cape Wind Associates to be the turbine supplier for the 130 turbine wind
farm proposed for installation at Horseshoe Shoals off of Nantucket Island. The Commonwealth hopes that its
proposed terminal will be the staging area for the Cape Wind development.
11 There were additional criteria, such as access to deep water navigation, that all of the alternatives satisfied and
therefore were not discussed in detail as part of the alternatives analysis.
15
-------
EPA Draft Determination for the Proposed South Terminal Appendix E
New Bedford Harbor State Enhanced Remedy
The Region has tentatively determined that the Commonwealth has made an adequate
demonstration that many of the above-referenced criteria are essential to satisfy the basic project
purpose, as discussed further below in the context of specific alternatives.
4.4 Alternatives Evaluated: The Commonwealth evaluated the following alternative
sites using the refined feasibility criteria: Port of Davisville, Quonset Business Park, Quonset
Point, Rhode Island (RI); Dry Dock #4, Marine Industrial Park, South Boston, MA; Fall River
State Pier, FalL River, MA; Union Wharf and Fairhaven Shipyard, Fairhaven, MA; North
Terminal and Pope's Island, New Bedford, MA; and South Terminal, New Bedford MA (the
preferred alternative) {cites). The Commonwealth concluded that all of the sites other than its
¦preferred alternative are not practicable for one or more reasons, and that its preferred alternative
therefore is the LEDPA. Id. at 27-54. The Region has evaluated the information provided by the
Commonwealth and tentatively agrees that South Terminal is the LEDPA for the reasons set
forth beiow.
4.4.1 Alternative I - Port of Davisville, Quonset Point, Rhode Island: To be
practicable, an alternative must be available to the project proponent. The Port of Davisville is
owned by the State of Rhode Island and operated by the Rhode Island Economic Development
Corporation. Id., Appendix 2 at 5-28. Much of the upland portion of the port, including the two
main piers, is already fully utilized for an existing auto import operation, reportedly the fifth
busiest auto importer in North America, and growing. Indeed, the port is now the 7th largest car
importer in North America, http://www.wpri.com/dpp/news/local_news/south_county/north-
kingstow-port-of-davisville-celebrates-milestone. There is no realistic basis to believe that the
piers and upland being used for the auto import operation could be purchased or leased by the
Commonwealth to develop a marine terminal to support off-shore wind energy development, and
the Commonwealth has no eminent domain authority in Rhode Island. The Region has
tentatively determined that this area is not available and therefore not practicable.
The Commonwealth also evaluated a 27.5 acre area at the Port located just south of Pier 1, which
is one of the two piers used for the auto import operation. MassDEP 2012 at 29. This is referred
to as the "Magnolia Street Area" and depicted in Appendix 6, p. 6. In its January 18, 2012
submission, the Commonwealth reported that of this area, a 14.5 acre parcel was under
agreement, and that the holder of the option had stated that it was not interested in granting a
long term lease to the Commonwealth. Id. at 29-30. The Commonwealth subsequently provided
information showing that the parcel is not available. See MassDEP 2012a at 15 and Attachment
I. Based on the Commonwealth's submissions, it seems clear that the minimum acreage
necessary to accommodate a marine terminal to support off-shore wind energy development is at
least 20 acres, and possibly as large as 28 acres. MassDEP 2012, Appendices 3 and 4. Hence,
the remaining available 13 acres at this site would not be large enough to be a feasible
alternative. In addition, neither pier at the port to the north is available, as discussed above.
Therefore the Region has tentatively determined that this site is not practicable in light of the
16
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
basic project purpose.
Finally, the Commonwealth evaluated a 45 acre undeveloped area between the Magnolia Street
area and Quonset Airport. While there is ample backland area adjacent to the shoreline, there
would be extensive environmental impacts associated with developing this parcel into a marine
terminal capable of supporting offshore renewable energy development. Because of the
unavailability of the piers at the Port of Davisville, access to this area would require the
construction of a bulkhead which, to create sufficient berthing space, would involve filling 6
acres of salt marsh and approximately 15.7 acres of intertidal and shallow sub-tidal area. From
an acreage standpoint, these impacts are substantially greater than the filling of 0.18 acre of salt
marsh and 6.67 acres of intertidal and shallow subtidal area associated with the Commonwealth's
preferred alternative. In addition, to create an adequate boat basin, turning basin, and access
channel, approximately 32.75 acres of shallow sub-tidal habitat would need to be dredged,
compared to between 18.31 and 21.65 acres of shallow sub-tidal habitat and between 7.0.1 and
8.29 acres of deeper subtidal areas that would be dredged for the Commonwealth's preferred
project. 12 Id. at 31-32; MassDEP 2012a at 16-17. If the berthing area were shifted to the south
to avoid the salt marsh, the length of the channel and associated dredging impacts would
increase. Given the greater areal extent of the impacts associated with development of this site,
particularly in the valuable salt marsh, intertidal, and shallow subtidal areas, EPA has tentatively
determined that development of this parcel to meet the basic project purpose would not be less
environmentally damaging to the aquatic ecosystem compared to the Commonwealth's preferred
alternative. Therefore, the Region has tentatively determined that it is not the LEDPA and
declines to reach any judgment about its practicability.
4.4.2 Alternative II - Dry Dock #4, Boston, Massachusetts: This site is located
in the Marine Industrial Park in South Boston. The Commonwealth identified a number of
reasons why, in its judgment, the site is not a practicable alternative. The first is that there is
only 13-14 acres of land currently available. In order to obtain the necessary acreage, a long
established and well known landmark, Harpoon Brewery, would need to agree to sell its
premises or the Commonwealth would have to exercise eminent domain. A willing sale is not a
likely scenario, and eminent domain proceedings could take years.
An additional issue is that the geologic nature of the sediments that underlay Boston Harbor are
not sufficiently stable to support the equipment that would be employed for off-shore wind
facility construction. Jack-up barges will be used to transport the constructed turbines from the
terminal to the off-shore installation site. When the barges are being loaded, they are supported
12 Although the South Terminal Project also involves the potential for up to 15 acres of maintenance dredging in the
Federal Navigation Project, this dredging is expected to result in only minimal temporary impacts.
17
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
by 3 or 4 "spuds" (up to 250-foot long legs) that are planted on the ocean floor. In order to
support the weight of the barge and the turbines, the ocean floor in front of the bulkhead must be
of a uniform, hard consistency. MassDEP 2012 at 20, 34-36; MassDEP 2012a at 18. According
to information provided by the Commonwealth, the ocean floor in Boston,Harbor consists of
fine-grained organic soil underlain by Boston Blue Clay. MassDEP 2012 at 34; MassDEP 2012a
at 19. Blue clay does not provide the stability necessary to support the jack up barges.
MassDEP 2012 at 36-37; MassDEP 2012a at 18-19 and Attachment K.
As discussed in section 4.4.1 above, the Commonwealth's submissions have demonstrated that
the minimum acreage, necessary to accommodate a marine terminal to support off-shore wind
energy development is at least 20 acres, and possibly as large as 28 acres. Because the available
acreage at Dry Dock #4 is only 13-14 acres, and because the Region tentatively agrees that the
Harpoon Brewery parcel is not available to increase the site to a feasible size, the Region
tentatively agrees that this site is not practicable.
Even if there were a way to acquire sufficient land, the Region tentatively has determined that
this site also is not practicable to meet the basic project purpose because of the presence of
unsuitable substrate. The Commonwealth's submissions demonstrate that in order to function
safely, the jack-up barges that will be used to transport wind turbines to an offshore facility must
be planted on a firm substrate so that they will not tip over or sink. The Boston Blue Clay that
underlies Boston Harbor is too soft to reliably support jack-up barges without the risk of
accidents and therefore renders the site impracticable.13
The Commonwealth has identified additional issues with this site. The first relates to the need
for Federal Aviation Administration approval to operate the facility at this location due to its
proximity to Logan Airport, and the potential incompatibility between the height of the turbines
when loaded onto the barges traveling to the installation site and height restrictions that the FAA
might establish. The second issue relates to the distance between this site and the locations of
two currently proposed offshore wind farm developments: Nantucket Sound (for the Cape Wind
project), and off the coast of Rhode Island (for the proposed Deepwater Wind project). The third
relates to potential increased impacts on the federally endangered right whale due to additional
vessel traffic in shipping lanes frequented by the whales. Because the Region has tentatively
determined that this site is not practicable for the reasons discussed above, we have not reached
any conclusions about the effect of these factors on the practicability of this alternative.
13 An additional site in Boston Harbor considered in the Tetra-Tech report, the Coastal Oil terminal site, is similarly
impracticable in light of the presence of blue clay. See MassDEP 2012a at 19, 50, and Attachment K.
18
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
4.4.3 Alternative III - Fall River State Pier, Fall River, Massachusetts: There
are several issues related to the practicability of this site. The first two relate to the size and
availability of the facility. The upland area at the pier is only approximately 9 acres. It is
currently in active use for offloading break-bulk and container ship cargo, for roll-on roll-off
cargo, for cargo storage, and as a berthing and terminal location for cruise ships. MassDEP 2012
at 40 and Appendix 9. Because 9 acres is too small to accommodate a marine terminal to
support off-shore wind energy development, additional property would also need to be obtained.
The only parcel large enough to provide sufficient land is an approximately 29 acre parcel
currently used for chemical manufacturing, storage, and distribution. Product is shipped to/from
this site via rail, truck, or ships (using existing docks with deep water berths). See
http://www.boremco.com/chemical-product-distribution.htm. Under state law, the existing water
dependent users at both the pier area and the 29 acre parcel would have to be relocated to
alternative locations having physical attributes, including proximity to the water, and associated
business conditions, equal to or better than the existing location. 310 C.M.R. 9.36(4). The
process of freeing the land would take years and it may be impossible to find alternative
locations to move the existing water dependent users to.
As discussed in section 4.4.1 above, the Commonwealth's submissions have demonstrated that
the minimum acreage necessary to accommodate a marine terminal to support off-shore wind
energy development is at least 20 acres, and possibly as large as 28 acres. Because the acreage at
the Fall River State Pier is only 9 acres, and because the Region tentatively agrees that neither
the State Pier nor the 29-acre Boremco parcel is available in the foreseeable future due to the
current presence of water dependent users, the Region tentatively agrees that this site is not
practicable.
A third issue relates to height restrictions at this location. As discussed in the Commonwealth's
submissions, one of the essential siting criteria is the absence of height restrictions that would
constrain the construction or transportation of wind turbines. Crawler cranes, which are used at
the turbine assembly site to unload and load the delivery and installation vessels, respectively,
and for pre-assembly of the wind turbines, have boom heights that exceed 250 feet. MassDEP
2012 at 24 and Appendix 3, p. 2. The jack-up barges that will transport the turbines to the
installation site have 150-250 foot legs (depending on the depth of the waters at the installation
site) that extend above the barges when they are mobile. 14 MassDEP 2012, Appendix 2 at 3-25
to 3-26. Finally, the industry trend is toward transport of fully, rather than partially, pre-
assembled turbines; the fully assembles units would extend 250 feet above the transport barge.
14 It may be possible for the legs to be lowered temporarily to allow the barge to pass below a bridge of a channel if
the channel is deep enough. Appendix 2 at 3-25.
19
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
MassDEP 2012, Appendix 3, p. 2; Appendix 4, p. 2; MassDEP 2012a, Attachment D. The Fall
River. Pier site presents two separate height constraints. First, the 135-foot high Braga Bridge is
located over approximately 20% of the pier. MassDEP 2012 at 39. Its height would render much
of the pier area inaccessible to the large crawler cranes that are necessary for transporting,
stacking, assembling, loading, and unloading the wind turbine components. The Region has
tentatively concluded that the presence of the bridge over this area makes the site impracticable
from a logistical standpoint. In addition, the Mt. Hope Bridge, located south of the site, is only
135 feet high and would impose a significant vertical clearance constraint on the transport of the
turbines to installation sites. Id. at 40. The Region has tentatively concluded that the height of
this bridge also makes the site impracticable from a logistical standpoint.
4.4.4 Alternative IV — Union Wharf and Fairhaven Shipyard, Fairhaven
Massachusetts: The combined wharf and upland areas for these two contiguous parcels totals
approximately 9.14 acres. Id. at 45. If a CDF were constructed between these parcels, the total
available area would only be approximately. 12 acres, well below the size necessary to support
off-shore wind energy development. Expansion to the west is not feasible because of the
presence of the Federal Navigation Project. MassDEP 2012 at 45. Expansion to the north or
1 south, as well as use of the existing 9.14 acres of wharfs and upland, would mean that the
existing water dependent users, which include commercial offshore fishing vessels, commercial
boat repair, near-shore lobster boats, and fish processing and packing, would have to be relocated
to alternative locations having physical attributes, including proximity to the water, and
associated business conditions, equal to or better than the existing location. Id.; see also 310
C.M.R. 9.36(4). The process of freeing the land would take years and it may be impossible to
find alternative locations to move the existing water dependent users to. Additional acreage is
not available to the east due to the residential neighborhoods located immediately to the east of
the wharf and shipyard, and the adjacent roads are not suitable to transport large wind energy
components.
For all of these reasons, the Region has tentatively determined that this site is not a practicable
alternative.
4.4.5 Alternatives V and VI- North Terminal and Pope's Island, New
Bedford, Massachusetts: Both of these sites are affected by similar issues. North Terminal is a
marine industrial site located on the west side of upper New Bedford Harbor, just north of the
Route 6 New Bedford-Fairhaven Bridge that spans the Harbor. It is occupied by a number of
businesses, including shipyards, boat repair facilities, and marine bulk transfer businesses.
Pope's Island is located in the middle of the Harbor and is traversed by the Route 6 Bridge.
There is a 198-slip public marina on the south side of the island, and a variety of shipyards,
marinas, boat repair facilities and marine supply businesses are located on the north side.
20
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Vessel access to the area north of Route 6 is through a swing-span bridge, constructed in 1906,
which, when open, provides two approximately 95-foot wide passages (one for boats traveling
north and the other for boats'traveling south). The horizontal clearances of the bridge cannot
accommodate the vessels that would be used to support off-shore wind energy development.
The international vessels, which will deliver the turbine components to the terminal, are 98-115
feet wide; and the jack-up barges, which will take the constructed turbines to the installation site,
are approximately 100 feet wide. MassDEP 2012 at 20. Efforts over the past decade to
reconstruct this bridge and provide great horizontal access have been unsuccessful, and existing
plans have not moved beyond the conceptual stage. Id. at 47. All of North Terminal and the
majority of Pope's Island are and will continue to be inaccessible to the necessary vessels unless
and until a new bridge is built.
The Region has tentatively concluded that the bridge access issue alone means that the North
Terminal site is infeasible and therefore not a practicable alternative. In addition, use of this site
would require the displacement of existing water dependent users through the exercise of
eminent domain, requiring the relocation of such users to comparable locations. Id. at 49-50.
Similar to some other alternatives discussed above, the Region tentatively agrees that this site is
not available in the foreseeable future due to the current presence of water dependent users, and
for this additional reason the Region tentatively agrees that this site is not practicable.
While the northern portion of Pope's Island could potentially provide sufficient land for a
terminal to support off-shore wind energy development, it is not accessible because of the bridge
access issue discussed above. The southern portion of the island is accessible, but it is less than
10 acres in size, and use of additional parcels on the northern portion would be prevented by the
presence of U.S. Route 6, which bisects the island. In addition, use of this site for the terminal
would require multiple water dependent users to be displaced and relocated to comparable
locations. Id. at 48-49. The Region has tentatively determined that these issues render the Pope's
Island site impracticable.15
4.4.6 Alternative VII - State Pier, New Bedford, Massachusetts: State Pier is
a marine industrial terminal located on the west side of lower New Bedford Harbor, south of the
Route 6 New Bedford-Fairhaven Bridge. The immediate backland at this site is only 7-8 acres,
which is too small to accommodate a terminal to support offshore renewable energy
development. MacArthur Drive, to the west, presents a significant road barrier to use of
15 The Commonwealth also stated it would need to create larger CDFs at these two sites than the one proposed at
South Terminal in order to provide sufficient acreage, .potentially resulting in greater impacts to the waters of the
U.S. However, there is insufficient information in the submission to enable the Region to reach conclusions about
whether the resulting aquatic impacts from terminal construction at these sites would be greater or less than what is
proposed for South Terminal.
21
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
additional parcels to the west. Adjacent land uses to the north and south include several other
wharfs and piers which support commercial fishing activities. The State Pier itself is used for
many purposes, including ferry operations, cargo offloading and storage operations, cruise ship
operations, and as a staging location for emergency vehicles. Use of the State Pier and any of the
adjacent parcels (to provide additional backland space) would require the relocation of the
existing water dependent users pursuant to 310 C.M.R. 9.36(4). The process of freeing the land
would take years; and, according to the Commonwealth, relocation is unlikely to be feasible
without the construction of a new marine terminal elsewhere in the Harbor. MassDEP 2012 at
53. Therefore, EPA has tentatively determined that the State Pier site is not a practicable
alternative.
4.4.7 Alternative VIII - South Terminal, New Bedford, Massachusetts:
South Terminal is located on the west side of lower New Bedford Harbor, just north of the
Hurricane Barrier. The proposed facility would be constructed primarily on the site of the
former Potomska Mill complex. The main portion of the facility would be comprised of
approximately 11 contiguous acres of existing upland and 6.85 acres of additional land created
by construction of a CDF in adjacent waters. An additional 8 acres of ancillary upland south of
the main portion would be used for wind blade lay-down. In addition, two different:
configurations of an additional 2.4 acres are under consideration by the Commonwealth.
Configuration A would add an additional 1.1 acres contiguous to the main portion of the facility,
and the remainder would be contiguous to the 8 acres of ancillary parcels to the south.
Configuration B would add an additional .75 acres contiguous to the main portion, and 1.65 acres
to the west of the 8 acres of ancillary parcels. MassDEP 2012a at 8 and Attachment D, pp. 2-3.
The parcels of existing upland that would comprise terminal facility are owned by the New
Bedford Redevelopment Authority, the Commonwealth, and several private owners with which
the Commonwealth is engaged in negotiations to obtain the necessary property rights. MassDEP
2012a at 8-9. The Commonwealth anticipates completion of those negotiations in the near future
and does not anticipate the need to relocate any water dependent users. Id.
There are no vertical or horizontal access issues at the South Terminal site. The entrance to the
hurricane barrier just south of the site is 150 feet wide and therefore can accommodate the
international vessels (98-115 feet wide) and the jack-up barges (100 feet wide) that will be used
during the wind turbine construction process. MassDEP 2012 at 20 and 73. No bridges restrict
vertical clearance, and any height restrictions associated with operation of the New Bedford
Airport do not extend south of Pope's Island and therefore would not affect this site. Id. at 74;
Appendix 27. The substrate located at the base of the dredge footprint consists of materials that
are sufficient to provide stable support for jack-up barges. Id. at 74; Appendix 26.
The Commonwealth proposes to fill approximately 0.1 acres of freshwater wetlands, 0.18 acres
of salt marsh, 1.94 acres of intertidal habitat, and 4.07 acres of shallow subtidal habitat in order
22
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
to construct a CDF adjacent to the existing upland. The CDF would be created by constructing a
bulkhead and backfilling the intertidal, shallow subtidal, and saltmarsh areas with clean sand
dredged from the proposed access channel. The construction of the CDF in waters of the U.S. is
necessary both to ensure that the project site is of sufficient size to accommodate a marine
terminal capable of supporting offshore renewable energy development, and to provide an area
of sufficient load bearing capacity for assembly and transfer of turbines adjacent to the bulkhead.
MassDEP 2012a, Attachment D, pp. 2-3. The Commonwealth provided persuasive information
to justify construction of a solid fill structure rather than a pile-supported structure. MassDEP
2012 at 79-85. A pile-supported structure would not be sufficient to support the extremely heavy
loads and vibration that will be associated with the construction cranes and the turbine
components themselves. Id. The Commonwealth has taken steps to minimize the solid fill by
redesigning the structure so that an additional 0.67 acres of shallow subtidal habitat, which the
Commonwealth had originally planned to completely fill, will now be incorporated into a pile-
supported apron adjacent to the wharf and will be only partially filled with riprap on the bottom.
The wharf will provide approximately 1,200 linear feet of berthing space, sufficient to
accommodate one international vessel and two jack-up barges at any one time, consistent with
one of the siting criteria.
In order to provide vessel access to this site and to mitigate for the alteration of the nearby
Gifford Street boat ramp channel and moorings, the Commonwealth proposes to conduct new
dredging of up to approximately 21.65 acres of shallow sub-tidal habitat and 8.29 acres of deeper
subtidal areas. If necessary to accommodate the draft of vessels that will utilize the terminal, the
Commonwealth would also conduct maintenance dredging of up to 15 acres of deeper subtidal
areas in the Federal Navigation Project channel. The Commonwealth also proposes to dredge up
to 8.76 acres of shallow, near-shore subtidal area to create a confined aquatic disposal cell
("CAD") to allow for disposal of contaminated navigational dredged material. Finally, the
Commmonwealth proposes to cap the existing Borrow Pit and CAD 1 with clean dredged
material and dispose of contaminated dredged material into CAD cell 2, resulting in 10.8 acres of
temporary impacts.
EPA has tentatively determined that the South Terminal site is practicable in light of the basic
project purpose, provided that the Commonwealth is able to successfully complete negotiations
with property owners in order to obtain control of the terminal site. EPA has further tentatively
determined that the South Terminal site represents the LEDPA, based on the tentative
determinations discussed above that the other alternatives are either not practicable or are not
less environmentally damaging.
5.0 Evaluation of Impacts Related to Water Quality Standards, Toxic Effluent Standards,
23
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Endangered or Threatened Species, and Marine Sanctuaries (40 C.F.R. § 230.10(b))
Section 230.10(b) prohibits discharges which would cause or contribute to violations of state
water quality standards developed pursuant to § 303 of the Clean Water Act; violate toxic
effluent standards promulgated by EPA under § 307 of the Clean Water Act; jeopardize the
continued existence of endangered or threatened species listed under the Endangered Species Act
or result in the likelihood of the destruction or adverse modification of designated critical habitat
for such species; or violate requirements established to protect any designated marine sanctuaries
pursuant to the Marine Protection, Research, and Sanctuaries Act.
5.1 Water Quality Impacts: State water quality standards are comprised of designated
uses, numerical and narrative criteria to maintain these uses, and antidegradation provisions to
ensure that, among other things, existing water quality and uses be maintained and protected.
Construction of the South Terminal Project will involve completely filling approximately 6.18
acres of waters to create uplands .(i.e., confined disposal facility); partially filling approximately
0.67 acres of waters (i.e., riprap scour protection and mitigation areas); and deepening
approximately 44.94 acres of waters (i.e., navigation channel dredging and mooring area
dredging). There will also be temporary impacts associated with dredging a confined aquatic
disposal (CAD) cell and filling several CAD cells.
5.1.1 Water Column Impacts: The activities which have the potential to affect
water column quality in New Bedford Harbor during construction include:
• Disturbance, due to 1) dredging of contaminated sediments from the harbor floor and 2)
disposal of contaminated sediments into CAD cells, could temporarily cause an increase
in toxics, including heavy metals and organic compounds;
• Disturbance, due to dredging, of any sediments from the harbor floor could temporarily
cause an increase in suspended solids and turbidity, phosphorus, and a decrease in
dissolved oxygen, due to the resuspension of organic matter and nutrients; and
disturbance (turbidity) due to CAD cell capping.
• The driving of sheet piles to construct the confined disposal facility will produce locally
elevated turbidity levels until their installation is complete due to. the unavoidable
disturbance of sediments during that work.
• High turbidity water generated by the.dewatering of dredged material to be used as fill in
upland areas (above Mean High Water) could be discharged directly to the New Bedford
Harbor;
• Storm water runoff from excavation, stockpiling and fill areas could cause an increase in
suspended solids and turbidity, phosphorus, and toxics, including heavy metals and
organic compounds;
24
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
• Storm water runoff from construction vehicle washing, maintenance and storage
refueling areas could contribute oil, grease and fuel and foaming; and
• If blasting is necessary to remove shallow rock from the navigational channel there
would be a short term increase in turbidity in the water column due to the disturbance of
sediments and rock.
Specific best management practices measures intended to ensure that the dredging and filling
activities will not cause or contribute to water quality standards violations, including criteria
exceedances and impairment of uses, have been proposed by the Commonwealth. They include
the following:
• Dredging, capping, and disposal of contaminated sediments into CAD cells will occur
within partitioned areas to prevent the migration of sediments from the dredging area to
the rest of the harbor.
• Control of erosion and migration of excavated, dredged and stockpiled materials through
the use of a variety of best management practices designed to maintain material stability,
including silt fencing and covering of stockpiled materials.
• Water decanted off dredged material settling basins will be treated by settling and sand
filtration or equivalent treatment technology. ¦,
• The placement of a silt curtain about the CAD cell during construction to prevent
contaminated sediments from migrating beyond the work area.
• Implementation of storm water control measures consistent with EPA's 2012
Construction General Permit for storm water discharges associated with construction
activities including the collection and treatment of runoff in the construction zone.
EPA has tentatively determined that the proposed project will not result in water column impacts
that would cause or contribute to violations of Massachusetts' water quality standards provided
that construction activities are carried out in accordance with the following:
• Storm water management practices consistent with the 2012 Construction General
Permit16 and with the best management practices requirements of 314 C.M.R. § 9.06(6),
310 C.M.R. § 10.05(6)(k) and the Massachusetts Stormwater Handbook; and
• dredging and disposal practices consistent with the Performance Standards in Appendix
C.
5.1.2 Habitat, Fishery, and Shellfish Impacts: EPA's water quality
16 National Pollutant Discharge Elimination System General Permit for Discharges from Construction Activities,
effective February 16, 2012.
25
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
antidegradation regulation at 40 C.F.R. § 131.12(a)(1) requires that existing water uses be
maintained and protected. Massachusetts' water quality standards contain a similar requirement
(314 C.M.R. §4.04).
In the context of the loss of a use due to discharges of dredged or fill material, EPA interprets
this provision to be satisfied as long as the discharge,does not result in significant degradation of
the aquatic ecosystem as defined under 40 C.F.R. § 230.10(c)17. In this case, there will be a
permanent loss of nearly seven acres of aquatic habitat as a result of the construction of the
South Terminal confined disposal facility ("CDF'), as well as temporary and permanent impacts
to 53.7 acres of intertidal and subtidal habitat, and the loss of over 9 million shellfish, due to
dredging associated with the project. As discussed in section 6 below, EPA has tentatively
determined that these impacts would not cause or contribute to significant degradation of the
aquatic ecosystem in violation of § 230.10(c), provided that adequate compensatory mitigation is
implemented.18 Therefore, the project would not violate the federal and state antidegradation
provisions.
Based on the foregoing, EPA has tentatively determined that the proposed project will not cause
or contribute to violations of water quality standards.19
5.2 Toxic Effluent Standards: EPA has not promulgated any Toxic Effluent Standards
pursuant to § 307 of the Clean Water Act that would be applicable to this project; hence
discharges associated with this proposed project will not violate toxic effluent standards. The
potential for water quality impacts associated with potentially toxic chemicals such as PCBs,
PAHs, metals, etc., have been evaluated to ensure that state water quality standards will be met.
See Section 5.1 above.
5.3 Endangered and Threatened Species: EPA has determined that the endangered
roseate tern {Sterna dougallii) may be in the project area. EPA engaged in informal consultation
with the U.S. Fish and Wildlife Service and has completed a final Biological Assessment (BA)
of the potential effects of the construction and long-term operation of the project on the roseate
tern, attached as Appendix K. For the reasons discussed in the final BA, EPA has concluded that
17 EPA, Questions & Answers on: Antidegradation, page 5, 1985.
18 As discussed in section 6 below, EPA's conclusion regarding significant degradation under 40 C.F.R. § 230.10(c)
also takes into account the secondary and cumulative impacts.
19 MassDEP's Office of Operations and Environmental Compliance reached a similar conclusion as discussed in a
June 18, 2012 memorandum to EPA provided that the performance measures outlined in that memorandum and its
Appendix A are adhered to.
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
the proposed NBH-South Terminal project may affect the roseate tern, but is unlikely to
adversely affect the species. EPA will be transmitting the final Biological Assessment to FWS
and will request concurrence from FWS prior to making a final decision on the project.
EPA has also identified the endangered Atlantic sturgeon (Acipenser oxyrinchus oxyrincus) as a
species which has the potential to occur in the area and may be adversely affected by the
proposed action.' On June 19, 2012, National Marine Fisheries Service informed EPA that,
because Atlantic sturgeon undertake large-scale marine migrations and will forage anywhere any
available habitat exists, this species may be present in the vicinity of New Bedford Harbor. EPA
is currently seeking additional technical assistance from NMFS and is in pre-consultation
analysis with it. In that process, EPA and NMFS are discussing time of year restrictions, project
sequencing options and mitigative dredging techniques which could greatly lessen or eliminate
any potential adverse effects to the species. Prior to the issuance of a final decision on the
impacts of the project, EPA will enter informal consultation with NMFS, which will include
preparation of a Biological Assessment, and will seek concurrence with EPA's findings
regarding the potential impacts to the sturgeon from the construction and operation of the
project. See Appendix I for additional information. ,
5.4 Marine Sanctuaries: There are no designated marine sanctuaries in or directly
adjacent to the South Terminal project area.
6.0 Evaluation of Significance of Impacts, Including Secondary and Cumulative Impacts, to
Waters of the U.S. (40 C.F.R. § 230.10(c) (including factual determinations under 40 C.F.R.
§§ 230.11 and 230,20 - 230.77)
Section 230.10(c) prohibits discharges which would cause or contribute to significant
degradation of waters of the U.S. Significant degradation may include individual or cumulative
impacts to human health and welfare; fish and wildlife; ecosystem diversity, productivity and
stability; and recreational, aesthetic or economic values. Findings are to be based on the factors
and considerations set forth in subparts B through G of the § 404(b)(1) guidelines.
6.1 Physical and Chemical Characteristics of the Aquatic Ecosystem (Subpart C)
6.1.1 Substrate Impacts: The existing benthic substrate within the South
Terminal project area is typically composed of coarser sandy sub-soils overlain by a layer of
finer Polychlorinated Biphenyl ("PCB") and heavy metal contaminated sediments. As part of
this project, benthic substrates will be filled to become upland; filled to become a shallower
aquatic ecosystem (mitigation); filled in conjunction with CAD cell capping and dredged
material disposal; dredged and armored; or just dredged.
27
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
All totaled, approximately 0.18 acres of salt marsh, 0.1 acres of freshwater wetlands, and
approximately 6.67 acres of intertidal and sub-tidal benthic habitat will be completely filled as
part of the construction of the South Terminal/Confined Disposal Facility. Another 0.67 acres of
sub-tidal benthic habitat will be dredged and armored as part of this work.
In addition, filling will occur in conjunction with creating and/or enhancing 4.47 acres of
intertidal habitat, 22.73 acres of winter flounder spawning habitat, and 14.91 acres of near-shore,
shallow, sub-tidal habitat. Approximately 10.8 acres will be affected by capping two existing
CAD cells and disposing of contaminated dredged material into a third existing CAD cell. All of
these impacts will be temporary and a significant improvement in sediment quality by isolating
the contaminated sediments from the environment.
Finally, approximately 53.7 acres of sub-tidal benthic habitat will be dredged and deepened as
part of plans to maintenance dredge portions of the existing New Bedford Harbor Federal
Navigation Project ("FNP"), to provide adequate navigational access to the South Terminal site,
to realign the Gifford Street Boat Ramp Channel, to deepen areas within the North and South
Mooring Areas, and to construct a confined aquatic disposal ("CAD") cell (into which
contaminated navigational dredged material will be placed).
6.1.2 Suspended Particulate/Turbidity Impacts: In-water construction
activities (i.e., filling and dredging) associated with the South Terminal Project will result in
temporary suspended particulate/turbidity impacts to adjacent areas. These turbidity impacts
could temporarily affect light penetration and chemical processes within adjacent benthic habitat
area and result in burial of adjacent benthic areas. The Commonwealth has proposed to sequence
construction activities and to maintain adequate sedimentation/erosion controls during the
construction phase of this project in order to minimize turbidity impacts into adjacent waters of
the United States, including jurisdictional wetlands. With adequate sedimentation/erosion
controls installed and maintained, EPA believes that turbidity impacts associated with the South
Terminal Project will be short-term and minor.
6.1.3 Water Column Impacts: Although the dredging and filling activities
associated with the South Terminal project have the potential to impact water quality in the
project vicinity, EPA has tentatively determined that such impacts can be minimized with the
diligent application of best management practices, such as those proposed by the Commonwealth
and discussed above in Section 5.1.
6.1.4 Alteration of Current Patterns and Water Circulation: The proposed
construction of the South Terminal/Confined Disposal Facility as well as the dredging of
associated navigational channels will affect current patterns and water circulation. The new solid
fill areas and deeper navigation channels will alter current patterns to adjacent areas. Circulation
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
will improve to some localized areas and be obstructed to others. Due to the presence of the
New Bedford Hurricane Barrier directly downriver of the South Terminal project area, EPA
believes that this project will have limited impacts on wider current and water circulation
patterns.
6.1.5 Alteration of Normal Water Fluctuations/Hydroperiod: The proposed
construction of the South .Terminal/Confined Disposal Facility as well as the dredging of
associated navigational channels could affect normal water fluctuations. The new solid fill areas
and deeper navigation may improve or obstruct water fluctuations/flushing of localized adjacent
areas. Due to the presence of the New Bedford Hurricane Barrier directly downriver of the;
South Terminal project area, EPA believes that these water fluctuations/flushing impacts will be
minor and limited to the project area and adjacent properties.
6.1.6 Alteration of Salinity Gradients: No alteration of salinity gradients is
expected as a result of the South Terminal Project.
6.2 Biological Characteristics of the Aquatic Ecosystem (Subpart D)
6.2.1 Effect on Threatened/Endangered Species: EPA is currently in informal
consultation with FWS regarding the roseate tern (see Section 5.3 above) and is seeking FWS's
concurrence with EPA's determination that the proposed NBH-Sduth Terminal project may
affect the roseate tern, but is unlikely to adversely affect the species. EPA has recently begun
discussions with NMFS to determine whether there would be potential adverse effects from the
proposed project on the Atlantic sturgeon. Prior to the issuance of a final decision on the impacts
of the project, EPA will enter informal consultation with NMFS, which will include preparation
of a Biological Assessment, and will seek concurrence with EPA's findings regarding the
potential impacts to the Atlantic sturgeon from the construction and operation of the project. See
Appendix I and Appendix K for additional information.
6.2.2 Effect oil Fish, Crustaceans, Mollusks, and Other Aquatic Organisms
in the Food Web: The South Terminal project area serves as habitat for a variety of benthic
infaunal species (worms and shellfish), benthic epifaunal species (crustaceans, gastropods, and
mollusks), and plankton species that serve as prey species for fish species and other consumers in
the food web (for more details see Section 3.2 above). New Bedford Harbor substrates also
provide spawning and nursery habitat for economically-important fishery species such as winter
flounder (Pseudopleuronectes americanus), windowpane flounder (Scopthalmus aquosus), scup
(Stenotomus chrysops), and black sea bass (Centropristus striata). (For more details see
Appendix H).
As part of the South Terminal/Confined Disposal Facility Project approximately 0.18 acres of
salt marsh and 6.67 acres of intertidal and sub-tidal benthic habitat will be permanently impacted
. 29
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
by filling. Another approximately 53 acres of subtidal habitat will be temporarily impacted by
the placement of fill. This total includes fill placed as part of the mitigation plan to create and
enhance winter flounder spawning habitat, intertidal area and shallow subtidal habitat. It also
includes acreage associated with the capping of CAD cell 1 and the "Borrow Pit" and the
placement of contaminated dredged material into CAD cell 2. An additional 53.7 acres of sub-
tidal benthic habitat will be deepened associated with the dredging of adjacent navigation
channels and mooring areas. These various dredging and filling activities will result in either the
removal (by dredging) or burial (by filling) of many of the benthic prey species. The benthic
infaunal community will be removed with the dredge sediment or buried, so polychaetes,
bivalves and burrowing amphipods will be lost within the footprint of proposed work.
Epibenthic invertebrates with limited mobility (snails, sea stars, sand dollars, etc.) will also
suffer significant mortality from the dredging. More mobile epibenthic invertebrates (crabs,
lobsters, shrimp, etc.) will likely suffer some mortality as well, but their mobility will allow
some individuals to leave or avoid the construction area.
Potential impacts to winter flounder and shellfish populations should be specifically noted.
Regionally the number of winter flounder has greatly reduced in recent years. Winter flounder,
which typically spawn in water depths between 0.3 to 4.5 meters deep, will be disproportionately
impacted by the proposed South Terminal Project. The filling of subtidal areas and the
deepening of navigational channels to below preferred spawning depths will result in the
permanent loss of approximately 20.21 acres of winter flounder spawning and nursery habitat.
EPA views this potential loss of habitat as critical and as such, these impacts need to be
minimized and mitigated. In addition, the Commonwealth has estimated that the filling and
dredging activities associated with the South'Terminal Project will impact 9-10.million shellfish.
All waters upstream of the New Bedford Harbor Hurricane Barrier are part of the Fish Closure
Area #1. Fish, lobsters, and shellfish have accumulated high levels of PCBs in their tissues and
as a result are not safe for human consumption. Thus, any consideration of relaying/transferring
these shellfish to beds that are open has been eliminated. One of the preferred prey items of
winter flounder are clam siphons, so the loss of this large number of shellfish represents a
potential impact to the foraging opportunities for winter flounder. EPA views the potential loss
of this quantity of shellfish to be substantial, and these impacts need to be minimized and
mitigated with an appropriate shellfish reseeding program.
Overall, filling and dredging activities will generally lead to short term negative impacts to the
local food web. Over time, less mobile benthic species (worms, gastropods, mollusks, etc.) will .
recolonize appropriate portions of the construction area. More mobile beiithic species (crabs,
lobsters, shrimp, etc.) as well as juvenile and adult fish will leave the construction area and
forage in adjacent unimpacted areas. As soon as the construction ceases, these more mobile
creatures will return to the area. In cases where the South Terminal Project will have
disproportionate impacts on winter flounder or shellfish habitat, EPA will require minimization
and appropriate mitigation to avoid significant impacts.
30
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
6.2.3 Effect on other Wildlife (Mammals, Birds, Reptiles, and Amphibians):
Impacts from the South Terminal Project on other wildlife species, such as to mammals, birds,
reptiles, and amphibians are expected to be minor and short-term. Since these species are more
mobile, they will be able to avoid most of the impacts from this project. They will be able to
forage and/or spawn in adjacent unimpacted habitat areas.
6.3 Potential Impacts on Special Aquatic Sites (Subpart E)
6.3.1 Sanctuaries and Refuges: There are no designated sanctuaries and/or
refuges within the South Terminal project area.
6.3.2 Wetlands: A total of 0.18 acres of salt marsh wetlands will be permanently
filled as part of the creation of the confined disposal facility/marine terminal. Also,
approximately 0.88 acres of salt marsh may be adversely affected by secondary impacts from the
construction and operation of the facility. In addition, one small freshwater wetland on Parcel 49
of the site, approximately 0.1 acre in area, will be filled.20
Tidal wetlands: Federally jurisdictional tidal wetlands at the project location consist of an
emergent salt marsh system, situated directly within and adjacent to the proposed location of the
CDF. This area was delineated during the June 28, 2012 site investigation, and a report
submitted to EPA on July 11, 2012 (MassDEP 2012c). Due to the late date of the submission of
this report, EPA has not had adequate time to complete its review and confirm revised areal
estimates of the salt marsh areas, including a newly identified south salt marsh area (Salt Marsh
2). Areal estimates in the recent report indicate a smaller area of salt marsh present at Salt Marsh
1 than had been previously described by the Commonwealth. For the purposes of the draft
determination, the previously submitted estimate of the areal extent of Salt Marsh 1 is being used
for-assessment of impacts, combined with the areal estimate for the newly identified Salt Marsh
2 presented in,the July 11, 2012 report. Areal estimates will be revised after EPA has completed
review and confirmation of the new wetland delineation. For the purposes of the draft
determination, the salt marsh resources present are estimated to be approximately 1.06 acres in
area. Soil sampling indicates that the wetland soils are contaminated with PCBs and metals
20 On July 12, 2012, the Commonwealth informed EPA that there is a 0.4 acre freshwater wetland on one of the
properties that may become incorporated into the terminal site. MassDEP 2012d. There is insufficient information
available for EPA to determine the potential impacts of filling this wetland or appropriate mitigation at this time.
EPA will evaluate this issue further once the Commonwealth determines whether the parcel will be incorporated
into the site, and will ensure appropriate mitigation is developed consistent with the requirements discussed herein
before making a final decision on the project.
31
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy •
Appendix E
(MassDEP 2012, Appendix 36, Tables 2A and 2E). Wetland vegetation present.includes
Spartina alternaflora, and trace amounts of Salicornia virginiana. '
Functions and values associated with this system include groundwater discharge, flood flow
alteration, fish and shellfish habitat, shoreline stabilization, and wildlife habitat.
Freshwater wetlands: A site investigation to characterize freshwater resources was conducted
on June 28, 2012, and a report submitted to EPA on July 11, 2012. According to the report, fresh
water resources are very limited at the project location, comprised of one small vegetated
wetland located north of the existing paved area on Parcel 49, approximately 4,600 square feet
21
(0.1 acre) in area. The proposed project will result in filling this wetland.
This disturbed wetland has formed in a depressional area within the existing fill on site.
Evidence of hydrology supporting this wetland is present. Soils consist of significantly disturbed
urban fill. While no sampling data has been provided characterizing soils within this wetland,
soil sampling conducted in the general vicinity of the wetland indicates that the wetland soils are
likely to be contaminated with PCBs and metals (MassDEP 2012, Appendix 39, Table 1).
Wetland vegetation consists primarily of Phragmites australis (common reed), an invasive
species.
Functions and values associated with this wetland include groundwater recharge/discharge,,
floodflow alteration, sediment/toxicant retention, and wildlife habitat. However, these wetland
functions and values are limited due to the small size and degraded nature of the wetland system
and the surrounding landscape.
Wetland mitigation: The Commonwealth submitted a Conceptual Mitigation Plan to provide
compensatory mitigation for unavoidable direct and secondary impacts to the various resources
affected by the project. MassDEP 2012 at 313-339 and referenced appendices. The Conceptual
Mitigation Plan proposes to provide compensatory mitigation for the project's impacts to
wetlands through wetland restoration and enhancement in the vicinity of the existing tidal
tributary adjacent to the Hurricane Barrier (the Successional Marsh mitigation work). In
addition, a pedestrian/bike path is proposed adjacent to the wetland restoration area, to provide
public access and some educational benefit.
The existing tidal tributary currently provides few ecological services, and is degraded by
sediments contaminated with PCBs, SVOCs and metals, as well as the presence of invasive plant
21 As noted in footnote 7 above, EPA considers this wetland to be adjacent to a traditional navigable water and
therefore subject to federal jurisdiction.
32
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
species and trash. The proposed mitigation will entail the removal of contaminated sediments
and replacement with clean substrate from the CAD cell #3 excavation. A new low flow channel
will be constructed to maintain transport of tidal flow and storm water.22 The rip rap and fill on
the western side of the channel will be removed, and the area regraded to support low marsh,
high marsh and transitional tidal wetland vegetation. These areas will be planted with Spartina
altefnaflora (low marsh); Spartina patens, Solidago sempervirens, Iva frutescens, Morella
pensylvanica, Hibiscus moschuetos (high marsh); and Panicum virgatum , Iva frutescens,
Ammophila brevigulata, and Prunus maritima (transitional zone).
The Commonwealth also proposes to install a hooded catch basin or a trash screen at a local
storm water outfall to reduce trash inflow from that source. EPA recommends that both
improvements be installed. While the trash.screen would be effective at removing larger trash
and debris, the hooded catch basin would have the added benefit pf reducing the potential
discharge of oil and other floatable contaminants in the storm water. It is important that both of
these infrastructure improvements be regularly maintained to assure their effectiveness.
Pending submission and review of additional information, EPA has tentatively concluded that
the proposed wetland restoration and enhancement project and infrastructure improvements will
provide adequate compensatory mitigation to address the lost or impaired functions and values of
the 0.1 acre freshwater wetland and 0.18 acre salt marsh areas to be filled by the proposed
project. It will result in the removal of contaminated sediments and a potential source of
pollutants. It will result in the removal of fill and rip rap, replacing it and restoring the area with
natural wetland substrates. It will also remove invasive plant species and replace them with a
more diverse and desirable assemblage of native species.
Wetlands functions and values that would be replaced or enhanced include: groundwater
discharge; floodflow alteration; fish and shellfish habitat; sediment/toxicant retention; floodflow
alteration; shoreline stabilization; and, enhanced wildlife habitat. Additional wetland functions
and values provided by the wetland restoration and enhancement project include production
export and recreational and educational components.
Lastly, the proposed infrastructure improvements will contribute to improved water quality, and
help prevent degradation of the restoration area.
As noted above, the Commonwealth's most recent reports regarding on-site wetland resources
22 The Corps of Engineers is reviewing the channel design to assure there will be no adverse effect on the operation
of the Hurricane Barrier. EPA will coordinate with the Corps to make sure any concerns are addressed before
EPA's final decision on the project.
33
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford.Harbor State Enhanced. Remedy
Appendix E
and impacts were submitted to EPA on July 11, 2012 (MassDEP 2012c) and July 12, 2012
(MassDEP 2012d), leaving inadequate time for complete review prior to the issuance of the draft
determination. EPA will conduct additional review of these reports and any required
supplemental information before making a final decision on the project, which may result in the
need for modifications to the proposed Compensatory Mitigation Plan, including the Invasive
Species Management Plan. Also, based on these reviews, additional monitoring of the site's
existing salt marsh areas may be necessary to ensure that no secondary impacts to these
resources are occurring as a result of the construction and operation of the facility, and to inform
the implementation of any necessary corrective actions.
6.3.3 Mudflats:. The amount of existing mudflat areas within the South Terminal
project area could not be verified based upon the documentation within the Commonwealth's
subject application (MassDEP 2012). However, EPA assumes that a small portion of the
existing intertidal shoreline areas include unvegetated intertidal mudflats, A total of 1.94 acres
of intertidal shoreline will be impacted as part of the construction of the South Terminal Project.
Intertidal shoreline areas will be permanently filled as part of the construction of the South
Terminal/Confined Disposal Facility. Intertidal shorelines and mudflats typically provide similar
functions and values (benthic habitat, fish foraging habitat, etc.). Therefore, EPA believes that
the Commonwealth's intertidal shoreline mitigation proposals (see Section 7.3 below) will create
and/or enhance functions and values similar to mudflats.
6.3.4 Vegetated Shallows: EPA is unaware of any eelgrass beds or other .
vegetated shallow areas within the South Terminal project area.
6.3.5 Coral Reefs: There are no coral reefs within the South Terminal project
area.
6.3.6 Riffle and Pool Complexes: The South Terminal project area is located
within an estuarine portion of New Bedford Harbor. Therefore, there are no riffle and pool
complexes within the project area.
6.4 Human Use Characteristics (Subpart F)
6.4.1 Effects on Municipal and Private Water Supplies: There are no local
water supply wells or reservoirs located within the South Terminal project area.
6.4.2 Recreational and Commercial Fisheries Impacts: According to the New
Bedford Harbor Development Commission, the New Bedford Commercial Fishing Fleet
currently is comprised of approximately 500 vessels, 120 of which are transient vessels. Due to
current fishing restrictions, commercial fishing vessels average 15 trips per year. Therefore, the
34
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy ^
Appendix E
New Bedford Commercial Fishing Fleet averages around 7,500 trips per year (MassDEP 2012 at
275).
In addition, there are approximately 1,500 recreational and charter vessels in New Bedford
Harbor. If each of these vessels takes a trip once every other week between May and October,
each vessel would average 12 trips per year and there would be a total of approximately 18,000
trips per year for the New Bedford recreational fleet (MassDEP 2012 at 274).
All of the dredging and filling activities associated with the construction of the South Terminal
Project will take place within the Lower New Bedford Harbor, upriver of the New Bedford
Harbor Hurricane Barrier. All waters upstream of the New Bedford Harbor Hurricane Barrier
are part of EPA's Fish Closure Area #1. Fish, lobsters, and shellfish caught in this area are not
safe for human consumption. Therefore, construction within this area will not negatively affect
existing recreational and commercial fishing areas within the Lower New Bedford Harbor. In
addition, the frequency of construction vessel traffic to and from the South Terminal site through
the New Bedford Harbor Hurricane Barrier is expected to be minor and to not substantially affect
navigational access to the port.
Some mitigation work associated with the South Terminal Project will occur outside of the New
Bedford Hurricane Barrier (see Section 7.3). This proposed work includes filling associated with
the creation of the 22.73 acre winter flounder spawning habitat and the 4.47 acre intertidal
shoreline area as well as the enhancement of the 14.91 acre near-shore, shallow, sub-tidal area;
arid the reseeding of shellfish. These mitigative measures will be located in areas without
substantial fisheries resources outside of the main navigation channels or in areas temporarily
closed to shellfishing. These mitigation projects should not substantially.affect recreational or
commercial fisheries users.
6.4.3 Effects on Water Related Recreation: The construction of the South
Terminal/Confined Disposal Facility will involve filling a portion of the existing Gifford Street
channel. In addition, the dredging of the navigational channel to access South Terminal will
displace some existing boat moorings. The project design for the South Terminal Project .
includes plans to realign the channel accessing the Gifford Street boat ramp and to dredge two
subtidal areas in order to create/enhance adjacent recreational mooring areas. This work will
have a long-term positive impact to local recreational users.
The Gifford Street boat ramp parcel has been designated as one of the ancillary properties for
South Terminal. This site will be actively used as a lay down area for storing wind turbine
components, when the South Terminal facility is supporting the construction of offshore wind
turbine projects. The Gifford Street boat ramp will have limited access during these times.
However, when the South Terminal facility is used as a more conventional marine terminal, the
35
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Gifford Street boat ramp will be reopened for full recreational boating access.
Construction vessel traffic to and from the South Terminal site through the New Bedford Harbor
Hurricane Barrier is expected to be minor and to not substantially affect general recreational
patterns in this area. The Commonwealth has indicated that New Bedford Harbor is generally
considered to be severely under-utilized by boat traffic (MassDEP 2012 at 276).
6.4.4 Aesthetic Impacts: During the construction phase of the South Terminal
Project,,construction equipment will have a short-term negative aesthetic impact on the project
area. Over the course of this project, the South Terminal project site will be converted from a
demolished mill property to an active marine terminal, similar in appearance to adjacent
waterfront properties. Whether these aesthetic changes are positive or negative impacts is a
subjective judgment.
6.4.5 Effects on Parks, National and Historical Monuments, National
Seashores, Wilderness Areas, Research Sites, and Similar Preserves: The New Bedford
Whaling National Historical Park is a collection of upland and waterfront properties that abuts
the South Terminal project area. Principal waterfront parcels associated the national historical
park include the Wharfinger Building on Pier 3; the Tonnessen Park, the Coast Guard Park, and
the Schooner Ernestina on or adjacent to the State Pier; as well as the Bourne Counting House
adjacent to Merrill's (Homer's) Wharf. All of these properties are located at the north end of the
South Terminal project area. Construction proposed for areas adjacent to these properties is
limited to maintenance dredging of the New Bedford Harbor Federal Navigation Project
("FNP"). This work is not expected to have a substantial impact on the New Bedford Whaling
National Historic Park.
6.5 Secondary Impacts on Aquatic Resources (40 C.F.R. § 230.11)
Secondary impacts are effects on an aquatic ecosystem that are associated with a discharge of
dredged or fill materials, but do not result from the actual placement of the dredged or fill
material (40 C.F.R. § 230.11(h)). A number of potential secondary impacts are discussed below.
6.5.1 Storm Water Runoff: Secondary impacts from storm water runoff
associated with the construction of the South Terminal Project include the following:
• Storm water runoff from excavation, stockpiling and fill areas could cause an
increase in suspended solids and turbidity, phosphorus, and toxics, including heavy metals and
organic compounds.
Storm water runoff from construction vehicle washing, maintenance and storage
refueling areas could contribute oil, grease and fuel and foaming.
36
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
The Commonwealth has proposed to manage construction consistent with requirements in EPA's
2012 Construction Storm Water General Permit and the Massachusetts Stonnwater Handbook, as
described in Section 5.1 above. Specific measures proposed to minimize water quality impacts
due to secondary impacts include: . '
• Storm water in the project area, which currently infiltrates and flows overland
(sheet flow) towards the harbor will be temporarily collected in temporary detention basins to
remove suspended solids. Detention basins will allow infiltration, with overflow discharging to
the harbor. . • ' '
Existing storm water drainage pipes, which carry street runoff and limited runoff
from the project area, will be modified, strengthened and/or replaced to ensure the continued
function of existing storm water infrastructure during and after construction.
Since the design for the terminal, for its initial purpose of an offshore renewable energy support
terminal, anticipates that 90%; of the completed terminal will be covered with crushed stone or
other pervious cover, EPA expects little or no increase in storm water runoff volume following
construction. Nevertheless, compliance with design standards included in the Massachusetts
Stormwater Handbook, as required by 310 C.M.R. 10.00, will ensure that best management
practice technologies are part of the storm water management system for whatever volume of
storm water is generated by this facility.
If the terminal is repurposed at a later date, re-design of the site with additional paved areas or
buildings will be subject to usual state and local oversight and permitting.
6.5.2 Dredging: The largest quantity of secondary impacts will result from the
proposed dredging associated with the construction of South Terminal. As proposed, 53.7 acres
of seafloor will be disturbed by dredging. Over 7 acres of winter flounder spawning habitat will
be eliminated by deepening the seafloor beyond their preferred spawning depths. Another 8.46
acres of winter flounder spawning habitat will be dredged and routinely impacted by tug and
vessel traffic at the terminal. The vast majority (>75%) of the projected shellfish impacts will
occur within the dredge footprint. The replacement of these lost resources is discussed in detail
in the Compensatory Mitigation section of this document, Section 7.3.
In addition to habitat loss, dredging has the potential to create adverse impacts on water quality
and associated effects from elevated turbidity on fish benthic species. To minimize these
impacts, the Commonwealth has proposed performance standards consistent with its 401 Water
Quality Certification regulations for dredging (Appendix A of MassDEP's June 18, 2012
ARARs letter). Among other things, these performance standards provide for the use of
protective measures such as silt curtains, and the "environmental" bucket on the dredge to
minimize water quality impacts. They also establish turbidity levels that must be satisfied.
Based on prior dredging conducted in this system using similar control technologies, total
37
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
suspended solids (TSS) concentrations downstream and outside of the silt curtains were
generally below 50 mg/1, and corresponding turbidity measurements were approximately 20
NTUs. Massachusetts' performance standards allow incremental changes in turbidity levels
compared to background conditions. Both the performance standards and actual data from prior
dredging projects within this system produced TSS concentrations well below what could be
considered an acute threshold. Larval river herring may well be the most sensitive life stage of
the most sensitive species to suspended sediment exposure. In laboratory experiments, larval
herring did not experience any significant mortality after a 16 hour exposure to 200 mg/1 of
suspended sediment (Griffin et al., 2012). This magnitude of exposure and duration is likely
greater than anything they could be exposed to in New Bedford Inner Harbor, so EPA believes
that dredging with the aforementioned control techniques can be done with limited impacts, to the
water column. Monitoring will be conducted during construction to ensure that the
Commonwealth's dredging performance standards are met.
6.5.3 Proliferation of Invasive Species: The construction of this marine terminal
will result in the placement of new solid fill within the marine environment. The bulkhead of the
terminal and the numerous pilings all represent new hard substrate that will over time support
marine growth. International vessels represent an important vector for the spread of non-native
or invasive species (Keller et al., 2011). Non-native species will be carried in ballast water, and
can also be transported on the hull and the ship superstructure (Keller et al., 2011). Even though
the Commonwealth has indicated that the international vessels are unlikely to need to carry
ballast and no ballast water discharges will be allowed in the harbor, the potential for transport
on the ship structure itself combined with new hard substrate at the terminal site represents an
elevated risk of the spread of invasive species. To minimize this risk, EPA is proposing to
require the Commonwealth to conduct an annual survey of the bulkhead and a subset of the
pilings for the presence of non-native species. If a new invasive species (a species that has not
been previously documented in New England) is found during one of the surveys, the
Commonwealth would be required to consult the necessary experts on the new organism to
determine the ecological risk posed by the species and to devise a control plan. Assuming that
the new introduced species poses an ecological risk and the control plan is adequate, the
Commonwealth would be required to implement the plan. Subsequently, the monitoring
frequency would be increased/adjusted to assess the success of the control plan.
In addition, there is a potential for invasive species to intrude into the successional marsh
compensatory mitigation area. EPA has reviewed the Commonwealth's proposed Invasive
Species Management Plan ("ISMP") (MassDEP 2012a, Attachment P), and believes that a
modified ISMP, in conjunction with the requirements of the Compensatory Mitigation Plan
described in Section 7.3, would be adequate to control the spread of invasive plant populations
within the proposed wetland restoration area that could prevent successful mitigation of impacts
to wetlands. Such modified ISMP must be incorporated as part the Commonwealth's
Compensatory Mitigation Plan, which will be a condition of EPA's authorization.
38
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
6.5.4 Vessel Related Impacts: EPA believes that the vessels that will be involved
in either construction or use of this facility have the potential to cause a variety of secondary
impacts on aquatic resources:
Ballast water intake: The Commonwealth projects that the offshore wind development project
anticipated to be the first user of the marine terminal will receive 26 international vessels within
a 12 month period delivering components for wind turbine construction (MassDEP 2012). After
offloading, these vessels will take on water from New Bedford Inner Harbor to use as ballast to
stabilize the ship for the return trip across the Atlantic Ocean. The uptake of ballast water results
in the entrainment of fish eggs and larvae associated with that volume of water. The
Commonwealth estimates that each vessel will take on between 200,000 and 300,000 gallons of
water for ballast (MassDEP 2012b). This would result in an annual removal of between
5,200,000 and 7,800,000 gallons per year. This volume of water represents less than 1% of the
total volume of New Bedford Inner Harbor and thus likely represents a negligible potential
impact to planktonic larvae and eggs within New Bedford Inner Harbor.
Discharge of bilge water: Large commercial vessels routinely carry bilge water, which is
generally contaminated with a variety of contaminants including oil, degreasers and other
cleaners. The Commonwealth has stated that no bilge water will be discharged from vessels
docked at the terminal (MassDEP 2012). The Commonwealth states that if bilge water needs to
be offloaded, it will be safely transferred to tanker trucks of licensed hazardous waste handlers
(MassDEP 2012). Thus, EPA believes this represents a negligible potential secondary impact.
Increased boating traffic. Section 6.5.6.2 of the Commonwealth's January 2012 submission
(MassDEP 2012) provides a vessel traffic analysis for existing and proposed maritime uses
within New Bedford Harbor. This vessel traffic analysis documents that currently there are
approximately 30,555 trips in and out of New Bedford Harbor per year. The main navigation
users of New Bedford Harbor include recreational and charter vessels (18,000 trips per year),
commercial fishing vessel fleet (7,500 trips per year), harbor work boats (2,000 trips per year),
Government vessels (1,500 trips per year), and ferry ships (1,300 trips per year). Post-
construction the South Terminal will likely add around 22 cargo ship trips and 65 jack-up barge
trips per year when the facility is used to support off-shore wind energy projects and around
three cargo vessel trips per week when the facility is used as a marine terminal. The addition of
these 87 and 156 trips constitute a 0.28% and 0.5% increase in marine traffic entering and
leaving New Bedford Harbor. The Commonwealth indicates that New Bedford Harbor is
generally considered a severely under-utilized harbor. Therefore, EPA believes that the
proposed increase in boating traffic associated with the South Terminal Project represents a
negligible secondary impact.
Interference with other adjacent boating users: The proposed South Terminal project area is
adjacent to the Gifford Street boat ramp. This boat ramp serves as an access point for trailered
recreational vessels, and a number of recreational boats are moored in this general area. During
- 39
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
the construction of the South Terminal Project and when the facility is used to support off-shore
wind energy projects, use of the Gifford Street boat ramp will be greatly curtailed. The Gifford
Street boat ramp site has beeri identified as an ancillary part of the overall South Terminal
Project. Wind turbine components such as windmill blades will be stored on this parcel. The
Commonwealth has designed the South Terminal Project to. include a realignment of the Gifford
Street Navigation Channel as well as improvement dredging of adjacent mooring areas. This
work will allow recreational crafts to navigate around commercial vessels moored at the South
Terminal facility (MassDEP 2012). When the South Terminal facility converts to a normal
marine cargo terminal, use of the Gifford Street boat ramp will be restored. Based upon this
information, EPA believes that the interference with other adjacent boating users associated with
the South Terminal Project will be a negligible secondary impact. ,
Increase in oil spill risk: Section 6.5.6.1 of the Commonwealth's January 2012 submission
package (MassDEP 2012) provides an oil spill analysis for existing and proposed maritime uses
within New Bedford Harbor and for regional navigation networks. Like the vessel traffic
analysis discussed above, the oil spill analysis is principally based upon the number of trips made
by various classes of vessels. However, the different classes of vessel are weighted differently
using a "gallons of petroleum exposure" ("GPE") measure. The GPE measure approximates the
total volume of petroleum that could be released at one time for a specific vessel. Along this
line, vessels will with larger petroleum tanks have a larger GPE measure. The Commonwealth's
oil spill analysis documents that the current New Bedford Harbor Oil Spill Threat is
1,777,039,500 GPE. The vessel classes which contribute most to the oil spill threat include large
non-tank vessels (1,725,000,000 GPE), oil tankers and tank barges (43,250,000 GPE), and the
commercial fishing fleet (7,500,000 GPE). When the South Terminal facility is used to support
off-shore wind energy projects, approximately 2,787,500 GPE will be added to the oil spill threat
[(22 annual cargo vessel trips X 75,000 gallons per vessel [or 1,650,000 GPE]) + (65 annual
jack-up barge (via tug) trips X 17,500 gallons per tug [1,137,500 GPE])]. This will result in a
0.156% increase in the New Bedford Harbor oil spill risk. When the facility is used as a marine
terminal approximately 11,700,000 GPE will be added to the oil spill threat [156 annual cargo
vessel trips X 75,000 gallons per vessel]. This will result in a 0.65% in the New Bedford.Harbor
oil spill risk. Similar increases in oil spill risks are expected to regional navigation networks
transited by these vessels. Based upon the small scope of potential increases in oil spill risk over
existing conditions, EPA believes that the South Terminal Project will have a negligible
secondary impact on oil spill risk.
6.6 Cumulative Impacts on the Aquatic Ecosystem (40 C.F.R. § 230.11(g)):
Cumulative impacts are the changes in an aquatic ecosystem that are attributable to the collective
effect of a number of individual discharges of dredged or fill material. Although the impact of a
particular discharge may constitute a minor change in itself, the cumulative effect of numerous
such piecemeal changes can result in a major impairment of the water resources and interfere
with the productivity and water quality of existing aquatic ecosystems.
40
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
In evaluating potential cumulative impacts from the South Terminal Project on the aquatic
ecosystem, EPA concentrated its review on past and potential impacts to the Upper and Lower
New Bedford Harbor from discharges of dredged and fill material ("filling") that have occurred
in these areas since 1990 as well as those likely to occur in the foreseeable future. In conducting
this evaluation, we reviewed projects associated with the New Bedford Harbor Superfund Project
and associated phases of the State Enhanced Remedy, as well as public and private fill projects
authorized by the U.S. Army Corps of Engineers as pail of its Section 404 permitting process.
6.6.1 New Bedford Harbor Superfund Project: The 1998 Record of Decision
("ROD") defined a selected clean-up remedy for Polychlorinated Biphenyl ("PCB")
contaminated sediment within the Upper and Lower New Bedford Harbor areas and an interim
remedy for two areas of localized contamination in Outer New Bedford Harbor, south of the
New Bedford Hurricane Barrier. The 1998 ROD identified cleanup levels for the harbor areas
and discussed disposal options to permanently isolate the contaminated sediment from human
and environmental receptors. The preferred disposal alternative recommended in the 1998 ROD
involves the construction of four confined disposal facilities ("CDF"). A total of three CDFs
(CDFs A-C) were proposed in New Bedford Upper Harbor and one CDF (CDF D) was proposed
in New Bedford Lower Harbor. These CDFs would be constructed by creating enclosed
containment cells and filling portions of New Bedford Harbor. PCB-contaminated sediment
would be permanently isolated within these containment cells and appropriately capped. Based
upon the conceptual CDF design drawings in the 1998 ROD, the construction of the four
proposed CDFs would have filled at least 52 acres of New Bedford Harbor (CDF A - 11 acres of
open water fill, CDF B - 10 acres of open water fill, CDF C - 12 acres of open water fill, and
CDF D - 19+ acres of open water fill).
Since finalizing the 1998 ROD, EPA has continued to work to identify cost effective ways to
dispose of PCB-contaminated sediments. The EPA has issued four Explanations of Significant
Differences ("ESD"), which modify the remedy. As a result of the ESDs, one of the four CDFs
-CDF D (the largest) — was eliminated and the contaminated material that was to be contained in
this CDF is now disposed of offsite or in a confined aquatic disposal ("CAD") cell. The onsite
processing and off-site disposal does not involve filling waters of the U.S. To date, EPA has only
constructed only one CDF facility, the Sawyer Street CDF. This pilot CDF facility has been
used for the temporary disposal of contaminated dredged sediments. As part of the construction
of the Sawyer Street CDF, approximately 3.0 aces of waters of the United States were filled.
Future dredging of PCB-contaminated sediment as part of the New Bedford Harbor Superfund
Project may involve dredged material disposal alternatives such as the future construction of
23 See Lower Harbor CAD Cell, Fourth Explanation of Significant Differences for New Bedford Harbor Superfund
Site OU1, March 2011, Final at www.epa.gov/nbh.
41
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
CDFs or CAD cells. Such disposal alternatives would involve filling impacts, but it is difficult at
present to estimate the manner, size, and location of such filling.
6.6.2 State Enhanced Remedy: At the Commonwealth's request, after public
review and comment, EPA integrated navigational dredging and disposal into its 1998 ROD
decision as a state enhanced remedy ("SER") pursuant to the provisions of Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") and the National Oil
and Hazardous Substance Pollution Contingency Plan ("NCP"). PCB-contamination levels in
the sediment in these navigational dredging areas are typically below the clean-up levels defined
in the 1998 ROD, but they are unsuitable for offshore disposal. In January 2010, the
Commonwealth requested inclusion of this proposed South Terminal Project in the SER. EPA
review of that request is the subject of this Draft Determination.
Both dredging and disposal projects can be reviewed under the SER process. In the past, the
Commonwealth has reviewed a range of potential disposal options for the unsuitable
navigational dredged material. In the 2000 New Bedford Fairhaven Municipal Harbor Plan, a
total of six potential CDF sites were identified within the Upper and Lower New Bedford Harbor
area (see MassDEP 2012, Figure 9). These six proposed CDFs, as shown on Figure 9, would fill
approximately 189 acres of the Lower New Bedford Harbor. They included 1) the Railroad
CDF, a modified version of CDF D, (12 acres of open water impacts); 2) Popes Island North
CDF (21 acres of open water impacts); 3) Popes Island South CDF (16 acres of open water
impacts); 4) State Pier CDF (23 acres of open water impacts); 5) the two Fairhaven South CDFs
(46 acres of open water impacts); and 6) Seawall West, a previous configuration for the South
Terminal area (71 acres of open water impacts).24 To date, only CAD cells have been used to
contain unsuitable navigational dredged material. In constructing CAD cells, areas of harbor
bottom are excavated to create a containment cell. Unsuitable dredged material is then placed in
the containment cell and after some time is allowed for dredged material settlement, a cap is
installed at an elevation slightly below adjacent harbor bottom. .
During Phases II and III of the SER, the Commonwealth used a pre-existing borrow pit arid
constructed CAD Cells #1 and #2 to dispose of navigational dredged PCB-contaminated
sediment. All of these CAD cells are located to the north of Pope's Island in the Lower New
Bedford Harbor. CAD Cell #3, proposed as part of this South Terminal Project, is located in this
same area. The siting of these CAD cells as well as future CAD cells was the subject of the 2003
Dredged Material Management Plan, Final Environmental Impact Report for New Bedford and
24 Except for this proposed South Terminal project and those projects already included in the completed Phase II and
Phase III SER work plans, EPA's conclusions and findings in this Draft Determination are not an endorsement of
nor an integration into the New Bedford Harbor State Enhanced Remedy of any particular project listed in the New
Bedford/Fairhaven Municipal Harbor Plans.
42
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Fairhaven, ("DMMP") issued by the Massachusetts Office of Coastal Zone Management.25
Disposal of unsuitable dredged material into CAD cells involves filling impacts, but these
impacts are considered temporary, because the cells' caps will eventually be recolonized with
benthic organisms similar to those on adjacent harbor bottom areas. No long-term impacts to the
water column are expected with capped CAD cells.
Finally, the May 2010 New Bedford Fairhaven Municipal Harbor Plan discusses the possible
beneficial re-use of "clean" dredged material for the rehabilitation of bulkheads and Waterfront
Development Shoreline Facilities ("WDSF") within New Bedford and Fairhaven. In
constructing WDSFs, clean dredged material may be used to create solid fill piers to replace
dilapidated wharfs and/or bulkheads. The facilities would be considered permanent fills since
they involve converting waters of the United States to non-jurisdictional upland areas. WDSF
fills are meant to support expanded and/or rehabilitated waterfront uses, similar to the earlier
CDF plans. However, the WDSF fills are proposed to be smaller than the CDFs since they are
designed to retrofit the existing waterfront uses rather than to dispose of a set volume of dredged
material.
The Executive Summary concept plan for the May 2010 New Bedford Fairhaven Municipal
Harbor Plan identifies potential WDSF sites at South Terminal (4 acres of open water impacts),
New Bedford State Pier (< 1 acre of open water impacts), North Terminal (12 acres of open
water impacts), Popes Island Terminal (4 acres of open water impacts) sites in New Bedford, as
well as at the Union Wharf site (<1 acre of open water impacts) in Fairhaven, Massachusetts.
Both the North Terminal and the Popes Island Terminal WDSF projects appear to rely on the
replacement of the Route 6 Bridge to be practicable. Therefore, only the New Bedford State Pier
and the Union Wharf WDSF projects appear to represent potential cumulative impacts, although
at the present time it is not possible to determine whether either project is likely to occur in the
foreseeable future.
6.6.3 Corps of Engineer's Permitted Projects in Upper and Lower New
Bedford Harbor: In an attempt to objectively evaluate the cumulative impacts associated with
recent filling projects in New Bedford Harbor not associated with the Superfund Program and the
SER, EPA reviewed Section 404 permits issued by the U.S. Army Corps of Engineers ("Corps")
for fills within New Bedford Harbor. Our file review indicated that since 1990 the Corps has
issued a total of twenty Section 404 fill authorizations within the Upper and Lower New Bedford
Harbor in New Bedford, Fairhaven, and Acushnet, Massachusetts.
25 The DMMP may be found in the Administrative Record for this Draft Determination and at
www. mass. gov/cam/dredgereports/2003/feirnm-f.htm.
43
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
These twenty Section 404 fill projects included shoreline stabilization work, construction of boat
ramps, installation of intake/outlet pipes, environmental restoration projects, coal tar remediation
work, and installation of submarine cables for the Route 6 Bridge. The total impact for these
twenty projects was between 1-2 acres of waters of the United States. For the most part, these
projects involved minor fill activities (< 1,000 square feet of fill). Larger impact (> 5,000 square
feet of fill) projects were limited to coal tar remediation work, environmental restoration
projects, and a few of the bulkhead projects.
6.6.4 Summary: In conducting a cumulative impacts analysis for the South
Terminal Project, EPA reviewed Section 404 projects authorized by the Corps of Engineers over
the past twenty years, as well as past filling associated with the New Bedford Harbor Superfund
Project and the State Enhanced Remedy. We also considered filling projects likely to be
completed in the foreseeable future. Based upon this review, we determined that larger fill
projects within New Bedford Harbor have been associated with dredged material disposal work
(i.e., CAD cells and CDFsj related to the New Bedford Harbor Superfund Project or the
associated State Enhanced Remedy. Recently, the trend in designing cost-effective dredged
material disposal projects has been to either avoid permanent filling impacts (with CAD cells) or
to minimize the size of CDFs and/or WDSFs. Additional fill projects that would be subject to
Corps permitting under Section 404 are likely to continue to be few and minor in scope. Based
upon this information, EPA has tentatively determined that the cumulative effect of fills that we
have reviewed herein do not, collectively, represent a major impairment of the aquatic
ecosystem.
7.0 Mitigation (40 C.F.R. §§ 230.10(d), 230.70-77 and 230.90-99; 33 C.F.R. Part 332)
For a proposed project to comply with § 230.10(d) of the 404(b)(1) Guidelines, impacts to waters
of the U.S. must be avoided and minimized to the extent practicable, and all appropriate and
practicable steps must be taken to compensate for unavoidable impacts.
7.1 Avoidance/Minimization: EPA has determined that the basic project purpose for
this project is to develop a marine terminal that will provide infrastructure capable of supporting
the development of offshore renewable energy facilities as well as other future uses (such as
container shipping, break-bulk cargo shipping, bulk cargo shipping, short-seas shipping). As a
water-dependent activity, some impacts to waters of the United States are unavoidable. The
Commonwealth developed feasibility criteria in order to identify key parameters that are
essential for a marine terminal site to be practicable for supporting the development of off-shore
renewable energy facilities (see Section 4.3 above for more details; see also MassDEP 2012,
MassDEP 2012a, and MassDEP 2012b). EPA's tentative determination that the South Terminal
alternative is the least environmentally damaging practicable alternative ("LEDPA") is set forth
in Section 4 above.
44
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
The Commonwealth worked with agencies with expertise in the construction of offshore wind
energy projects and the regional shipping industry as well as with the Northeast Marine Pilots
Association and the New Bedford Tug Operators to ensure that the design for the South Terminal
Project is effective in supporting offshore renewable energy facilities as well as other marine
terminal uses. Existing site-specific resources such as the New Bedford Harbor Federal
Navigation Project ("FNP") were used to enhance commercial navigation access while
minimizing impacts to waters of the United States.
As the design for the South Terminal Project has progressed, the Commonwealth has suggested
measures to minimize adverse impacts to waters of the United States. For example, the current
design for the South Terminal docking area incorporates a section of pile-supported wharf
channelward of the proposed bulkhead. Since construction cranes do not need to access this
waterside section of the South Terminal, it was possible to incorporate a pile-supported structure
rather than a solid-fill wharf in this area. While this existing subtidal area will be deepened,
armored with scour protection, and substantially shaded by the overhead pile-supported wharf, it
will not be completely filled. This modification resulted in a 0.67 acre reduction in the overall
impacts associated with the South Terminal project. The Commonwealth also made adjustments
to the original terminal design in order to avoid construction impacts to the adjacent paleosol
formation.
EPA has tentatively determined that the Commonwealth has designed the footprint of the South
Terminal Project in a manner that minimizes the impacts to the aquatic environment to the extent
practicable in light of the basic project purpose.
7.2 Measures to minimize adverse impacts: There are a number of measures that the
Commonwealth will be implementing during the construction of the South Terminal Project in
order to minimize adverse impacts on aquatic resources within New Bedford Harbor. Refer to
the DRAFT conditions section (Section 20) of this decision document for details on these
additional measures to be taken.
7.3 Compensatory Mitigation: The Commonwealth submitted a Conceptual Mitigation
Plan (MassDEP 2012; MassDEP 2012a) to provide compensatory mitigation for unavoidable
direct and secondary impacts to the various resources affected by the project. EPA's evaluation
of the Conceptual Mitigation Plan is described below.
7.3.1 Winter Flounder Spawning Habitat: Inshore stocks of winter flounder
have a preferred spawning depth of < 5 -m (Pereira et al., 1999). The Commonwealth proposes to
place clean sand excavated from the CAD cell dredging to fill in an area to the south of the
hurricane barrier to reduce the existing depths (MassDEP 2012a, Appendix A„ Draft Plan Sheets
P-5.1.and X-5.1). The intent is to change the depth of areas that are >5m to final depths that are
within the preferred depth range of winter flounder spawning. The Commonwealth proposes to
45
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
create new winter flounder spawning habitat over 22.73 acres of the seafloor, to compensate for
the loss of winter flounder habitat associated with dredging and with filling to construct the CDF.
The proposed project will result in between 16.2 and 20.21 acres of impact to winter flounder
habitat (MassDEP 2012a).26 As a result, the Commonwealth has committed to a slightly greater
than 1 to 1 replacement ratio of winter flounder spawning habitat (MassDEP 2012a). An
additional benefit resulting from this work is the isolation of existing contaminants present in the
sediments at this location. Currently, PCB concentrations range from 1 to 8 ppm throughout this
area, so placement of clean sand will eliminate exposure of elevated levels of PCBs to the
biological community.
This placement of fill represents a temporary impact to the marine environment. As soon as the
filling stops, mobile crustaceans will return to the newly filled footprint. Lobsters, crabs and shrimp
use chemoreception to detect prey and they are drawn to the "odor" of disturbed sediments. It is
believed that they view the presence of disturbed sediments as an opportunity to forage for exposed
and defenseless benthic infauna. The benthic infaunal community will begin colonizing the newly
exposed sediments during the next spawning event. Typically, opportunistic shallow burrowing
polychaetes are the first organisms to colonize an area. The paradigm for benthic community
ecology follows that the quick reproducing small polychaetes comprise the initial or Stage I benthic
community Rhoads and Germano, 1986). The Stage II community features slightly larger
polychaetes and some small shellfish that typically are slightly deeper burrowers than what is found
in Stage I (Rhodes and Germano, 1986). The final step in the successional process is the Stage III
community. This community is characterized by large deep burrowing bivalves and larger
polychates (Rhoads and Germano, 1986). Full recovery to a Stage, III successional community will
likely take 3-7 years (Rhoads and Germano, 1986). The finfish community will begin using the
area once the placement of sand has been completed. Winter flounder and other species that may.
utilize the bottom for spawning will be able to use the bottom within the mitigation footprint shortly
after the sand has been placed.
During construction, the Commonwealth will conduct a bathymetric survey to ensure that the
appropriate depths are achieved. In addition, the bathymetric survey will be repeated annually
for 5 years post-construction to determine if the newly placed fill is eroding from the site. -
Monitoring of the biological success of this mitigation effort will occur through a targeted
sampling of winter flounder eggs. Winter flounder eggs will be collected using an epibenthic
sled in multiple locations within the project footprint arid at several control stations. Sampling
will begin prior to construction to establish a baseline and continue for 5 years post construction.
The data will be statistically analyzed for differences between sampling locations and through
time.
26 The extent of impacts will depend on whether the potential extension of the deep draft dredging area to the south
and the potential widening of the deep draft channel (discussed above in Section 2) occur.
46
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
The bathymetric survey is intended to assess the stability of the newly created habitat, while the
monitoring of winter flounder eggs assesses whether the created habitat is supporting the
intended functions. EPA proposes to include a requirement that if, after 5 years the bathymetric
survey detects a significant loss of habitat due to sediment erosion/migration, the
Commonwealth must place additional material to ensure that winter flounder spawning habitat is
replicated in a 1 to 1 ratio.
Winter flounder that spawn in the New Bedford Harbor/Buzzards Bay areas are considered part
of the Southern New England/Mid-Atlantic inshore stock. This stock has been decimated and
currently the population is estimated to be at 10% of what is needed to support a commercial
fishery (ASMFC, 2009). There is currently a commercial fishing moratorium on this species,
and recreational fishing has been virtually eliminated as well (ASMFC, 2009). Due to the dire
condition of this formerly commercially important species, EPA views the protection of habitats
critical to its survival as essential. Recovery of winter flounder stocks will not occur without
protection of spawning and nursery habitat. The Commonwealth's mitigation proposal will
replace at a slightly greater than 1 to 1 ratio the quantity of winter flounder habitat impacted by
the proposed project. EPA expects that the quality of the newly created spawning habitat may be
superior to what it is replacing as it will be built with clean material free from any PCB
contamination. EPA has tentatively determined that this mitigation proposal adequately offsets
the unavoidable impacts to winter flounder spawning habitat.
7.3.2 Intertidal habitat creation and near-shore, shallow, sub-tidal
enhancement: The Commonwealth has proposed to place clean sand excavated from the CAD .
cell dredging in an area referred to as the OU-3 Hot-Spot (MassDEP 2012a, Appendix A„ Draft
Plan Sheet P-5.2 and X-5.1). In the nearshore segment of the project, seafloor depths will be
raised to create or enhance 4.47 acres of intertidal habitat, to compensate for the 1.94 acres of
intertidal habitat that will be filled to construct the CDF. In addition, clean sand will be placed in
this area to enhance shallow subtidal habitat of 14.91 acres to compensate for filling and
dredging impacts to subtidal habitat. This action will also serve to remediate the sediments
within that acreage. Currently, PCB concentrations in these sediments range from 1-8 ppm.
Remediation of these , sediments will eliminate exposure of elevated levels of PCBs to the
biological community. As described in greater detail above, this fill placement would result in a
temporary adverse impact to the marine environment. Overall, however, there would be an
overall beneficial effect from the proposed habitat creation and enhancement.
The Commonwealth will conduct bathymetric surveys during construction to assure that the
appropriate elevations are achieved. This is particularly critical for the creation of intertidal
habitat, where misjudging depths by mere inches will result in subtidal habitat, not the preferred
intertidal habitat. In. addition, bathymetric surveys will be conducted annually for 5 years post
construction to examine patterns of sediment erosion or accretion. EPA proposes to include a
requirement that if, after 5 years there have been significant changes to the newly created habitat
47
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
(especially the created intertidal area), the Commonwealth must supplement the area with
additional clean sand to ensure that the area of habitat created is equivalent to the amount of
habitat lost.
Near shore shallow sub-tidal and intertidal habitats serve as important refuge areas for many
species of fish and invertebrates (Whitlatch, 1982). Juvenile winter flounder and a host of other
fish species use these shallow areas to avoid predation from larger fish that cannot access these
shallow habitats (Pereira et al., 1999; Whitlatch, 1982). Due to the ecological importance of
these habitats, EPA has tentatively determined that equivalent compensation is appropriate. The
Commonwealth's proposal will compensate for these impacted habitats in a slightly greater than
1 to 1 ratio (MassDEP 2012a). EPA expects that the newly created habitat will be of superior
quality than the area it is replacing, because it will be free of PCBs and other contaminants. EPA
has tentatively determined that this proposed mitigation will adequately address the proposed
unavoidable impacts to intertidal and near shore shallow sub-tidal habitats.
7.3.3 Shellfish mitigation: The Commonwealth has pledged to replace the
shellfish resource lost by the construction of this project. It proposes to seed 9,817,121 quahogs,
equivalent to the estimated loss number, in multiple locations south of the hurricane barrier. The
exact locations have yet to be selected, and this would be carried out over a 3-5 year period. The
seed clams that the Commonwealth proposes to use are in the 20-25 mm width range, and they
have an expected 40% survival rate (MassDEP 2012). After each area of seafloor is seeded, the
Commonwealth would administratively close that area for 3 years to allow the seeded clams to
mature.
Shellfish are a commercially important species and serve a number of important ecological roles
as well. Clams are prolific filter feeders that can improve water quality through their normal
feeding activities (Doering and Oviatt, 1986). Doering and Oviatt (1986) observed that quahogs
can filter up to 5 liters (1.32 gallons) of water per hour, though the actual rate can vary with clam
size and water temperature. At this filtration rate, the projected number of quahogs impacted by
the project could filter more than 300 million gallons of water a day. This represents a
substantial ecological service. In addition, the siphons of hard clams are important prey items
for winter flounder and other demersal fish species (Pereira et al., 1999). Nearly 10 million
shellfish represent a substantial prey base for demersal fish.
EPA has tentatively determined that the Commonwealth's proposal does not adequately
compensate for the ecological value of the lost shellfish resources. The seed clams are smaller
than the clams that will be lost and thus do not filter as much water, nor do they represent an
equivalent prey value for demersal fish as the individuals that will be lost. Accounting for the
40% survival rate of the seed clams, EPA has tentatively concluded that 24,542,803 seed
quahogs should be placed in multiple transplant locations to offset an equivalent number of
individuals that will be lost to construction. The figure of 24,542,803 is derived by multiplying
the number of clams lost by 2.5. This approach accounts for the 40% survival rate (MassDEP,
48
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
2012) that is to be expected for seed, clams of this size. Recognizing that cost and availability of
seed clams may be an issue, EPA has tentatively determined to allow the Commonwealth to
conduct this work over a 10 year period. .
7.3.4 Wetland mitigation: The Conceptual Mitigation Plan proposes to provide
compensatory mitigation for the project's impacts to wetlands through wetland restoration and
enhancement in the vicinity of the existing tidal tributary adjacent to the Hurricane Barrier. In
addition, a pedestrian/bike path is proposed adjacent to the wetland restoration area, to provide
public access and some educational benefit.
The existing tidal tributary currently provides few ecological services, and is degraded by
sediments contaminated with PCBs, SVOCs and metals, as well as the presence of invasive plant
species and trash. The proposed mitigation will entail the removal of contaminated sediments
and replacement with clean substrate from the CAD cell excavation. A new low flow channel
0 7
will be constructed to maintain transport of tidal flow and storm water. The rip rap and fill on
the western side of the channel will be removed, and the area regraded to support low marsh,
high marsh and transitional tidal wetland vegetation. These areaswill be planted with Spartina
alternaflora (low marsh); Spartina patens, Solidago sempervirens, Iva frutescens, Morella
pensylvanica, Hibiscus moschuetos (high marsh); and Panicum virgatum , Iva frutescens,
Ammophila brevigulata, and Prunus maritima (transitional zone).
The Commonwealth also proposes to install a hooded catch basin or a trash screen at a local
storm water outfall to reduce trash inflow from that source. EPA recommends that both
improvements be installed. While the trash screen would be effective at removing larger trash
and debris, the hooded catch basin would have the added benefit of reducing the potential
discharge of oil and other floatable contaminants in the storm water. It is important that both of
these infrastructure improvements be regularly maintained to assure their effectiveness.
EPA has tentatively concluded that the proposed wetland restoration and enhancement project
and infrastructure improvements will provide adequate compensatory mitigation to address the
lost or impaired functions and values of the 0.1 acre freshwater wetland and 0.18 acre salt marsh
areas to be filled by the proposed project. It will result in the removal of contaminated
27 The Corps of Engineers is reviewing the channel design to assure there will be no adverse effect on the operation
of the Hurricane Barrier. EPA will coordinate with the Corps to make sure any concerns are addressed before
EPA's final decision on the project. ,
28 On July 12, 2012, the Commonwealth informed EPA that there is a 0.4 acre freshwater wetland on one of the
properties that may become incorporated into the terminal site. MassDEP 2012d. There is insufficient information
available for EPA to determine the potential impacts of filling this wetland or .appropriate mitigation at this time.
EPA will evaluate this issue further once the Commonwealth determines whether the parcel will be incorporated
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
sediments and a potential source of pollutants. It will result in the removal of fill and rip rap,
replacing it and restoring the area with natural wetland substrates. It will also remove invasive
plant species and replace them with a more diverse and desirable assemblage of native species.
Wetlands functions and values that would be replaced or enhanced include: groundwater
discharge; floodflow alteration; fish and shellfish habitat; sediment/toxicant retention; floodflow
alteration; shoreline stabilization; and, enhanced wildlife habitat. Additional wetland functions
and values provided by the wetland restoration and enhancement project include production
export and recreational and educational components.
Lastly, the proposed infrastructure improvements will contribute to improved water quality, and
help prevent degradation of the restoration area.
The Conceptual Mitigation Plan proposes that the wetlands mitigation area will be inspected by a
wetland scientist on a monthly basis during the period from April through October for the first
three years after construction, and during May and September of the fourth and fifth years after
construction. The presence and species diversity of plants will be monitored, as well as the
presence of invasive species. According to the Conceptual Mitigation Plan, invasive species will
be removed by hand, or if necessary, other control methods will .be evaluated.
In addition to the Conceptual Mitigation Plan, the Commonwealth submitted an Invasive Species
Management Plan (ISMP) (MassDEP 2012a, Attachment P). EPA believes that a modified
ISMP, in conjunction with the requirements of the Compensatory Mitigation Plan, would be
adequate to control the spread of invasive plant populations within the proposed wetland
restoration area that could prevent successful mitigation of impacts to wetlands. The ISMP,
modified as described below, must be incorporated as part the Commonwealth's Compensatory
Mitigation Plan, which will be a condition of EPA's authorization.
First, the ISMP proposes monitoring and reporting to. occur after the first, third and fifth years of
restoration. This schedule must be modified to require monitoring and reporting on an annual
basis for five years at a minimum. The ISMP monitoring and reporting should be coordinated
with the monitoring and reporting requirements of the Compensatory Mitigation Plan.
Subsequent monitoring and reporting may be required, depending upon the success of the
compensatory mitigation and the need for corrective measures in the event of unsuccessful
compensatory mitigation.
Secondly, the ISMP states that "removal of all invasive plant species around the periphery of the
restoration area is not feasible." The ISMP does not provide adequate information to support this
into the site, and will ensure appropriate mitigation is developed consistent with the requirements discussed herein
before making a final decision on the project.
50
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
statement. More detailed information must be submitted for review on the types, location and
areal extent of invasive species in the vicinity of the proposed compensatory mitigation project.
Because the presence of peripheral invasive species is likely to undermine the success of the
proposed mitigation, and because invasive species removal is common practice, the
Commonwealth must provide clear explanation and justification for its proposal to not include
removal of existing invasive species as part of its ISMP.
Lastly, the Commonwealth's most recent reports regarding on-site wetland resources and
impacts were submitted to EPA on July 11, 2012 (MassDEP 2012c) and July 12, 2012
(MassDEP 2012d), leaving inadequate time for complete review prior to the issuance of the draft
determination. EPA will conduct additional review of these reports and any required
supplemental information before making a final decision on the project, which may result in the
need for modifications to the proposed Compensatory Mitigation Plan, including the ISMP.
Also, based on these reviews, additional monitoring of the site's existing salt marsh areas may be
necessary to ensure that no secondary impacts to these resources are occurring as a result of the
construction and operation of the facility, and to inform the implementation of any necessary
corrective actions.
7.3.5 Requirements for Final Mitigation Plan: Under 40 C.F.R. § 230.94(c)), an
approved Mitigation Plan covering all components of the proposed compensatory mitigation is
required prior to final project authorization. Several requirements must be met before a final
Mitigation Plan is approved:.
• The Commonwealth must prepare a comprehensive draft Mitigation Plan and submit it to EPA
for review.
• After EPA's review and comment, the Commonwealth must prepare a final Mitigation Plan,
which must be approved by EPA prior to project authorization.
• The final Mitigation Plan will be incorporated as a condition of the authorization by reference.
• The final Mitigation Plan must include the 12 components listed below. EPA may also require
additional information as necessary to determine the appropriateness, feasibility, and
practicability of the mitigation project.
7.3.5.1 Twelve Components of a Compensatory Mitigation Plan:
1. Objectives. A description of the resource type(s) and amount(s) that will be provided, the
method of compensation (restoration, establishment, preservation etc.), and how the anticipated
functions of the mitigation project will address lost or compromised functions and values of
impacted resources.
51
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
2. Site selection. A description of the factors considered during the site selection process. This
should include consideration of onsite alternatives and practicability of accomplishing
ecologically self-sustaining aquatic resource restoration, establishment, enhancement, and/or
preservation at the mitigation project site.
-\
3. Site protection instrument. A description of the legal arrangements and instruments, including
site ownership, which will be used to ensure the long-term protection of the mitigation project
site.
4. Baseline information. A description of the ecological characteristics of the impact site and the
proposed mitigation project site. This may include descriptions of historic and existing plant
communities, historic and existing hydrology, soil conditions, a map showing the locations of the
impact and mitigation site(s) or the geographic coordinates for those site(s), and other
characteristics appropriate to the type of resource proposed as compensation. The baseline
information should include a delineation of waters of the United States on the proposed
mitigation project site.
5. Determination of mitigation credit. An explanation of how the mitigation project will provide
the required compensation for unavoidable impacts to aquatic resources resulting from the
proposed activity.
6. Mitigation work plan. Detailed written specifications and work descriptions for the mitigation
project, including: the geographic boundaries of the project; construction methods, timing, and
sequence; source(s) of water; methods for establishing the desired plant community; plans to
control invasive plant species; proposed grading plan; channel form (e.g., typical channel cross-
sections) and design discharge 9; soil management; and erosion control measures.
7. Maintenance plan. A description and schedule of maintenance requirements to ensure the
continued viability of the resource once initial construction is completed.
8. Performance standards. Ecologically-based standards that will be used to determine whether
the mitigation project is achieving its objectives.
9. Monitoring requirements. A description of parameters monitored to determine whether the
mitigation project is on track to meet performance standards and if adaptive management is
needed. A schedule for monitoring and reporting monitoring results to EPA must be included.
10. Long-term management plan. A description of how the mitigation project will be managed
after performance standards have been achieved to ensure the long-term sustainability of the
29 The work plan in this case will also need to ensure that there will be no adverse impact on the Hurricane Barrier.
52
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
resource, including long-term financing mechanisms and the party responsible for long-term
management.
11. Adaptive management plan. A management strategy to address unforeseen changes in site
conditions or other components of the mitigation project, including the party or parties
responsible for implementing adaptive management measures.
12'. Financial assurances. A description of financial assurances that will be provided and how
they are sufficient to ensure a high level of confidence that the mitigation project will .be
successfully completed, in accordance with its performance standards.
8.0 Summary of Section 404 (b) (1) Guidelines Analysis and Tentative Determination:
Based upon the analysis of the South Terminal Project, as described in Sections 4.0 - 7.0 of this
decision document, the EPA has tentatively determined that this project as currently designed
complies with the Section 404 (b) (1) guidelines with the inclusion of appropriate mitigation and
special conditions (see Section 20.0).
RIVERS AND HARBORS ACT SECTION 10 PUBLIC INTEREST REVIEW
9.0 Analysis of Beneficial and Detrimental Impacts to the Environment and the Public
Interest (33 C.F.R. § 320.4(a-r))
9.1 Public interest review factors (33 CFR 320.4(a) (1))
9.1.1 Conservation: The South Terminal Project is proposed to be constructed at
the site of the former Potomska Mills in New Bedford, Massachusetts. This project will not
result in the conservation of additional land, and it will not result in the use of lands conserved
for other purposes.
9.1.2 Economics: The South Terminal Project will have both short-term and
long-term positive economic impacts for the Port of New Bedford and adjacent communities. In
the short-term the construction of the South Terminal and the dredging of the associated
navigational channels will create short-term construction jobs. Post-construction operations at
the terminal are expected to create several hundred permanent jobs when the site is used to
support the construction of offshore wind energy projects or as a cargo terminal. Maintenance
dredging and/or deepening of the existing navigational channels will have a positive economic
impact on other existing maritime industries within the Port of New Bedford. The creation of
these maritime jobs will also result in indirect and induced economic benefits for regional
53
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
companies that support maritime companies and their workers. (MassDEP 2012 at 67-73).
9.1.3 Aesthetics: The South Terminal Project will have short-term negative
aesthetic impacts during the construction phase of this project. In the long-term, the site will be
changed from a demolished mill property to an active marine terminal, similar in appearance to
adjacent waterfront properties. Whether these aesthetic changes are positive or negative impacts
is a subjective judgment.
9.1.4 General environmental concerns: The South Terminal Project will have
both negative and positive environmental impacts. These impacts are detailed within Sections 5
and 6 above, and within this Section 9..
9.1.5 Wetlands: A total of 0.18 acres of salt marsh wetlands will be permanently
filled as part of the creation of the confined disposal facility/marine terminal. Also, i
approximately 0.88 acres of salt marsh may be adversely affected by secondary impacts from the
construction and operation of the facility. In addition, one small wetland on Parcel 49 of the site,
approximately 0.1 acre in area, will be filled.
Tidal wetlands: Federally jurisdictional tidal wetlands at the project location consist of an
emergent salt marsh system, situated directly within and adjacent to the proposed location of the
CDF. This area was delineated during the June 28, 2012 site investigation, and a report
submitted to EPA on July 11, 2012. Due to the late date of the submission of this report, EPA
has not had adequate time to complete its review and confirm revised areal estimates of the salt
marsh areas, including a newly identified south salt marsh area (Salt Marsh 2). Areal estimates
in the recent report indicate a smaller area of salt marsh present at Salt Marsh 1 than had been
previously described by the Commonwealth. For the purposes of the draft determination, the
previously submitted estimate of the areal extent of Salt Marsh 1 is being used for assessment of
impacts, combined with the areal estimate for the newly identified Salt Marsh 2 presented in the
July 11, 2012 report. Areal estimates will be revised after EPA has completed review and
confirmation of the new wetland delineation. For the purposes of the draft determination, the
salt marsh resources present are estimated to be approximately 1.06 acres in area. Soil sampling
indicates that the wetland soils are contaminated with PCBs and metals (SER 1/18/12
Application, Appendix 36, Tables 2A and 2E). Wetland vegetation present includes Spartina
alternaflora, and trace amounts of Salicornia virginiana.
Functions and values associated with this system include groundwater discharge, flood flow
alteration, fish and shellfish habitat, shoreline stabilization, and wildlife habitat.
Freshwater wetlands: A site investigation to characterize freshwater resources was conducted
on June 28, 2012, and a report submitted to EPA on July 11, 2012. According to the report, fresh
54
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
water resources are very limited at the project location, comprised of one small vegetated
wetland located north of the existing paved area on Parcel 49, approximately 4,600 square feet
30 31
(0.1 acre) in area. The proposed project will result in filling this wetland.
This disturbed wetland has formed in a depressional area within the existing fill on site.
Evidence of hydrology supporting this wetland is present. Soils consist of significantly disturbed
urban fill. While no sampling data has been provided characterizing soils within this wetland,,
soil sampling conducted in the general vicinity of the wetland indicates that the wetland soils are
likely to be contaminated with PCBs and metals (SER 1/18/12 Application, Appendix 39, Table
1). Wetland vegetation consists primarily of Phragmites australis (common reed), an invasive
species.
Functions and values associated with this wetland include groundwater recharge/discharge,
floodflow alteration, sediment/toxicant retention, and wildlife habitat. However, these wetland
functions and values are limited due to the small size and degraded nature of the wetland system
and the surrounding landscape.
Wetland mitigation: The Commonwealth submitted a Conceptual Mitigation Plan (MassDEP
2012) to provide compensatory mitigation for unavoidable direct and secondary impacts to the
various resources affected by the project. The Conceptual Mitigation Plan proposes to provide
compensatory mitigation for the project's impacts to wetlands through wetland restoration and
enhancement in the vicinity of the existing tidal tributary adjacent to the Hurricane Barrier. In
addition, a pedestrian/bike path is proposed adjacent to the wetland restoration area, to provide
public access and some educational benefit.
The existing tidal tributary currently provides few ecological services, and is degraded by
sediments contaminated with PCBs, SVOCs and metals, as well as the presence of invasive plant
species and trash. The proposed mitigation will entail the removal of contaminated sediments
and replacement with clean substrate from the CAD cell excavation. A new low flow channel
30 As noted in footnote 7 above, EPA considers this wetland to be adjacent to a traditionally navigable water and
therefore subject to federal jurisdiction.
31 On July 12, 2012, the Commonwealth informed EPA that there is a 0.4 acre freshwater wetland on one of the
properties that may become incorporated into the terminal site. MassDEP 2012d. There is insufficient information
available for EPA to determine the potential impacts of filling this wetland or appropriate mitigation at this time.
EPA will evaluate this issue further once the Commonwealth determines whether the parcel will be incorporated
into the site, and will ensure appropriate mitigation is developed consistent with the requirements discussed herein
before making a final decision on the project.
55
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
will be constructed to maintain transport of tidal flow and stormwater. The rip rap and fill on
the western side of the channel will be removed, and the area regraded to support low marsh,
high marsh and transitional tidal wetland vegetation. These areas will be planted with Spartina
alternaflora (low marsh); Spartina patens, Solidago sempervirens, Ivafrutescens, Morella
pensylvanica, Hibiscus moschuetos (high marsh); and Panicum virgatum, Iva frutescens,
Ammophila brevigulata, and Prunus maritima (transitional zone).
The Commonwealth also proposes to install a hooded catch basin or a trash screen at a local
storm water outfall to reduce trash inflow from that source. EPA recommends that both
improvements be installed. While the trash screen would be effective at removing larger trash
and debris, the hooded catch basin would have the added benefit of reducing the potential
discharge of oil and other floatable contaminants in the storm water. It is important that both of
these infrastructure improvements be regularly maintained to assure their effectiveness.
Pending submission and review of additional information, EPA has. tentatively concluded that
the proposed wetland restoration and enhancement project and infrastructure improvements will
provide adequate compensatory mitigation to address the lost or impaired functions and values of
the 0.1 acre freshwater wetland and 0.18 acre salt marsh areas to be filled by the proposed
project. It will result in the removal of contaminated sediments and a potential source of
pollutants. It will result in the removal of fill and rip rap, replacing it and restoring the area with
natural wetland substrates. It will also remove invasive plant species and replace them with a
more diverse and desirable assemblage of native species.
Wetlands functions and values that would be replaced or enhanced include: groundwater
discharge; floodflow alteration; fish and shellfish habitat; sediment/toxicant retention; floodflow
alteration; shoreline stabilization; and, enhanced wildlife habitat. Additional wetland functions
and values provided by the wetland restoration and enhancement project include production
export and recreational and educational components.
Lastly, the proposed infrastructure improvements will contribute to improved water quality, and
help prevent degradation of the restoration area.
As noted above, the Commonwealth's most recent reports regarding on-site wetland resources
and impacts were submitted to EPA on July 11, 2012 (MassDEP 2012c) and July 12, 2012
(MassDEP 2012d), leaving inadequate time for complete review prior to the issuance of the draft
32 The Corps of Engineers is reviewing the channel design to assure there will be no adverse effect on the operation
of the Hurricane Barrier. EPA will coordinate with the Corps to make sure any concerns are addressed before
EPA's final decision on the project.
56
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
determination. EPA will conduct additional review of these reports and any required
supplemental information before making a final decision on the project, which may result in the
need for modifications to the proposed Compensatory Mitigation Plan, including the Invasive
Species Management Plan. Also, based on these reviews, additional monitoring of the site's
existing salt marsh areas may be necessary to ensure that no secondary impacts to these
resources are occurring as a result of the construction and operation of the facility, and to inform
the implementation of any necessary corrective actions.
9.1.6 Historic properties: During 2010, the Commonwealth conducted
'archaeological surveys to identify historical and archaeological sites that could potentially be
impacted by the South Terminal Project. As a result of these surveys, a number of
archaeologically-sensitive "Paleosols" and a localized shipwreck were identified. (MassDEP
2012, at 107-111). The EPA has begun coordination with the Massachusetts State Historic
Preservation Officer ("MA SHPO"), the Massachusetts Board of Underwater Archaeological
Resources ("BUAR"), as well as the Wampanoag (Aquinnah) and the Mashpee Wampanoag
Tribal Historic Preservation Officers ("THPO") in an attempt to avoid or to minimize impacts to
these in-water historic properties. EPA's preliminary determination is that the South Terminal
Project will have "no adverse effect" on these in-water historic properties or any adjacent upland
historic properties. EPA will conclude coordination with the historic agencies prior to issuing a
final determination on.this project. See also Appendix G.
9.1.7 Fish and Wildlife: The South Terminal Project will result in negative
impacts to fish and wildlife habitat areas within New Bedford Harbor. All totaled,
approximately 0.18 acres of salt marsh, 0.1 acres of freshwater wetlands, and 6.67 acres of
intertidal and sub-tidal benthic habitat will be permanently impacted due to filling to construct
the CDF. Another approximately 53 acres of subtidal habitat will be temporarily impacted by the
placement of fill as part of the mitigation plan to create and enhance winter flounder spawning
habitat, intertidal area and shallow subtidal habitat, and associated with the capping of CAD cell
1 and the "Borrow Pit." In addition, approximately 53.7 acres of sub-tidal benthic habitat will be
dredged and deepened as part of plans to maintenance dredge portions of the existing New
Bedford Harbor Federal Navigation Project, to provide adequate navigational access to the South
Terminal site, to realign the Gifford Street Boat Ramp Channel, to deepen areas within the North
and South Mooring Areas, and to create CAD Cell #3. These impacts are discussed more fully
in Sections 5 and 6 above and in Appendix H.
The proposed filling and dredging associated with the South Terminal Project will directly
impact habitat areas for crustaceans, mollusks and other aquatic organisms that are prey species
for finfish, birds, and mammal species (see Section 6.2.2 for more details). Less mobile
organisms (worms, gastropods, mollusks, etc.) will likely be completely removed (by dredging)
or buried (by filling) by this work. These populations are expected to be lost throughout the
.57
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
South Terminal construction area. More mobile organisms (crabs, lobsters, shrimp, etc.) will
likely suffer some mortality as well, but their mobility will allow some individuals to leave or
avoid the construction area. These survivors as well as juvenile and adult fish will be able to forage
and/or spawn in adjacent unimpacted habitat areas. The South Terminal Project is expected to
result in the permanent loss of approximately 20.21 acres of winter flounder spawning and nursery
habitat and the loss of 9-10 million individual shellfish. If blasting is required to remove
fractured bedrock from the South Terminal/Confined Disposal Facility area, this could have a
negative impact on fish eggs and larvae, as well as aquatic invertebrates (crustaceans,
gastropods, mollusks, etc.), juvenile and adult fish, amphibians, and reptiles.
As part of the South Terminal Project approximately 247,100 cubic yards of Polychlorinated
Biphenyl ("PCB") and heavy metal contaminated sediment will be removed from the South
Terminal project area, adjacent navigational channels, and confined aquatic disposal ("CAD")
Cell #3 and placed into CAD cells #2 and #3 (MassDEP 2012a, Appendix S). Removal and
segregation of these contaminated sediments will result in long-term positive impacts for fish
and wildlife habitat within New Bedford Harbor. As part of its proposed mitigation package for
the South Terminal Project, the Commonwealth proposes to create 22.73 acres of shallow water
Winter Flounder spawning habitat, 14.91 acres of near-shore shallow, sub-tidal habitat, and 4.47
acres of intertidal habitat in Outer New Bedford Harbor to mitigate for winter flounder spawning
habitat losses. In addition, the Commonwealth will seed shellfish areas in the Outer New
Bedford Harbor to mitigate for unavoidable shellfish impacts associated with this project.
As noted in Section 5.3 above, EPA engaged in informal consultation with the U.S. Fish and
Wildlife Service and has completed a final Biological Assessment (BA) of the potential effects
of the construction and long-term operation of the project on the endangered roseate tern,
attached as Appendix K. For the reasons discussed in the final BA, EPA has concluded that the
proposed NBH-South Terminal project may affect the roseate tern, but is unlikely to adversely
affect the species. Also as noted in Section 5.3, the National Marine Fisheries Service has
informed EPA that the endangered Atlantic sturgeon may be present in the vicinity of New
Bedford Harbor. EPA is currently seeking additional technical assistance from NMFS and is in
pre-consultation analysis with it. In that process, EPA and NMFS are discussing time of year
restrictions, project sequencing options and mitigative dredging techniques which could greatly
lessen or eliminate any potential adverse effects to the species. Prior to the issuance; of a final
decision on the impacts of the project, EPA will enter informal consultation with NMFS, which
will include preparation of a Biological Assessment, and will seek concurrence with EPA's
findings regarding the potential impacts to the sturgeon from the construction and operation of
the project.
9.1.8 Flood hazards: The New Bedford Harbor area is actively protected from
coastal flooding by the existing New Bedford Hurricane Barrier, located directly downriver of
the South Terminal project site. If the New Bedford Hurricane Barrier is closed and heavy rain
58
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
is expected, flood waters from the Acushnet River need to be stored within the New Bedford
Inner Harbor Basin. The Commonwealth has documented that approximately 27.33 acre-feet of
flood storage will be lost due to filling impacts associated with the South Terminal/Confined
Disposal Facility (MassDEP 2012, at 112-114). In a December 16, 2010 e-mail, the New
England District of the U.S. Army Corps of Engineers had requested that the Commonwealth
develop and implement a plan to mitigate for the 27.33 acre-feet of lost flood storage. Recently,
the Commonwealth has documented that the New Bedford Harbor Trustee Council is in the
process of developing plans for a Marsh Island Restoration Project, which will create up to 39.67
acre-feet of flood storage within the New Bedford Harbor Basin (MassDEP 2012a, at 41-43;
MassDEP 2012b at 6 and Attachment B). EPA has tentatively determined that the proposed
Marsh Island Restoration Project will adequately mitigate for unavoidable floodplain storage
losses associated with the South Terminal Project: See Appendix L for more details on this
issue.
9.1.9 Floodplain values: The construction of the South Terminal confined
disposal facility will result in the loss of approximately 27.33 acre-feet of flood storage within
the New Bedford Hurricane Barrier basin. As stated in Section 9.1.8, the New England District
of the U.S. Army Corps of Engineers previously requested that the Commonwealth develop and
implement a plan to mitigate for this lost flood storage. EPA has tentatively determined that the
proposed Marsh Island Restoration Project will adequately mitigate for unavoidable floodplain
storage losses associated with the South Terminal Project. Therefore, the South Terminal Project
will not result in substantial long-term negative impacts on floodplain values within New
Bedford Harbor.
9.1.10 Land use: The South Terminal Project is proposed to be located on
properties within New Bedford's designated port area. The basic project purpose is to create a
marine terminal capability of supporting offshore renewable energy projects. This basic project
. purpose is consistent with current land-use patterns and is unlikely to require substantial changes
in adjacent land-use patterns.
9.1.11 Navigation: As part of the South Terminal Project, the Commonwealth
proposes to improve commercial navigation access to the South Terminal site by widening and
deepening the existing commercial navigation channel to this site. This proposed dredging will
provide positive short-term and long-term navigation impacts for commercial and recreational
vessels in the vicinity of the South Terminal site. In addition, the Commonwealth may need to
maintenance dredge portions of the existing New Bedford Harbor Federal Navigation Project
("FNP"). This proposed maintenance dredging will provide short-term and long-term positive
navigation impacts for commercial vessels accessing the South Terminal site as well as other
maritime properties along the New Bedford shoreline, south of the Route 9 Bridge.
59
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
9.1.12 Shore erosion and accretion: The construction of the South
Terminal/Confined Disposal Facility will result in the filling of approximately 0.18 acres of salt
marsh, 0.1 acres of freshwater wetlands, as well as 6.67 acres of intertidal and sub-tidal areas.
The existing shoreline within the South Terminal project area is mostly vegetatively stabilized.
The current design for the South Terminal Project includes the installation of steel-sheet
bulkheads with associated scour protection to stabilize the fill/dredge areas. Although the
proposed shoreline realignment and deeper navigation channels may obstruct and/or improve
local circulation/tidal flushing patterns, these impacts on shoreline erosion and accretion are
expected to be minor compared to circulation obstruction impacts associated with the adjacent
New Bedford Hurricane Barrier.
9.1.13 Recreation: The construction of the South Terminal Project is expected
to have short-term negative impacts and long-term positive impacts to recreational users in the
New Bedford Lower Harbor within and directly adjacent to the project area. The construction of
the South Terminal/Confined Disposal Facility includes filling a portion of the existing Gifford
Street boat ramp Channel. In addition, the dredging of an improved commercial channel to
access the South Terminal site will displace some existing recreational boat moorings. The
project design for the South Terminal Project includes plans to realign the Gifford Street boat
ramp Channel and to dredge two areas to create/enhance two adjacent recreational'mooring
areas. These mitigative measures will result in a long-term positive impact to local recreational
users.
The Gifford Street boat ramp parcel has been designated as one of the ancillary properties for
South Terminal. This site will be actively used as a lay down area for storing wind turbine
components, when the South Terminal facility is supporting the construction of offshore wind
turbine projects. The Gifford Street boat ramp will have limited access during these times.
However, when the South Terminal facility is used as a more conventional marine terminal, the
Gifford Street boat ramp will be reopened for full recreational boating access.
Construction vessel traffic to and from the South Terminal site through the New Bedford
Hurricane Barrier is expected to be minor and to not substantially affect general recreational
patterns in this area. The Commonwealth has indicated that New Bedford Harbor is generally
considered to be severely under-utilized by boat traffic (MassDEP 2012 at 276).
9.1.14 Water supply and conservation: The South Terminal Project will not
affect local water supply systems and/or conservation: There are no local water supply wells or
reservoirs located within the project area.
9.1.15 Water quality: The development of the South Terminal property will not
60
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
have any long term effect on water quality. Potential short term impacts will be mitigated
through the use of dredging and.filling practices that minimize discharge of excavated sediments
into the surrounding water column, stockpiling practices that minimize erosion of stockpiled
materials, and construction site management practices that control pollution runoff during rain
events.
9.1.16 Energy needs: The redevelopment of the South Terminal property will
result in increased energy use during the construction phase of this project (short-term) as well as
during its operation as a marine terminal (long-term). However, the basic purpose for this
project is to construct a marine terminal capable of supporting the construction of regional
offshore renewable energy projects. Development of wind energy projects will make a
substantial contribution to allowing utility companies to meet state renewable energy mandates
as well as to providing cleaner sources of electricity to the New England regional electric grid.
9.1.17 Public Safety: The South Terminal Project is not expected to affect public
safety.
9.1.18 Food and fiber production: This project is not expected to affect food
and/or fiber production within New Bedford Harbor. While there is shellfish and finfish habitat
within the South Terminal project area, all waters upstream of the New Bedford Harbor
Hurricane Barrier are part of the Fish Closure Area #1. Fish, lobsters, and shellfish caught in this
area are not safe for human consumption. In addition, this project will not involve any
permanent impacts to agricultural or silvicultural lands.
9.1.19 Mineral needs: Construction of the South Terminal Project will
necessitate the use of various mineral resources. However, it is not anticipated that this project
will result in the short-term or long-term depletion of any mineral resources.
9.1.20 Consideration of property ownership: EPA's determination related to
the South terminal project does not convey any property rights to the Commonwealth. The
^ Commonwealth will need to purchase parcels and/or to acquire easements in order to utilize
state, municipal, and/or private properties as part of the main South Terminal site and/or
ancillary parcels. The facility operator will need to be careful in how wind turbine components
are stored on the main South Terminal site and on ancillary parcels, in order to ensure that uses
on adjacent properties are not substantially impacted. For example, vehicular access along
Gifford Street will need to be maintained at all times and there should be no inadvertent impacts
to the adjacent radio tower rigging and/or underground utilities. With this in mind, the South
Terminal Project is not expected to result in any substantial property ownership impacts.
61
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
9.2 Additional Public Interest Review General Criteria (33 C.F.R. § 320.4(a) (2)):
9.2.1 The relative extent of the public and private need for the proposed
work: The Commonwealth's basic project purpose for this project is to construct a multi-use
marine terminal capable of supporting the installation of off-shore renewable energy projects
such as off-shore wind farms. The Commonwealth's application provides strong evidence of the
public and private need for maintenance and improvement dredging of these portions of New
Bedford Harbor as well as for the development of such a marine terminal (MassDEP 2012).
9.2.2 The practicability of using reasonable alternative locations and/or
methods to accomplish the objective of the proposed structure or work: The
Commonwealth's submission for the South Terminal Project discusses feasibility criteria for
siting a multi-use marine terminal capable of supporting the installation of off-shore renewable
energy projects. These screening criteria included attributes such as proximity to future off-
shore wind facilities, total wharf and upland yard area, berthing space, site availability, as well as
site access horizontal and vertical clearances. A total of eight possible terminal locations, within
and outside of New Bedford Harbor, were evaluated against the screening criteria. As discussed
in Section 4 above, EPA has tentatively determined that the Commonwealth has demonstrated
that the South Terminal site is the least environmentally damaging practicable alternative.
9.2.3 The extent and permanence of the beneficial and/or detrimental effects
that the proposed structures or work may have on the public and private uses for which the
area is suited: The Commonwealth's proposal for the South Terminal Project includes the
filling of waters of the United States, including jurisdictional wetlands, in order to construct the
South Terminal/Confined Disposal Facility area with associated scour protection. As part of the
construction of the South Terminal Project approximately 0.18 acres of salt marsh, 0.1 acres of
freshwater wetlands, and 6.67 acres of tidal waters and will be filled. In addition, the
Commonwealth proposes to cap the existing Borrow Pit and CAD 1 with clean dredged material
and dispose of contaminated dredged material into CAD cell 2, resulting in 10.8 acres of
temporary impacts. Finally, filling will occur in conjunction with creating and/or enhancing
4.47 acres of intertidal habitat, 22.73 acres of winter flounder spawning habitat, and 14.91 acres
of near-shore, shallow, sub-tidal habitat.. The temporary and permanent impacts associated with
this filling are discussed more fully in Sections 5 and 6 above and in Appendix H.
The South Terminal project also includes improvement dredging to provide adequate
commercial navigational access to the South Terminal site, to realign the Gifford Street boat
ramp Channel, and to deepen areas within the North and South Mooring Areas; dredging to
construct the CAD cell #3 cell; and possible maintenance dredging of portions of the existing
New Bedford Harbor Federal Navigation Project. All dredging will result in the removal of
PCB-contaminated sediments with construction areas. Over.53.7 acres of sub-tidal benthic
62
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
habitat will be dredged and deepened as part of this work. The impacts associated with these
dredging activities are discussed more fully in Sections 5 and 6 above.
The construction of the South Terminal confined disposal facility will result in the loss of
approximately 27.33 acre-feet of flood storage within the New Bedford Hurricane Barrier basin.
As stated in Section 9.1.8, the New England District of the U.S. Army Corps of Engineers
previously requested that the Commonwealth develop and implement a plan to mitigate for this
lost flood storage. Recently, the Commonwealth has documented that the New Bedford Harbor
Trustee Council is in the process of developing plans for a Marsh Island Restoration Project,
which will create up to 39.67 acre-feet of flood storage within the New Bedford Harbor Basin.
MassDEP 2012a, at 41-43; MassDEP 2012b at 6 and Attachment B. EPA has tentatively
determined that the proposed Marsh Island Restoration Project will adequately mitigate for
unavoidable floodplain storage losses associated with the South Terminal Project. See Appendix
L for more details on th'is issue.
The Commonwealth's mitigation proposals have been designed to compensate for impacts to .
specific habitat types. The successional marsh mitigation project involves the removal of PCB-
contaminated sediment and partial filling/reshaping the cross-section of a tidal tributary/New
Bedford Hurricane Barrier drainage way, in order to restore and to enhance up to 1.9 acres of salt
marsh resource areas. The 4.47 acre intertidal mitigation project is meant to compensate for
unavoidable impacts to intertidal areas associated with the construction of the South
Terminal/Confined Disposal facility. As part of this work near-shore shallow sub-tidal areas will
be partially filled with clean sand excavated from the navigational dredging. This beneficial use
of dredged material will provide a secondary benefit by improving the cap to the OU-3 pilot cap
area. The Commonwealth proposes to compensate for permanent impacts to winter flounder
spawning habitat areas with the creation of the 22.73 acre winter flounder spawning habitat
mitigation area as well as the 14.91 acre near-shore, shallow, sub-tidal mitigation area. Both
these project involve partial filling of sub-tidal areas with clean sand excavated from
navigational dredging. Finally, the Commonwealth has proposed to compensate for unavoidable
impacts to shellfish species by reseeding shellfish in areas of the Outer New Bedford Harbor (for
more detailed discussion of the Commonwealth's mitigation proposals and EPA's additional
requirements, please see Section 7.3 above).
EPA has worked with the Commonwealth to avoid and to minimize impacts to waters of the
United States, including jurisdictional wetlands, to the extent practicable. EPA has tentatively
determined that the proposed mitigation with additional EPA conditions will adequately offset all
temporary and permanent unavoidable impacts to waters of the United States.
9.3 Public Interest Tentative Determination: EPA has considered all relevant public
interest review factors associated with the proposed South Terminal Project in New Bedford,
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
Massachusetts. Factors considered included conservation, economics, aesthetics, general
environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards,
floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and
conservation, water quality, energy needs, safety, food and fiber production, mineral needs,
consideration of property ownership and in general, the needs and welfare of the people. After
weighing the positive and negative impacts associated with this project, EPA has preliminarily
determined that the South Terminal Project is not contrary to the overall public interest. NOTE:
EPA will need to conclude coordination and/or consultation with Federal and State resource
agencies in several areas before a FINAL determination can be made as to whether this project
can be authorized as part of the State Enhanced Remedy.
OTHER FEDERAL LAWS AND EXECUTIVE ORDERS
10.0 Endangered Species Act: For detailed discussion, see Appendix I - Endangered Species
Act and Appendix K - Final Biological Assessment. Summary information also available in
Section 5.3 of this Appendix.
11.0 Essential Fish Habitat: For detailed discussion, see Appendix H - Essential Fish Habitat.
Summary information on winter flounder also available in Section 7.3 .1 of this Appendix.
12.0 Fish and Wildlife Coordination Act: For detailed discussion, see Appendix O. Summary
information also available in Sections 5 and 6 of this Appendix.
13.0 Historic Properties: For detailed discussion, see Appendix G - National Historic
Preservation Act. Summary information on historic properties also available in Section 9.1.6 of
this Appendix.
14.0 Consultation with Indian Tribes: For detailed discussion, see Appendix G - National
Historic Preservation Act.
15.0 Environmental Justice Issues (E.0.12898): For detailed discussion, see Appendix M -
Environmental Justice.
16.0 Floodplains E.O. (E.O. 11988): For detailed discussion, see Appendix L - Floodplain
Management Executive Order. Summary information on floodplain management issues also
available in Section 9.1.8 and Section 9.1.9 of this Appendix.
17.0 Wetlands E.O. (E.O. 11990): Executive Order 11990 requires Federal agencies to take
64
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
actions to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance
the natural and beneficial values of wetlands. This order emphasizes the importance of avoiding
undertaking new construction located in wetlands unless there is practicable alternative to that
construction, minimizing the harm to wetlands if the only practicable alternative requires
construction in the wetland, and providing early and adequate opportunities for public review of
plans and proposals involving new construction in wetlands.
There is a 4,600 square foot (0.1 acre) freshwater depressional wetland as well as a 1.06 acre salt
marsh wetland within the South Terminal/Confined Disposal Facility project area. In designing
the South Terminal Project, the Commonwealth was able to minimize direct fill impacts to only
0.18 acre of salt marsh by carefully choosing the alignment of the facility bulkhead. The
remaining 0.88 acre of existing salt marsh will be directly adjacent to the facility bulkhead, but
the Commonwealth has explained why it does not believe that salt marsh erosion (secondary
impacts) will occur. MassDEP 2012b at 6-7. The 0.1 acre freshwater wetland is located within
the middle of the proposed fill area and there are no practicable alternatives to avoid these
wetland impacts. The Commonwealth proposes to mitigate these 0.28 acres of unavoidable
wetland impacts through the Successional Marsh mitigation work, which involves regrading an
existing tidal tributary/ New Bedford Harbor Hurricane Barrier drainageway in order to create
and/or to restore up to 1.9 acres of tidal marsh areas. Members of the general public will have an
opportunity to comment on these proposed wetland impact and/or mitigation during the public
comment period for this DRAFT decisional document.
18.0 Invasive Species E.O. (E.0.13112): For detailed discussion, see Appendix N and Sections
6.5 and 7.3 of this Appendix.
19.0 Section 176(C) Of The Clean Air Act General Conformity Rule Review: EPA's General
Conformity Rule, 40 C.F.R. Part 93, Subpart B, implements section 176(c) of the Clean Air Act
for non-attainment areas and maintenance areas. It requires that federal actions, unless exempt,
conform with the federally approved implementation plans. EPA has analyzed the impacts on air
quality associated with the construction of the South Terminal Project for conformity
applicability pursuant to that General Conformity Rule. EPA has determined that such impacts
will not exceed de minimis levels of direct or indirect emissions of a criteria pollutant or its
precursors, and are exempted by 40 C.F.R. § 93.153. Any later indirect emissions are generally
not within EPA's continuing program responsibility and generally cannot be practicably
controlled by EPA. For these reasons a conformity determination is not required for EPA's
authorization of this project.
SPECIAL CONDITIONS
20.0 Conditions
65
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
20.1 Conditions to be met before EPA's Final Decision:
1. The Commonwealth shall conduct and submit to EPA a modeling study to examine the
potential lethal and sublethal effects of noise generated by blasting and pile-driving associated
with the proposed project on the Atlantic sturgeon.
2. EPA has not had sufficient time to review the additional wetlands information submitted on
July 11 and 12, 2012. Additional monitoring requirements or other conditions may be necessary
to ensure appropriate avoidance, minimization and mitigation of impacts to wetland resources.
3. The Commonwealth must prepare a comprehensive draft Mitigation Plan and submit it to
EPA for review.
4. After EPA's review and comment, the Commonwealth must prepare a final Mitigation Plan,
which must be approved by EPA prior to project authorization.
5. The final Mitigation Plan will be incorporated as a condition of the authorization by
reference.
6. The final Mitigation Plan must include the 12 components listed below:
a. Objectives. A description of the resource type(s) and amount(s) that will be provided,
the method of compensation (restoration, establishment, preservation etc.), and how the
anticipated functions of.the mitigation project will address lost or compromised functions
and values of impacted resources.
b. Site selection. A description of the factors considered during the site selection process.
This should include consideration of onsite alternatives and practicability of
accomplishing ecologically self-sustaining aquatic resource restoration, establishment,
enhancement, and/or preservation at the mitigation project site.
c. Site protection instrument. A description of the legal arrangements and instrument
including site ownership that will be used to ensure the long-term protection of the
mitigation project site.
d. Baseline information. A description of the ecological characteristics of the impact site
and the proposed mitigation project site. This may include descriptions of historic and
existing plant communities, historic and existing hydrology, soil conditions, a map
showing the locations of the impact and mitigation site(s) or the geographic coordinates
for those site(s), and other characteristics appropriate to the type of resource proposed as
compensation. The baseline information should include a delineation of waters of the
United States on the proposed mitigation project site.
66
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
e. Determination of mitigation credit. An explanation .of how the mitigation project will
provide the required compensation for unavoidable impacts to aquatic resources resulting
from the proposed activity.
f. Mitigation work plan. Detailed written specifications and work descriptions for the
mitigation project, including: the geographic boundaries of the project; construction
methods, timing, and sequence; source(s) of water; methods for establishing the desired
plant community; plans to control invasive plant species; proposed grading plan; channel
form (e.g., typical channel cross-sections) and design discharge ; soil management; and
erosion control measures.
g. Maintenance plan. A description and schedule of maintenance requirements to ensure
the continued viability of the resource once initial construction is completed.
h. Performance standards.. Ecologically-based standards that will be used to determine
whether the mitigation project is achieving its objectives.
i. Monitoring requirements. A description of parameters monitored to determine whether
the mitigation project is on track to meet performance standards and if adaptive
management is needed. A schedule for monitoring and reporting monitoring results to
EPA must be included.
i. Long-term management plan. A description of how the mitigation project will be
managed after performance standards has been achieved to ensure the long-term .
sustainability of the resource, including long-term financing mechanisms and the party
responsible for long-term management.
k. Adaptive management plan. A management strategy to address unforeseen changes in
site conditions or other components of the mitigation project, including the party or
parties responsible for implementing adaptive management measures.
1. Financial assurances. A description of financial assurances that will be provided and
how they are sufficient to ensure a high level of confidence that the mitigation project
will be successfully completed, in accordance with its performance standards.
20.2 Draft Conditions Proposed to be Incorporated into EPA's Final Decision
A. Dredging Special Conditions:
1. The project will adhere to the Performance Standards in Appendix C to this Draft
Determination and the conditions in the TSCA Determination attached as Appendix J(l) to this
Draft Determination.
67
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
2. Dredging will be done using an environmental bucket and appropriate containment devices,
such as silt curtains. • . •
3. To the maximum extent practicable, dredging will be sequenced to avoid or minimize
potential impacts to fish migration and spawning (during February-June for migration and winter
flounder spawning). If dredging is not completely stopped during February-June, it will be
restricted to deeper water to avoid winter flounder spawning habitat.
4. Ambient water column monitoring will be conducted in accordance with the
Commonwealth's proposed protocols to ensure that the Performance Standards are met.
5. Dredging in the Federal Navigation Project channel will only target areas that are above target
depths (based on the draft of the vessels to be used to support off-shore wind energy
development). The Commonwealth has indicated that it is possible that no dredging will be
necessary depending on the draft. The estimate of 15 acres is a worst case scenario.
B. Blasting Special Conditions:
1. Blasting shall only be conducted in the time period from November to February.
2. To the degree practicable, erect silt curtains to isolate large schools of fish from the blast
zone.
3. Monitoring of potential fish mortality is required for each blast. If excessive mortalities
(hundreds of fish/event) occur, then additional technologies, such as fish startle systems or
bubble curtains, may also be considered for use.
4. Plan the blasting program to minimize the total weight of explosive charges per shot and the
number of shots for the project.
5. Use angular stemming material of sufficient length in drill holes to reduce energy dispersal to
the aquatic environment.
6. Subdivide the charge, using detonating caps with delays or delay connectors with detonating
cord, to reduce total pressure. Avoid use of submerged detonation cord.
7. Use decking when possible in lengthy drill holes to reduce total pressure.
8. For seismic exploration, use non-explosive sources when possible or use linear charges for
open water shots or buried charges.
9. Used shaped charges to focus the blast energy when the submerged surface charges are
necessary, reducing energy released to the aquatic environment during demolition. N
68
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
C. Mitigation Special Conditions:
1. The Commonwealth shall implement the EPA-approved final Compensatory Mitigation Plan.
EPA approval of the Compensatory Mitigation Plan is dependent upon several requirements,
specified in the Preconditions Section above and in Section 7.3 (Compensatory Mitigation) in
Appendix E.
2. The Commonwealth shall create 22.73 acres of winter flounder spawning habitat in an area
just south of the hurricane barrier, consistent with the conceptual mitigation plan. This
represents a replacement ratio of slightly greater than 1 to 1. The sediments in the proposed area
currently possess elevated levels (1.3 to 8.2 ppm) of PCBs and are below the preferred depth
range of winter flounder spawning. Clean sand from the navigational dredging will be brought
in to cap the contaminated sediments and to elevate the depth of the bottom to a depth more
amenable to winter flounder spawning activities.
3. Extensive bathymetric monitoring of the winter flounder spawning creation area will be
undertaken to ensure that the cap does not erode with time and to measure the use of this new
habitat by winter flounder for spawning. After 5 years, the acreage of the creation area must
equal or exceed the acreage of the impacted area. If the creation area falls short of that target,
the Commonwealth must add supplementary material in a quantity to reconcile the difference.
.4. The Commonwealth shall create/enhance 4.47 acres of intertidal habitat in the OU-3 area
south of the hurricane barrier by placing clean sand from the navigational dredging into this area
of shallow subtidal habitat possessing sediments with elevated (1.3 to 8.2 ppm) PCB
concentrations. Similar to the winter flounder spawning creation, this effort would create new
habitat by changing its natural depth and would represent an improvement in habitat quality by
isolating an area of contamination.
5. Extensive bathymetric surveys will be done for 5 years post construction of the OU-3
intertidal habitat. If due to erosion or sediment migration, the final acreage of the
creation/enhancement area does not equal or exceed the impacts to intertidal areas, then the
Commonwealth must add supplemental material to reconcile the difference.
6. The Commonwealth shall remediate 14.91 acres of shallow subtidal habitat in the OU-3 area
south of the hurricane barrier by placing clean sand from the navigational dredging over
sediments contaminated with elevated (1.3 to 8.2 ppm) levels of PCBs. This effort will not result
in a change in habitat types, because the area will remain shallow subtidal habitat. It will result
in a significant improvement in sediment quality by isolating the contaminated sediments from
the environment.
7. The Commonwealth shall conduct a reseeding program of quahogs in open shellfishing areas
south of the hurricane barrier. The Commonwealth plans to use larger seed clams and expects a
69
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
survival rate of about 40%. As a result, the Commonwealth must reseed 24,542,803 clams to
offset the expected loss of 9,817,121 shellfish as a result of the project. Due primarily to the
availability of seed, this replacement will take place over a 10 year time period (or longer if
demonstrated to be necessary to achieve the mitigation goal).
8. The applicant proposes to restore/enhance a 1.9 acre salt marsh/tidal tributary in the inner
harbor, bordering the western end of the hurricane barrier. Extensive monitoring will
accompany this effort to ensure the success of the project.
The Commonwealth must implement its Invasive Species Plan with the following modifications:
First, the ISMP proposes monitoring and reporting to occur after the first, third and fifth years of
restoration. This schedule must be modified to require monitoring and reporting on an annual
basis for five years at a minimum. The ISMP monitoring and reporting should be coordinated
with the monitoring and reporting requirements of the Compensatory Mitigation Plan.
Subsequent monitoring and reporting may be required, depending upon the success of the
compensatory mitigation and the need for corrective measures in the event of unsuccessful
compensatory mitigation. Secondly, the ISMP states that "removal of all invasive plant species
around the periphery of the restoration area is not feasible." The ISMP does not provide
adequate information to support this statement. More detailed information must be submitted for
review on the types, location and areal extent of invasive species in the vicinity of the proposed
compensatory mitigation project. Because the presence of peripheral invasive species is likely to
undermine the success of the proposed mitigation, and because invasive species removal is
common practice, the Commonwealth must provide clear explanation and justification for its
proposal to not include removal of existing invasive species as part of its ISMP.
The Commonwealth also proposes to install a hooded catch basin or a trash screen at a local
storm water outfall to reduce trash inflow from that source. EPA recommends that both
improvements be installed. While the trash screen would be effective at removing larger trash
and debris, the hooded catch basin would have the added benefit of reducing the potential
^discharge of oil and other floatable contaminants in the storm water. It is important that both of
these infrastructure improvements be regularly maintained to assure their effectiveness.
9. The Commonwealth must develop and implement a post-construction monitoring plan for the
bulkhead and pilings to detect the potential presence of new invasive species. At a minimum, the
Commonwealth must conduct an annual survey of the bulkhead and a subset of the pilings for
the presence of non-native species. If a new invasive species (a species that has not been
previously documented in New England) is found during one of the surveys, the Commonwealth
must consult the necessary experts on the new organism to determine the ecological risk posed
by the species and to devise a control plan. Assuming that the new introduced species poses an
ecological risk and the control plan is adequate, the Commonwealth must implement the plan.
Subsequently, the monitoring frequency would be increased/adjusted to assess the success of the
control plan.
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
D. Any Additional Conditions Resulting from EPA's ESA, EFH, and FWCA
Consultations.
E. General Conditions:
1. Gifford Street provides the only vehicular access to the New Bedford Harbor Hurricane
Barrier. The Commonwealth must allow vehicular access along Gifford Street at all times.
2. Environmental Monitor: EPA will include conditions related to the use of an Environmental
Monitor for the duration of the construction.
3. EPA will require conformity with engineering plans and specifications.
4. EPA will include conditions similar to typical general conditions in Section 404 and Section
10 authorizations issued by the Corps of Engineers.
REFERENCE LIST
ASMFC. 2009. Status of winter flounder stocks, www.asmfc.org/managedspecies/winterflounder
Buzzards Bay National Estuary Program. 2012. Buzzards Bay Comprehensive Conservation and
Management Plan 2012 Update.
Chang S, Berrien PL, Johnson DL, Morse WW. 1999. Essential fish habitat source document:
Windowpane, Scophthalmus aquosus, life history and habitat characteristics. NOAA Tech Memo
NMFSNE 137; 32 p.
Doering, P.H..and C.A. Oviatt. 1986. Application of filtration rate models to field populations of
bivalves: an assessment using experimental mesocosms. Mar. Ecol. Prog. Ser. 31: 265-275.
Griffin, F.J., T. Dimarco, K.L. Menard, J.A. Newman, E.H. Smith, C.A. Vines, and G.N. Cherr.
2012. Larval Pacific herring (Clupea pallasi) survival in suspended sediments. Estuaries and
Coasts, DOI 10.1007/sl2237-012-9518-7.
Howes, B.L. and D.D. Goehringer. The Ecology of Buzzards Bay: An Estuarine Profile. U.S.
Fish and Wildlife Service Biological Report 31, January 1996.
Keller, R.P., J.M. Drake, M. Drew, and D.M. Lodge. 2011. Linking environmental conditions
and ship movements to estimate invasive species transport across the global shipping network. .
Diversity and Distribution. 17: 93-102.
MACZM. 1999. The New Bedford/Fairhaven Harbor Dredged Material Management Plan
71
-------
EPA Draft Determination for the Proposed South Terminal
New Bedford Harbor State Enhanced Remedy
Appendix E
(DMMP) Draft Environmental Impact Report (DEIR).
Pereira, J.J., R. Goldberg, J.J. Ziskowski, P.L. Berrien, W.W. Morse and D.L. Johnson. 1999.
Essential Fish Habitat Source Document: Winter Flounder, Pseudopleuronectes americanus, Life
History and Habitat Characteristics. NOAA Technical Memorandum NMFS-NE-138: 39 p.
Rhoads, D.C. and J.D. Germano. 1986. Interpreting long-term changes in benthic community
structure: a new protocol. Hydrobiologia. 142: 291-308.
Steimle FW, Zetlin CA, Berrien PL, Chang S. 1999a. Essential fish habitat source document:
Black sea bass, Centropristis striata, life history and habitat characteristics. NOAA Tech Memo
NMFS NE 143; 42 p.
Steimle FW, Zetlin CA, Berrien PL, Johnson DL, Chang S. 1999b. Essential fish habitat source
document: Scup, Stenotomus chrysops, life history and habitat characteristics. NOAA Tech
Memo NMFS NE 149; 39 p.
US Army Corps of Engineers. 2008. After Action Report on the Fish Kills Resulting from
Blasting in Support of Rock Removal from the Federal Navigation Project, Boston Harbor,
Massachusetts Fall 2007.
Whitlatch, R. B., 1982, The ecology of New England tidal flats: a community profile: U.S. Fish
and Wildlife Service, FWS/OBS-81/01, 125 p.
72
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix F
Determination of Compliance -
Section 402 of the Clean Water Act (33 U.S.C. §1342)
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix F
Clean Water Act ("CWA") Section 402,33 U.S.C. § 1342
Analysis of CWA Section 402 Requirements Applicable to the South Terminal Project
Section 301 of the CWA, 33 U.S.C. § 1311, generally prohibits the discharge of
pollutants into waters of the U.S. except in compliance with various sections of the Act,
including Sections 402 and 404, 33 U.S.C. §§ 1342 and 1344. Section 402 authorizes
discharges subj ect to the requirements of National Pollutant Discharge Elimination
System ("NPDES") permits. Among the discharges regulated by the NPDES permit
program are certain storm water discharges, specifically those from regulated municipal
separate storm sewers systems ("MS4"); those associated with industrial activity as
defined in 40 C.F.R. § 122.26(b)(14); those associated with construction activity as
defined in 40 C.F.R. § 122.26(b)(15); and those specifically designated as needing a
storm water NPDES permit under EPA's residual designation authority.
The NPDES-regulated discharges at the South Terminal Project that are under
consideration as part of the State Enhanced Remedy ("SER") are storm water discharges
associated with construction activities. Depending on future activities at the site upon its
completion, the facility may be subject to NPDES permit requirements for other
discharges, including storm water requirements for discharges associated with industrial
activity. The operator of the facility must obtain any required NPDES permit or general
permit authorization from EPA before any regulated discharge may commence.
Operators of projects subject to EPA's storm water construction regulations must comply
with the terms and conditions contained in EPA's Construction General Permit (CGP)
issued February 16, 2012 (http://www.epa.gov/npdes/pubs/cgp2012 finalpermit.pdf).
The CGP requires operators of construction projects to develop and implement a Storm
Water Pollution Prevention Plan (SWPPP) which documents the operation of the site and
compliance with the terms of the permit. Some key elements of the SWPPP include:
• Sequencing of activities
• Sitemap
• Identification of pollutant sources
• Identification of non-storm water discharges
• Documentation of buffer requirements
• Identification of control measures to meet water quality requirements and erosion
and sediment control requirements
• Identification of control measures for treatment chemicals (if applicable)
• Stabilization measures
• Pollution prevention measures and
• Procedures for inspections, maintenance and corrective actions. ,
A complete list of elements is found in Part 7.0 of the CGP.
Based'on the information contained in the Commonwealth's submission entitled State
Enhanced Remedy in New Bedford, South Terminal (January 18, 2012)(hereafter
MassDEP 2012), EPA has tentatively concluded that if the construction operations and
1
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix F
New Bedford Harbor State Enhanced Remedy
storm water management measures are undertaken as described, the storm water
discharges should meet the terms of the CGP. The submission contains an abbreviated
storm water plan. The plan must be updated and completed to address all of the elements
of the CGP no later than fourteen (14) days before land disturbing activities take place.
The key elements of the SWPPP are addressed as follows:
• Sequencing of activities — The overall sequencing of activities is described in
MassDEP 2012 at Part 6.5.2.4.2.
• Site map -- An aerial site map is included in MassDEP 2012 at Part 6.5.2.1. A
more detailed map must be developed before earth disturbing activities begin.
The site map must indicate the location of storm water Best Management
Practices ("BMPs"), material storage areas, pollutant sources, surface waters, etc.
(see Part 7.2.6 of the CGP).
• Identification of pollutant sources ~ Potential storm water pollutants and their
sources are identified in MassDEP 2012 at Part 6.5.2.3. The pollutants include
sediment, PCBs, heavy metals, oil, grease, fuel, paint, trash and debris, sanitary
waste, landscaping materials, and building materials.
• Identification of non-storm water discharges — The submission does not indicate
the presence of sources of non-storm water discharges. The Commonwealth must
evaluate the list of allowable non-storm water discharges in Part 1.3.d. of the CGP
to determine if any of the sources will be present and, if so, reflect that in the final
SWPPP, as well as measures to address such discharges consistent with the CGP.
|* {Documentation of buffer requirements — Part 2.1.2.1 of the CGP has a
requirement for the operator to maintain either a 50 foot vegetative buffer
between the land disturbance activity and a surface water, or to maintain the
equivalent of a 50 foot vegetative buffer. However, disturbances within 50 feet of
a surface water are exempt from these requirements if they are associated with
either construction approved under a CWA Section 404 permit, or construction of
a water-dependent structure or water access area (e.g., pier, boat ramp, trail) (see
Part 2.1.2.l.e.v. of the CGP). MassDEP's submission does not address these
requirements because they did not exist at the time the document was developed.
The Commonwealth must document in its SWPPP which portions of the site fall
within the exemptions identified above, and if there are any other portions of the
site that are not subject to the exemptions, include measures to be taken to comply
with this provision in the SWPPP.
• Identification of control measures to meet water quality requirements and erosion
and sediment control requirements — Part 6.5.2.4 of MassDEP 2012 details
sediment and erosion control BMPs that will be used. The New Bedford Harbor
is impaired for priority organics, metals, nutrients, organic enrichment/low
dissolved oxygen, pathogens, oil & grease, taste, odor, color, and objectionable
deposits. The document states that the storm water system "... will be designed
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix F
and operated to ensure that discharges from the site do not cause or contribute to a
violation of any applicable water quality standard...Id. at 245. EPA has
tentatively concluded that the BMPs are appropriate and, if implemented as
described, will be sufficient to satisfy the permit requirements.
• Identification of control measures to address treatment chemicals —The
Commonwealth's submission does not indicate whether storm water treatment
chemicals will be used. The Commonwealth must evaluate whether they will be
used and, if so, must include in the SWPPP measures to ensure that such use will
be consistent with Part 2.1.3.3 of the CGP. In addition, if the Commonwealth
intends to use cationic treatment chemicals, it must inform EPA so that the
Agency can determine what additional conditions must be satisfied, before EPA
makes a final decision about authorizing this project under the SER.
• Stabilization measures — Part 6.5.2.4.4 of MassDEP 2012 details both temporary
and permanent stabilization practices, and EPA has tentatively concluded that
these practices are appropriate and sufficient.
• Pollution prevention measures — In the section that identifies potential pollutant
sources, the document also describes BMPs and pollution prevention measures
that will be used to minimize and control the pollutants. EPA has tentatively
concluded that these measures are appropriate and sufficient.
!• :, (Procedures for inspections, maintenance and corrective actions — Part 6.5.2.4.1 of
MassDEP 2012 indicates there will be weekly inspections of silt fences and
maintenance when sediment has reached 6 inches. EPA has tentatively concluded
that these inspection and maintenance measures are appropriate and sufficient.
Part 5 of the CGP also requires operators to identify corrective actions to be taken
in the event the operator determines that a required storm water control was never
installed, was installed incorrectly, or not in accordance with the permit
requirements; the operator determines the controls are not effective; or one of the
prohibited discharges in Part 2.3.1 of the CGP has occurred. MassDEP's
submission does not address the corrective action requirements because they did
not exist at the time the document was developed. The Commonwealth must
develop corrective action measures consistent with the CGP and include them in
the SWPPP.
The Commonwealth's submission indicates that the future use of this site is "maritime
commerce." Storm water runoff from this activity could be classified under "Water
Transportation" (Standard Industrial Classification ("SIC") 44), which is a regulated
activity under the federal storm water program for discharges associated with industrial
activity. Determination of storm water requirements for the operation of the completed
site is beyond the scope of this review, which, as noted above, only addresses storm water
associated with construction activities.
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix F
To the extent that discharges from the State Enhanced Remedy facility discharge to
waters of the United States through the New Bedford municipal storm sewer system, the
operators of the facility are encourage to coordinate their storm water management
activities with those of the City.
Draft Conditions
EPA's authorization of storm water discharges associated with construction activities as
part of the State Enhanced Remedy is conditioned upon the Commonwealth's updating
and completion of its SWPPP to address all of the elements of the CGP no later than
fourteen (14) days before land disturbing activities take place, and on the
Commonwealth's implementation of the SWPPP consistent with the terms and conditions
of the CGP.
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
Determination of Compliance-
National Historic Preservation Act (16 U.S.C. §470)
36 C.F.R. Part 800
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
Summary of Activities Taken Pursuant to
National Historic Preservation Act (NHPA) and Tribal Consultation Requirements
The National Historic Preservation Act (NHPA) establishes a national program to ensure that the
impacts of impacts of growth and development on historic properties are considered as Federal
programs and projects are implemented. Section 106 of the Act requires that Federal agencies
consider the effects of their undertakings on historic properties. In particular, Section 106 states
that a Federal agency that has direct or indirect jurisdiction over a Federal undertaking shall,
prior to the undertaking, take into account the effect of the undertaking on any site, building,
structure or object that is included or eligible for inclusion in the National Registry. See 16 USC
470f. The Advisory Council on Historic Preservation (ACHP) regulations found at 36 CFR Part
800 govern the implementation of Section 106.
Prior to implementation, the New Bedford Harbor South Terminal CDF Project (the Project)
must receive approval from EPA. Under the NHPA, an "undertaking" is defined an activity
under the direct or indirect jurisdiction of a Federal agency, including any form of.Federal
approval such as a license or permit. 36 CFR § 800.16(y). EPA's approval of the Project
arguably fits within the definition of a Federal undertaking. As a result, under the NHPA, EPA
should determine what effect this approval could have on historic properties in advance of this
approval. 36 CFR § 800.3(a)! A historic property is defined as any site, building, structure or
object that is listed on or eligible for listing on the National Registry of Historic Places. 36 CFR
§ 800.16(1).
In making determinations and findings concerning the effects of an undertaking on historic '
properties, the Federal agency should consult with other parties who have a significant interest in
historic preservation issues, including but not limited to the State Historic Preservation Officer(s)
(SHPO), federally recognized Indian Tribes, and Tribal Historic Preservation Officer(s) (THPO).
See 36 CFR § 800.2(c). Agency officials may use the services of applicants, consultants or
designees to prepare information, analyses and recommendations. 3 6 CFR § 800.2(a)(3). If the
agency determines that the undertaking does hot have the potential to cause adverse effects on
historic properties, the agency official has no further obligations under the ACHP regulations.
36 CFR § 800.3(a)(1).
In accordance with the ACHP regulations and at the behest of EPA, contractors for the
Commonwealth conducted archeological investigations during the summer, fall, and winter of
2010 within all of the areas projected to be impacted by the Project, including the subtidal,
intertidal, and upland areas, to determine the impacts of this project on historic properties. The
archeological investigations are summarized in five reports, including an upland archeological
investigation report, an intertidal archeological investigation report, a subtidal archeological
investigation report, a Phase I & IB underwater archeological investigation, and a Phase II -
investigation of a located shipwreck. These reports were provided to the SHPO, Massachusetts
Board of Underwater Archeological Resources (MBUAR), and Wampanoag Tribe of Gay Head
(Aquinnah) and Mashpee Wampanoag Tribe THPOs for review and comment as they.were
issued. In addition, these studies were resubmitted to the THPOs as part of the Commonwealth's
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix G
New Bedford Harbor State Enhanced Remedy
January 18, 2012 comprehensive submittal to EPA entitled State Enhanced Remedy in New
Bedford, South Terminal.
In particular, the Commonwealth conducted cultural resources background research and prepared
an archeological sensitivity assessment of a 12 acre upland portion of the Project area in June
2010. The assessment identified one previous archeological site within or adjacent to the Project
area, while three additional historic sites are located within one kilometer of the area. No
prehistoric archeological sites have been recorded within one kilometer of the Project area. In
addition, the assessment determined that no State or National Register of Historic Places
listed/eligible properties are located within or immediately adjacent to the Project Area.
The assessment concluded that the Project area has been extensively disturbed by 19th century
industrial development. No above ground remnants of the previously recorded archeological site
within the Project area exist, and any archeological remains, if present, will be covered by
demolition rubble, fill and crushed stone to ensure that intact remains are not disturbed. As a
result, the assessment concluded that no additional cultural resources background research or
archeological subsurface investigation is necessary in the upland area. The SHPO concurred
with this conclusion and recommended additional investigation of the non-upland portions of the
Project site to evaluate the likelihood of Native American cultural resources.
Since completion of this assessment, the size of the upland area has significantly increased from
12 acres to approximately 21.4 acres to allow for additional lay down space. The
Commonwealth has committed to undertake additional assessments, including archeological
assessments, as it finalizes the fully delineated site. As noted above, the upland area has been
subject to prior disturbance (e.g. demolition of former large industrial structures), and the
anticipated use of the additional acreage for lay down will be limited to very near surface
disturbances. As a result, the Commonwealth is confident that additional archeological
assessments will not result in the need to modify or eliminate the use of any of the previously
unassessed parcels. EPA cannot, however, reach the determination that the Project will have no
potential adverse effect on historic properties in the upland area until a final assessment of the
entire area is completed, and consulting parties are appropriately engaged.
In accordance with the SHPO's recommendation regarding paleosols, the Commonwealth
conducted assessments of prehistoric archeological site potential for the intertidal and subtidal
portions of the Project. MBUAR issued a provisional special use permit for the intertidal area on
August 12, 2010; the Board confirmed its approval of this permit in letter dated September 30,
2010. In a September 9, 2010 letter to the EPA, the SHPO confirmed that the research design
and methodology for assessments concerning these portions of the Project were adequate.
The reports concerning the intertidal and subtidal areas were submitted to the SHPO and
MBUAR in October 2010. The intertidal report concluded that the area has low prehistoric
archeological potential, and recommended that no further prehistoric evaluation of the intertidal
portions of the project areas. The subtidal report, however, concluded that this area has a
moderate potential for submerged prehistoric sites. Accordingly, the report recommended that a
suitably trained archeologist be on board dredging vessels to monitor ground disturbing
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
activities. As explained in more detail below, in consultation with the Wampanoag Tribe of Gay
Head (Aquinnah) and Mashpee Wampanoag Tribe, the Commonwealth has agreed, among other
things, to have a suitably trained archeologist on board dredging vessels to monitor ground
disturbing activities.
Both the SHPO and THPOs noted concerns about the preservation of paleosols, which are
fossilized soils preserved within a sequence of geological deposits that are indicative of past
conditions. In particular, the SHPO submitted a response to the intertidal and subtidal
investigations on November 18, 2010. The SHPO noted that both the subtidal and intertidal zone
investigations identified areas with intact paleosols, and requested that the Project planners
consider an alternative that would avoid and protect these, soils. Similarly, tribal concerns
regarding the Project, as voiced by the Tribal Historic Preservation Officersfrom both the
Mashpee Wampanoag Tribe and the Wampanoag Tribe of Gay Head (Aquinnah), also centered
on the preservation of paleosols within the area of potential effect of the Project.
MBUAR submitted a response to the subtidal investigation on November 28, 2010. Although
generally agreeing that the Project has a low potential for yielding Native American cultural
resources, MBUAR requested that the Project be redesigned to avoid, any impacts to the areas
. containing paleosols. The Board also suggested that the Commonwealth develop an
unanticipated finds procedure to limit adverse affects to cultural resources discovered in the
course of the Project. . .
The Commonwealth responded to the requests by the SHPO, MBUAR and THPOs to consider
an alternative that avoids impacts to paleosols on January 12, 2011. In its response, the
Commonwealth confirmed that the footprint of the facility would be altered to avoid impacts to
mapped paleosols via either filling or dredging associated with the proposed Project by slightly
reorienting its southern face. ,
Moreover, the Commonwealth will require its contractor to take additional actions to ensure that
Project dredging activities will not cause adverse effects on paleosol areas. In particular, the
contractor will be required to demarcate areas of cultural resource area, significance (such as the
subtidal and intertidal paleosol areas) prior to the start of construction. No equipment will be
allowed within or floating above a paleosol area. No dredging or other work activities will take
place within 100 feet of a paleosol area without the implementation of temporary excavation
support (anticipated to be in the form of sheet piling to support the paleosol area). These
precautions will ensure that the paleosol areas will not be disturbed during dredging or other
work activities.
To date, neither the SHPO nor MBUAR has objected to or raised concerns regarding the
proposed alternative. In addition, should unanticipated cultural resources be discovered during
the implementation of the Project, the Commonwealth will rely upon'the procedures set out in
MBUAR's Policy Guidance for the Discovery of Unanticipated Underwater Archaeological
Resources and Policy Guidance on the Discovery of Unanticipated Human Remains to limit
adverse effects to these resources.
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
In March 2011, the Tribes met with the Commonwealth, its consultants, and EPA, over
continuing concerns regarding the geotechnical investigations, proposed construction and
potential impacts to paleosols. The Mashpee THPO requested the re-testing of a core sample
containing ruddy sediment to confirm that there was no evidence of paleosols. The Tribes also
requested that the Commonwealth provide direct notification to them in advance of any activities
to ensure that the THPO's staff can schedule monitoring. In addition, they requested that scopes
of work for any scheduled activities be sent to them for review, including protocol and criteria
for procedures should cultural properties be discovered. The Commonwealth agreed to comply
with these conditions.
In response to the Mashpee THPO's request, the Commonwealth re-tested the core sample in
question and confirmed that there was no evidence of a paleosol. The April 2011 report
regarding the results of this testing concluded that the sample did not contain evidence of
formerly subaerial conditions, buried upland landscapes, or human or animal interments or
cremations and was provided to the consulting parties.
Subsequent to the issuance of the April 2011 report, an additional consultation conference call, a
consultation meeting at the Mashpee Natural Resources office in Mashpee, MA, and email
information exchanges were conducted involving EPA, the Tribes and the Commonwealth.
These meetings were held to ensure that the Tribes were fully informed of the Commonwealth's
plans moving forward. The Tribes also requested that they be provided with the opportunity to
monitor any Project activities that take place.
In August 2011, a geotechnical exploration involving pile-driving from a barge took place along
the eastern face of the proposed terminal facility, which was between 250 and 300 feet from the
nearest boundary of the paleosol areas. The purpose of the pilot test was to generate a higher
degree of certainty regarding the anticipated penetration of the sheets during construction and
was not intended to provide any relevant information with regard to permitting or assessment of
archeological resources. Tribal monitoring took place during the activities. A total of five sheets
in five locations were driven into the subsurface and then removed without any major
disturbance of paleosols. No samples were collected during this activity. The archaeologist did
not provide a report for the collection of that information because the activity was engineering in
nature and did not provide any relevant permitting or archeological assessment value.
In October 2011, the Commonwealth conducted further investigations involving vibracore
sample borings to collect additional environmental samples for testing beyond the area of
mapped paleosols. The samples were collected using a vibrating core barrel which was
advanced through the subsurface. These vibracores were also collected in the same location as
previous vibracores has been collected; as a result, the archaeologist did not re-catalog the soils.
Tribal monitoring took place during this activity.
The Commonwealth also conducted intensive marine archaeological reconnaissance surveys of
the subtidal portions of the Project area to identify any previously recorded or unrecorded
historic properties. The Phase I & IB surveys were submitted to MBUAR in September 2010.
The Phase I survey found, and the Phase IB survey confirmed, the presence of a significant
4
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
cultural resource, namely, a late 20th/early 19th century sailing ship. The Phase I survey also
recommended that no additional investigations of other target areas be conducted.
The January 2011 Phase II investigation report of the shipwreck target area confirmed that the
wreck is the Thomas H. Lawrence, a schooner which burned and sank in New Bedford Harbor in
1941. Because of the deteriorated condition of this vessel, the report concluded that the
archeological research potential of the wreck site is limited. As a result, the report recommended
that any further investigation of the Thomas H. Lawrence was not warranted. On February 17,
2011, the Commonwealth received concurrence letters from the SHPO and MBUAR agreeing
with the conclusion reached by the investigation that the shipwreck does not meet the Criteria of
Eligibility for listing in the National Register of Historic Places (36 CFR Part 60), and that the
site lacks integrity. As a result, EPA, the Commonwealth, the SHPO and MBUAR agree that no
further investigation is warranted in connection with this shipwreck.
Since issuance of its January 18, 2012 comprehensive submission, the Commonwealth invited
the Tribes to attend an April 11, 2012 public meeting in New Bedford regarding the Project. In
addition, the EPA Indian Program Manager contacted both Tribes in June 2012 to offer them an
Opportunity to comment on the submittal before EPA issues its draft decision regarding the
Project for public comment. The Wampanoag Tribe of Gay Head (Aquinnah) relayed that they
have no substantive comments on the comprehensive submittal except that the agreed-upon
communication, coordination, and monitoring protocols between the Tribes and Commonwealth
continue. In addition, the Tribes indicated that they may monitor pile driving activities from the
barge where it will take place; tribal monitoring of dredging and filling activities will take place
from the shoreline
EPA has reviewed all of the archeological investigations concerning the areas projected to be
impacted by the Project, including the upland archeological investigation report, the intertidal
archeological investigation report, the subtidal archeological investigation report, the Phase I &
IB underwater archeological investigation, and the Phase II investigation of a located shipwreck,
and considered the input of the consulting parties to this project, including the SHPO, MBUAR,
the Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag Tribe. In
accordance with comments from both the SHPO and MBUAR, the footprint of the Project
facility will be altered to avoid impacts to historic properties. Neither the SHPO nor MBUAR -
have objected to or raised concerns regarding the proposed alternative redesign of this facility.
In addition, EPA has considered the comments, conditions imposed, and investigations
performed as the result of consultations with the Wampanoag Tribe of Gay Head (Aquinnah) and
the Mashpee Wampanoag Tribe.
Moreover, the Commonwealth has imposed additional conditions to avoid adverse effects to
historic properties. In particular, if unanticipated cultural resources are discovered during the
implementation of the Project, the Commonwealth will rely upon the procedures set out in
MBUAR's Policy Guidance for the Discovery of Unanticipated Underwater Archaeological
Resources and Policy Guidance on the Discovery of Unanticipated Human Remains to limit
adverse affects to these resources. The Commonwealth has also agreed to have a suitably trained
archeologist on board dredging vessels to monitor ground disturbing activities.
5
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
The consulting parties have also agreed that the shipwreck does not meet the Criteria of
Eligibility for listing in the National Register of Historic Places (36 CFR Part 60), and that the
site lacks integrity. As a result, the consulting parties agree that no further investigation is
warranted in connection with this shipwreck. .
On April 10, 2012 the Mashpee Wampanoag Tribe notified the Commonwealth that the THPO
duties were reassigned. When EPA contacted the new THPO in June 2012 regarding the January
18, 2012 comprehensive submittal, she sought assurance that the paleosols, if left undisturbed,
would not be "hazardous or dangerous" to future generations as a result of environmental
contamination. If this cannot be guaranteed, she recommended that the paleosols be removed
along with other contaminated soils.
A consultation meeting was held at Woods Hole, MA on Monday, July 2, 2012 with the EPA
Tribal Program Manager, Commonwealth and two Wampanoag Tribes to discuss the Mashpee
Wampanoag THPO's concern regarding paleosols as well as other concerns related to
construction of the Project. To address the THPO's concern, the Commonwealth explained that
contamination of soils is limited to sediments extending two to three feet in depth from the
bottom surface at a concentration of less than 1 part per million. The subtidal paleosol is located
from approximately 4.3 feet to 6.0 feet below the bottom surface. Therefore, it is unlikely that
paleosols could expose future generations to contamination.
Although unrelated to tribal historic properties, the Commonwealth also discussed CAD cell
construction during this meeting. The Commonwealth explained that it chose this disposal
method because offsite disposal was too costly to be considered, adding that the site restoration
would exceed EPA's minimum standards. The Commonwealth also noted that CAD cells would
be exposed for approximately 360 to 540 days until capped with clean fill material. The Tribes
requested that the Commonwealth consider capping with bentonite clay instead of clean fill to
reduce the threat of exposure to shellfish and marine fish species. They also requested that an
improved sequencing of CAD cell construction be considered to avoid long lead times before
cells are capped.
The Commonwealth also explained that if ledge is encountered and the dredging width cannot be
adjusted to avoid the ledge, blasting may be required. The Commonwealth has requested
approval from EPA to use blasting as an option only if necessary to remove the ledge. The
Commonwealth explained that while blasting would not be in the vicinity of the paleosols and
therefore would have no effect on them, the effect of blasting on fish is of concern to EPA. The
Tribes echoed this concern. Finally, the Tribes requested that they be contacted if any wooden
objects are discovered in future explorations or construction.
The Commonwealth and EPA agreed to engage in additional consultation with the Tribes after
publication of EPA's proposed Project decision. If requested, the Commonwealth is also
committed to engage in additional discussions regarding tribal concerns raised during the July
2012 meeting that are unrelated to historic properties (such as CAD cell construction and
blasting). The parties agreed that the next consultation meeting will be held on August 13,
2012.
6
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
On a final note, EPA and the Commonwealth will continue to abide by the coordination and
communication protocols requested by the Tribes in the March 2011 meeting discussed above.
In addition, EPA anticipates that it will revise a May 2010 Memorandum of Understanding
between EPA, the Wampanoag Tribe of Gay Head (Aquinnah), and the US Army Corps of
Engineers pertaining to cultural resources for the New Bedford Harbor Superfund Site. EPA
anticipates that the revised MOU will include the May 2010 MOU signatories and well as the
Mashpee Wampanoag Tribe and the Commonwealth.
In light of the investigations, project design modification, determinations, commitments, and
conditions discussed above, it is EPA's intent to propose a finding of no adverse, affect in
connection with the subtidal and intertidal areas as long as the Commonwealth agrees to abide by
the conditions discussed above. In accordance with the ACHP regulations, EPA will notify the
consulting parties of this finding. If the SHPO and THPOs agree with the finding or do not
provide a response within 30 days of its receipt, EPA may proceed with its approval of the
Project for the subtidal and intertidal areas. 36 CFR § 800.5. EPA cannot, however, conclude
the Section 106 consultation process in connection with the upland area until a final assessment
of the entire area is completed, and consulting parties are appropriately engaged.
7
-------
(
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
Determination of Compliance
Essential Fish Habitat Assessment under the Magnuson-Stevens
Act (16 U.S.C. § § 1851 et seq.)
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix H
New Bedford Harbor State Enhanced Remedy
Essential Fish Habitat Assessment under the Magnuson-Stevens Act, 16 U.S.C. §§ 1851 et seq.
Under Section 305(b)(2) of the Magnuson-Stevens Act, federal agencies need to consult with the
National Marine Fisheries Service (NMFS) on activities that have the potential to impact
designated essential fish habitat (EFH) for commercial species. As part of that consultation
process, the federal action agency produces an analysis that projects impacts to EFH from its
proposed action.
EPA has produced an EFH analysis as part of the approval process for the inclusion of the New
Bedford Marine Terminal into the State Enhanced Remedy for the New Bedford Harbor
Superfund site. This analysis lists the full range of commercial fish species which could
potentially occur within New Bedford Harbor and the Acushnet River. The analysis then reduces
this larger list of species to a subset of species that have the highest potential to be impacted by
the proposed action. This reduction is completed by reviewing physical habitat requirements for
each species and known physical habitat in the project area. The specific details of the proposed
project are then considered in regards to the species at greatest risk. The analysis points out
changes that have been adopted that minimize impacts to EFH and any mitigation that has been
proposed to compensate for remaining impacts.
Designated EFH species for the Acushnet River and New Bedford Harbor: EFH is
designated in fairly large areas by NMFS. These designations occur in 10'xlO' squares. The
description of the square that encompasses the project area is listed below with coordinates of
each corner and a description of landmarks.
10' x 10' Square Coordinates
Boundary
North
East
South
West
Coordinate
41° 40.0'N
70° 50.0' W
. 41° 30.0'N
71° 00.0' W
Square Description (i.e. habitat, landmarks, coastline markers): Waters within Buzzards Bay
within the Atlantic Ocean within the square affecting the following: south of Dartmouth, MA,
New Bedford, MA, and Fairhaven, MA, from Sconticut Neck and the western part of West Island
to Slocum Neck and Barney's Joy Point in Dartmouth, MA. Also affected are: Wilkes Ledge
Mishaum Point, Round Hill Point, Smith Neck, Dumpling Rocks, Negro Ledge, Great Ledge,
Phinney Rock, Pawn Rock, White Rock, Hussey Rock, Apponagansett Bay, and Ricketson Point
in South Dartmouth, MA, Apponagansett, MA, Clarks Cove, Clarks Point in Fairhaven, MA,
Butler Flats, Mosher Ledge, Wilbur Point on Sconticut Neck, Bents Ledge, Middle Ledge, and
West Ledge. These waters are also within western Nasketucket Bay, east of Sconticut Neck and
north of West Island and within New Bedford Harbor.
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
Species
Eggs
Larvae
Juveniles
Adults
Atlantic cod (Gadus morhua)
X
X
X
X . -
haddock (Melanogrammus aegelefinus)
X
X
pollock (Pollochius virens)
whiting (Merluccius bilinearis)
offshore hake (.Merluccius albidus)
red hake (Urophycis chuss)
X
X
X
white hake (Urophycis tenuis)
redfish (Sebastes fasciatus)
nidi
witch flounder (Glyptocephalus cynoglossus)
winter flounder (Pleuronectes americanus)
X
X
X
X
yellowtail flounder (Pleuronectes ferruginea)
windowpane flounder (Scopthalmus aquosus)
X
X
X
X
American plaice (Hippoglossoides platessoides)
X
X
ocean pout (Macrozoarces americanus)
Atlantic halibut (Hippoglossus hippoglossus)
Atlantic sea scallop (Placopecten magellanicus)
Atlantic sea herring (Cluped harengus)
X
X
monkfish (Lophius americanus)
bluefish (Pomatomus saltatrix)
X ¦
X
long finned squid (Loligo pealei)
nidi
n/a
X
X
short finned squid (Illex illecebrosus)
nidi
n/a
Atlantic butterfish (Peprilus triacanthus)
X
X
X
X
-------
EPA Draft Determination for the Proposed South.Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
Atlantic mackerel {Scomber scombrus)
X
X
X
X
i
summer flounder (Paralicthys dentatus)
X
X
X
X
scup (Stenotomus chrysops)
X
X
X
X
black sea bass (Centropristus striata)
n/a
X
X
X
surf clam (Spisula solidissima)
n/a
n/a
X
X
ocean quahog (Artica islandica)
n/a
n/a
spiny dogfish (Squalus acanthias)
n/a
n/a
tilefish (Lopholatilus chamaeleonticeps)
king mackerel {Scomberomorus cavalla)
X
X
X
X
Spanish mackerel {Scomberomorus maculatus)
X
X
X
X
cobia {Rachycentron canadium)
X
X
X
X
sandbar shark {Charcharinus plumbeus)
X
bluefin tuna {Thunnus thynnus)
X
Proposed Project Description: The Commonwealth of Massachusetts proposes the
development of an approximately 28-acre marine terminal capable of supporting offshore
renewable energy development and other future uses. The facility would also provide a site for
the disposal of navigational dredged material associated with the State Enhanced Remedy
("SER") during construction of the facility, and would support staging of additional dredged
material for beneficial reuse during operation of the facility. The facility would be located at the
South Terminal area in lower New Bedford Harbor. The proposal is described in detail in the
document entitled State Enhanced Remedy in New Bedford, South Terminal and its appendices,
dated January 18, 2012 and submitted by the Massachusetts Department of Environmental
Protection ("MassDEP") on behalf of the Commonwealth (hereafter referred to as MassDEP
2012). The Commonwealth has updated and supplemented its January 18, 2012 submission
with several additional submissions (with attachments), including submissions dated June 18,
2012 (hereafter MassDEP 2012a) and June 29, 2012 (hereafter MassDEP 2012b).
The project's components include:
1. Installation of a 1200 linear foot bulkhead in the Harbor, and placement of dredged
material (clean sand) behind the bulkhead, resulting in the filling of intertidal habitat, shallow,
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
near-shore sub-tidal habitat, and salt marsh. This filled structure, referred to as a confined
disposal facility ("CDF"), will be adjacent to approximately 22 acres of upland that, together
with the filled structure, will comprise the terminal facility; '
2. Dredging of shallow, near-shore, sub-tidal habitat and deeper sub-tidal habitat to
provide navigational access to and berthing at the terminal; to realign the Gifford Street Boat
Ramp Channel and create new mooring areas (to mitigate impacts to recreational users from the
South Terminal dredging); and to conduct maintenance dredging in the Federal Navigation
Project channel and turning basin: and •
3. Dredging of shallow, near-shore, sub-tidal habitat to create a confined aquatic disposal
("CAD") cell, identified as "CAD Cell 3," which will then be filled with contaminated dredged
material from the above-described navigational dredging.,
4. Disposal of contaminated dredged material from the above-described navigational
dredging into CAD Cell 3 and existing CAD cell 2, and well as capping existing CAD Cell 1 and
the "Borrow Pit" with clean dredged material.
5. Compensatory mitigation to address impacts to wetlands, intertidal habitat, subtidal
habitat, and shellfish resources.
Species Least Likely to be Impacted: Not all the listed EFH species have the same probability
of being affected by the proposed project. A number of the listed species do not have life stages
that are commonly found in New Bedford Harbor or the Acushnet River. These species tend to
prefer deeper water or water with higher salinity. EPA has assessed the likelihood of occurrence
of each species based on a review of existing data .from New Bedford Harbor and the Acushnet
River and a review of the species specific habitat requirements as published by the National
, Oceanic and Atmospheric Administration (NOAA).
Some of the listed species may only occur in the project area as juveniles or adults. These life
stages tend to be more mobile and resilient, so potential impacts from dredging or inwater
construction may be primarily avoidance of areas of elevated suspended solids. The liberal and
proper use of containment barriers would minimize the potential area affected by elevated solids
concentrations. These impacts represent a temporary disturbance that EPA, in its mitigation
conditions, will ensure are minimized to the greatest extent practicable.
Thus, EPA has tentatively determined that the species listed below may not be impacted at all or
at most may suffer minor temporary impacts. EPA intends to require the Commonwealth to
employ the normal safeguards taken for dredging (containment barriers, water quality
monitoring) to minimize the size and duration of any temporary impacts.
Atlantic cod
Haddock
4
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
Red hake
American plaice
Atlantic butterfish
Atlantic mackerel
Sandbar shark
Bluefin tuna
Atlantic sea herring
Bluefish
Long finned squid
Surf clam
King mackerel
Spanish mackerel
Cobia
Summer flounder.
Species Most Likely to be impacted: Of the listed EFH species, EPA has determined that
winter flounder, windowpane flounder, scup and black sea bass face the greatest potential to
suffer adverse impacts from the proposed project. This determination was made in large part due
to the known presence of these species in the project area and the use of the project area by the
more sensitive life stages (egg and larvae) of these species (MassDEP, 2012).
Analysis of Potential Impacts: Potential impacts to winter flounder, windowpane flounder, scup
and black sea bass could occur as the result of the physical loss of benthic habitat, degradation of
water quality, and the loss of shallow subtidal and intertidal habitat as a result of filling or
dredging.
Physical loss of benthic habitat: Winter flounder, windowpane flounder, scup and sea bass are
all considered benthic fish, which simply means they are typically found on or near the sea floor.
These species generally feed on benthic invertebrates and small fish that live in and on the sea
floor. Table 1 details the likely prey items for each life stage of each of these four species.
Table 1: Likely prey items per life stage of winter flounder, windowpane flounder, scup
and black sea bass
Species
Life Stage
Likely prey
Source
Winter flounder
(Pseudopleuronectes
americahus)
larval
Nauplii, invertebrate
eggs, protozoans,
polychaetes
Pereiraetal. 1999
juvenile
Sand dollar, bivalve
5
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
siphons, polychaetes,
amphipods
adult
Amphipods,
polychaetes, bivalves
or siphons, capelin
eggs, crustaceans
Windowpane flounder
(Scopthalmus
aquosus)
larval
Copepods and other
zooplankton
Chang et al. 1999
juvenile
Polychaetes and small
crustaceans such as
mysids
adult
Polychaetes, mysids,
decapods, shrimp,
hake and tomcod
Scup
(Stenotomus chrysops)
larval
Zooplankton
Steimle et al. 1999a
juvenile
Small benthic
invertebrates, fish eggs
and larvae :
adult
Benthic and near
bottom invertebrates
and small fish
Black sea bass
(Centropristus striata)
larval
Zooplankton
Steimleetal. 1999b
juvenile
Small epibenthic
invertebrates, such as
crustaceans
adult
Benthic, near bottom
invertebrates and small
fish
The construction of the terminal will result in the filling and permanent loss of 1.94 acres of
intertidal habitat, 4.73 acres of near-shore shallow subtidal habitat and 0.18 acres of fringing salt
marsh, for a total permanent loss of just over 6.85 acres of habitat.
There will also be temporary impacts from filling. First, the mitigation plan involves some
placement of clean sand from the navigational dredging in several areas outside the hurricane
barrier in order to raise the seafloor to create or enhance habitat. To create winter flounder
spawning habitat, the Commonwealth will place clean sand on 22.73 acres of subtidal seafloor to
create shallow subtidal habitat. Clean sand will also be placed to raise seafloor depths in subtidal
areas to create 4.47 acres of intertidal habitat. In addition, clean sand will be placed to
6
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix H
New Bedford Harbor State Enhanced Remedy V \ v %
enhance/restore approximately 14.91 acres of shallow subtidal habitat. Throughout these;
restoration areas, jPCB concentrations in the sediments range from 1-8 ppm. Covering these...,
sedime-nts .with cljean sand will eliminate exposure of elevated levels of PCBs to the biological ¦'
community. The impacts from these fill activities are considered temporary, because aquatic
habitat will be available^for^recplpnization and use by organisms upon completion.
Second, clean sand excavated from the proposed CAD cell 3 will provide capping material to
isolate PCB contaminated sediment in existing CAD cell 1 and the "Borrow Pit". There will also
be further disposal of contaminated sediments into the partially filled CAD cell 2. The capping
of the existing CAD cell 1 and the "Borrow Pit" will result in mortality to benthic organisms that
may have recolonized those areas since they have been filled, but more importantly the filling
will complete the containment strategy that results in the isolation of PCB. contaminated
sediment from the aquatic ecosystem. There will be additional temporary impacts to the benthic
community by the placement of fill within CAD cell 2, which is approximately 2 acres in size.
Temporary filling impacts from this proposal will affect approximately 52.91 acres of aquatic
habitat. The impacts due to filling are summarized in Table 2. ;
Table 2: Summary of filling impacts from South Terminal Project
Habitat type
Acreage
Permanent/temporary
Intertidal
1.94
Permanent
Shallow subtidal
'4.73
Permanent
Salt marsh
0.18
Permanent
Winter flounder spawning
habitat creation
22.73
Temporary
Intertidal
4.73
Temporary
creation/enhancement
Near shore subtidal
14.91
Temporary
enhancement
CAD Cells 1 and 2 and the
10.8.
Temporary
"Borrow Pit'.'
The dredging associated with the project will potentially impact a cumulative total of 53.7 acres
ofseafloor. The breakdown of dredging impacts is listed in Table 3.
Table 3: Summary of dredging impacts from South Terminal Project
Location
Acreage
Starting depth (ft)
Target depth (ft)
Quayside areas '
7.02
-1. to -6
-30 to -32
Quayside areas/tug
8.46
-1 to -6
-14
7
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
channel
Gifford St. mooring
6.17
¦ -1 to -6
-6 to -7
CAD cell #3
8.76
-4 to -6
-45 then filled to
original elevation and
capped
South Terminal
8.29
-20 to-25
-30
Channel
Federal Channel
15
Existing depths
-30
Total = 53.7
The various dredging and filling activities associated with construction of the project will result in
either the removal (by dredging) or burial (by filling) of many of the benthic prey items favored by
these species. The benthic infaunal community will be removed with the sediment or buried, so
polychaetes, bivalves and burrowing amphipods will be lost within the footprint of proposed work.
Epibenthic invertebrates of limited mobility (snails, sea stars, sand dollars) will also suffer
significant mortality from the dredging. More mobile epibenthic invertebrates (crabs, lobsters,
shrimp) will likely suffer some mortality as well, but their mobility will allow some individuals to
leave or avoid the impact zone.
The impacts, associated with the filling to construct the terminal will be permanent and represent a
loss of approximately 6.85 acres of habitat for all species utilizing the area. The impacts associated
with the dredging, the partial filling that will occur with compensatory mitigation, and the filling of
the CAD cell, will be temporary, except with respect to.winter flounder habitat, discussed further
below. As soon as the dredging and/or filling stops, mobile crustaceans will return to the dredged
or filled footprint. Lobsters, crabs and shrimp use chemoreception to detect prey and they are
drawn to the "odor" of disturbed sediments. It is believed that they view the presence of disturbed
sediments as an opportunity to forage for exposed and defenseless benthic infauna. The benthic
infaunal community will begin colonizing the newly exposed sediments during the next spawning
event. Typically, opportunistic shallow burrowing polychaetes are the first organisms to colonize
an area. The paradigm for benthic community ecology follows that the quick reproducing small
polychaetes comprise the initial or Stage I benthic community (Rhoads and Germano, 1986). The
Stage II community features slightly larger polychaetes and some small shellfish that typically are
slightly deeper burrowers than what is found in Stage I (Rhoads and Germano, 1986). The final
step in the successional process is the Stage III community. This community is characterized by
large deep burrowing bivalves and larger polychates (Rhoads and Germano, 1986). The presence
of large concentrations of bivalves within the dredge footprint suggests that this area currently is a
Stage III community. Full recovery to a Stage III successional community will likely take 3-7 years
(Rhoads and Germano, 1986).
The proposed project will result in the projected loss of almost 10 million shellfish. Clam siphons
8
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix H
New Bedford Harbor State Enhanced Remedy
are a known preferred prey item for winter flounder (Periera et al., 1999). EPA views this large
impact as a loss to the forage base for winter flounder that should be mitigated for.
The dredging will alter the depth of the sea floor and has the potential to change the sediment
characteristics of the bottom. Winter flounder, windowpane flounder, scup and black sea bass all
have specific habitat requirements for spawning. These habitat requirements are listed in Table 4.
Table 4: Spawning habitat requirements of winter flounder, windowpane flounder, scup and
black sea bass
Species
Temperature (°C)
Salinity (ppt)
Depth (m)
Substrate
Winter flounder
<10
10-32
0.3-4.5
Sand, muddy
sand
Windowpane
flounder
<21
5.5-36
1-75
Mud, fine grained
sand
Scup
13-23 ,
n/a
<10
Weedy, sandy
areas
Black sea bass
n/a
n/a
20-50
Sand
Source: NMFS/NE
^0. www.nero.nmfs.eov/ro/doc/efhtables.odf
The proposed dredging will increase the depth of 44.94 acres of sea floor. This change in depth
should not alter the available spawning habitat for windowpane flounder, scup or black sea bass.
However, the. proposed dredging, terminal construction and operation will result in the loss of
approximately 20.'21 acres of winter flounder spawning or nursery habitat. EPA views this
potential loss of habitat as critical and as such, these impacts need to be minimized and mitigated.
Winter flounder stocks in southern New England have crashed to historically low levels within the
last 5 years. This has resulted in the commercial fishery for winter flounder off of southern
Massachusetts, Rhode Island and Connecticut to be closed indefinitely.
Water quality impairment. Dredging typically will result in elevated concentrations of total
suspended solids, reduced dissolved oxygen concentrations in the water column and potentially
elevated concentrations of contaminants associated with the sediments. The sediments to be
dredged in inner harbor have been extensively tested and have elevated concentrations of
polycyclic aromatic hydrocarbons (PAHs), polychlorinated biphenyls (PCBs), various heavy
metals and dioxins/furans.
Extensive water quality monitoring has been conducted during prior dredging projects in the
inner harbor as part of the Superfund cleanup. Dredging has been undertaken using standard
bucket dredges or hydraulic systems. In both cases, containment systems have been implemented
to reduce potential impacts to water quality from the suspension of sediments. In general, in-situ
monitoring has shown levels of elevated turbidity were limited to a fairly small area (300 ft)
9
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
"downstream" from the dredging operation. Turbidity levels returned to close to pre-dredging
levels within hours after dredging ceased. Toxicity testing conducted with discrete water
samples "downstream" from the dredging have not shown any significant levels of mortality. To
protect fish passage, dredging in narrow portions of the inner harbor have been undertaken with
containment barriers and generally in times of year when anadromous or diadromous fish are not
moving in or out of the system.
Blasting: Geotechnical data collected from the terminal site shows the presence of fractured rock
within the footprint of the dredge area. Due "to its fractured nature, it is possible that it can be
removed with a dredge, but the Commonwealth cannot rule out the need to use blasting to
remove it (MassDEP, 2012a). Based on prior experience in Boston Harbor with blasting, there is
a reasonable concern over the potential of mass fish mortalities (US Army Corps, 2008), even
with some protective measures being employed. Numerous fish species including winter
flounder, alewife, blueback herring, rainbow smelt and possibly Atlantic sturgeon are using this
area for either spawning, foraging and/or nursery habitat. The normal schooling behavior of
alewife,- blueback herring and rainbow smelt make them particularly vulnerable to large mortality
events. Schools of several hundred to 1500 fish were estimated to be killed by 4 separate
blasting events in the fall of 2007 in Boston Harbor (US Army Corps, 2008). These estimates
were derived by observing and estimating the number of fish that floated to the surface and are
unquestionably low. Some fish are shredded to pieces by blasting, others do not float to the
surface and still others will be eaten by birds or other predators before they can be tallied. If
blasting is ultimately required, there are a series of precautions that can be implemented to reduce
the potential risk of impacts. These precautions are described below in the section on
Minimization/Mitigation of Potential Impacts.
Ballast Water Uptake: The Commonwealth projects that the offshore wind development project
anticipated to be the first user of the marine terminal will receive 26 international vessels within
a 12 month period delivering components for wind turbine construction (MassDEP 2012). After
offloading, these vessels will take on water from New Bedford Inner Harbor to use as ballast to
stabilize the ship for the return trip across the Atlantic Ocean. The uptake of ballast water results
in the entrainment of fish eggs and larvae associated with that volume of water. The
Commonwealth estimates that each vessel will take on between 200,000 and 300,000 gallons of
water for ballast (Commonwealth Response to EPA 6-26-12). This would result in an annual
removal of between 5,200,000 and 7,800,000 gallons per year. This volume of water represents
less than 1% of the total volume of New Bedford Inner Harbor arid thus .likely represents a
negligible potential impact to planktonic larvae and eggs within New Bedford Inner Harbor.
10
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
Minimization/Mitigation of Potential Impacts
To minimize the impacts from dredging, the Commonwealth has proposed to take the following
steps:
• The Commonwealth has based the configuration and extent of the proposed
dredging on the size and maneuverability of the vessels that would visit the port.
It has concluded that the proposed dredging represents the minimum amount
necessary to ensure safe navigation and transit by these vessels.
• Dredging in the Federal Navigation Project channel will only target areas that are
above target depths (based on the draft of the vessels to be used to support off-
shore wind energy development). The Commonwealth has indicated that it is
possible that no dredging will be necessary depending on the draft. The estimate
of 15 acres is a worst case scenario. The project will attempt to honor relevant
environmental dredge windows, by minimizing dredging during certain times of
year (February-June for migration and winter flounder spawning). If dredging is
not completely stopped during the spring, it will be restricted to deeper water to
avoid winter flounder spawning habitat.
• Dredging will be done using an environmental bucket and appropriate
containment devices, such as silt curtains.
• The project will adhere to the Performance Standards (MassDEP 2012, Appendix
75 for dredging that have been developed with input from state and federal
resource agencies (including NMFS) for the New Bedford Superfund Cleanup
Project.
• Ambient water column monitoring will occur to ensure that those Performance
Standards are met.
• If feasible, erect silt curtains to isolate large schools of fish from the blast zone.
• Plan the blasting program to minimize the total weight of explosive charges per
shot and the number of shots for the project.
• Use angular stemming material of sufficient length in drill holes to reduce energy
dispersal to the aquatic environment.
• Subdivide the charge, using detonating caps with delays or delay connectors with
detonating cord, to reduce total pressure. Avoid use of submerged detonation
cord.
• Use decking when possible in lengthy drill holes to reduce total pressure.
• For seismic exploration use non-explosive sources when possible or use linear
charges for open water shots or buried charges.
• Used shaped charges to focus the blast energy when the submerged surface
charges are necessary, reducing energy released to the aquatic environment during
11
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix H
New Bedford Harbor State Enhanced Remedy -
demolition.
• Monitoring of potential fish mortality is required for each blast. If excessive
mortalities (hundreds of fish/event) occur, then additional technologies, such as
fish startle systems or bubble curtains, may also be considered for use.
EPA has tentatively determined that in addition to all the conditions above which the
Commonwealth has agreed to implement, the additional condition of restricting blasting to
between November and February is necessary to protect aquatic resources in New Bedford Inner
Harbor.
To provide compensatory mitigation to address both permanent and temporary aquatic impacts
associated with this project, the Commonwealth.has proposed the following mitigation package:
• The Commonwealth proposes to create 22.73 acres of winter flounder spawning habitat
in an area just south of the hurricane barrier. This represents a replacement ratio of
slightly greater than 1 to 1. The sediments in the proposed area currently possess elevated
levels (1.3 to 8.2 ppm) of PCBs and are below the preferred depth range of winter
flounder spawning. Clean sand from the navigational dredging will be brought in to cap
the contaminated sediments and to elevate the depth of the bottom to a depth more
amenable to winter flounder spawning activities.
• Extensive monitoring of the winter flounder spawning creation area will be undertaken to
ensure that the cap does not erode with time and to measure the use of this new habitat by
winter flounder for spawning.
• The Commonwealth will create/enhance 4.47 acres of intertidal habitat in an area south of
the hurricane barrier by placing clean sand from the navigational dredging into an area of
shallow subtidal habitat that possesses sediments with elevated (1.3 to 8.2 ppm) PCB
concentrations. Similar to the winter flounder spawning creation, this effort would create
new habitat by changing its natural depth and would represent an improvement in habitat
quality by isolating an area of contamination.
• The Commonwealth will remediate 14.91 acres of shallow subtidal habitat in an area
south of the hurricane barrier by placing clean sand from the navigational dredging over
sediments contaminated with elevated (1.3 to 8.2 ppm) levels of PCBs. This effort would
not result in a change in habitat types; it would remain shallow subtidal habitat. It would
be a significant improvement in sediment quality by isolating the contaminated sediments
from the environment.
12
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
• The Commonwealth will be conducting a reseeding program of quahogs in open
shellfishing areas south of the hurricane barrier. The Commonwealth is planning on
using larger seed clams and expects a survival rate of about 40%. As a result, EPA
proposes to require the Commonwealth to reseed 24,542,803 clams to offset the expected
loss of 9,817,121 shellfish as a result of the project. Due primarily to the availability of
seed, this replacement will take place over a 10-15 year time period.
• The applicant proposes to restore/enhance a 1.9 acre salt marsh/tidal tributary in the inner
harbor, bordering the western end of the hurricane barrier. Extensive monitoring will
accompany this effort to ensure the success.of the project.
• Existing CAD cell 1 and the "Borrow Pit" will be capped as part of this proposal
effectively containing sediment contaminated with PCBs.
Conclusions: The majority of the impacts to EFH habitat associated with this project will be
temporary and reversible. Ambient monitoring will be required to ensure that Performance
Standards are met. Exceedances of performance standards may trigger reduced dredging rates to
ensure the protection of water quality. For the permanent impacts, the Commonwealth has
developed a mitigation package that should offset the projected loss of winter flounder spawning
habitat, salt marsh and intertidal habitat. An expanded shellfish reseeding effort consistent with
that described above will be necessary to offset the losses associated with that resource. EPA has
tentatively determined that impacts to EFH species will be minimized and mitigated to the
greatest extent practicable provided that the Commonwealth fully implements all of the proposed
minimization and mitigation measures described above.
This EFH assessment is the first step in the required consultation process between the federal
action agency (in this case EPA) and NMFS. NMFS will review this document and may issue
conservation recommendations. EPA may or may not adopt those recommendations, but if EPA
chooses not to adopt any recommendation, EPA must provide a written explanation defending
that choice to NMFS. EPA will complete the consultation process before making a final decision
on the project.
13
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
Determination of Compliance -
Endangered Species Act (16 U.S.C. §1531 et seq.)
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy I
Appendix I
Endangered. Species Act, 16 U.S. C. 1531 et sea. ;
f , ¦
Section 7 of the Endangered Species Act ("ESA") requires EPA to ensure, in consultation with
the U.S. Fish and Wildlife Service ("FWS") or the National Marine Fisheries Service ("NMFS"),
that any action authorized by EPA is not likely to jeopardize the continued existence of any
endangered or threatened species or adversely affect its critical habitat.
1. Species under U.S. Fish and Wildlife Service (TWSVJurisdiction
. i-
EPA initially identified three federally listed species that may occur in the area of the proposed
New Bedford Harbor - South Terminal project in New Bedford, Massachusetts: roseate tern
{Sterna dougallii), listed as endangered; piping plover (Charadrius melodus), listed as
threatened; and northeastern beach tiger beetle (Cicindela dorsalis dorsalis), listed as threatened.
EPA initiated informal consultation with FWS on May 17, 2012 and provided EPA's draft
Biological Assessment ("BA") for its review and comment. Based on discussions with FWS
EPA now believes and FWS informally confirmed durin'g a June 27, 2012 telephone
conversation, that the piping plover and the northeastern! beach tiger beetle would not be found in
the project area and, therefore, that the proposed project would have no effect on those species.
EPA has requested written confirmation of this conclusion from FWS.
i.
Since FWS has indicated that only the roseate tern may occur in the area of the proposed project,
EPA has completed a final Biological Assessment of the potential effects of the construction and
long-term operation of the project on the roseate tern, attached as Appendix K to EPA's Draft
Determination for the Proposed South Terminal Project.' For the reasons discussed in the final
BA, and summarized briefly below, EPA has concludedlthat the proposed NBH-South Terminal
project may affect the roseate tern, but is unlikely to adversely affect the species. EPA will be
transmitting the final Biological Assessment to FWS and will request concurrence from FWS
prior to making a final decision on the project.
Roseate Tern
The U.S. Fish and'Wildlife Service listed the roseate tern {Sterna dougallii) as endangered under
the Endangered Species Act in 1987. The species is alsoj listed by the Commonwealth of
Massachusetts as endangered under state law. j
i
Terns arrive in Massachusetts from South America in late April to mid-May to nest. In 2011, the
population of roseate terns in Massachusetts decreased slightly (2.4%) to 1,359 pairs (vs. 1,393
pairs in 2010). Approximately 90% of the population was concentrated at just 2 Massachusetts
colonies: Bird Island, Marion, MA, (937); and Ram Island, Mattapoisett, MA (385). Due to their
very specialized habitat requirements, there are very few nesting locations in the
Commonwealth. Roseate terns forage in specialized situations - shallow sand bars, shallow
water or rip tides where prey fish are swept close to the surface. Typically these areas are in
bays, tidal inlets or between, islands. The roseate tern feeds mainly by plunge diving to catch prey
fish just below the surface. They are known to fly up to 25 km to forage over reliable feeding
areas (Nisbet, 1991; Duffy, 1986; Safina, 1990; Heinemann ,1992 in USFWS,1998). Bird Island
and Ram Island (respectively located approximately 17 km and 9.2 km from the NBH-South
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
Terminal project, "as the crow flies") are the two closest colonies to the NBH- South Terminal
project area and both lie within the typical foraging range (25 km) of the roseate tern. That said,
a study undertaken by Heinemann in 1992 in the New Bedford. Harbor area identified no roseate
terns foraging in the inner harbor area.;
The roseate tern's dietary habits are also fairly specialized, consuming primarily sand lance (95%
prior to mid-June, 75% over the season) and broadening after mid-June to include herring (8 -
11%), anchovy (4-6%), silversides (10-11%), and sometimes the juveniles of mackerel and
bluefish.
Fisheries studies were conducted by Normandeau Associates, Inc., in New Bedford Harbor from
June, 1998 - May, 1999 through seine and trawl sampling. The most numerous species identified '
at three near shore seine sampling stations were Atlantic Silversides (44%); striped killifish
(16%), mummichog (9%), cunner (7%) and winter flounder (6%). Other than Atlantic
Silversides, no other species known to be prey for the roseate tern were found in abundance.
Any sand lance (the roseate tern's primary food source) was likely tallied as part of the category
of "other species" (MassDEP 2012). Atlantic silverside is a widespread species that is abundant
in every major estuary from Nova Scotia to Florida. It is unlikely that the potential impacts of the
South Terminal project on silverside or other juvenile prey species will affect the occasional or
transient roseate terns that may enter NBH for foraging, as there are several other more
particularly suited foraging areas available within the 25 km foraging range of the colonies at
Ram and Bird Island.
MassDEP conducted an assessment for potential avian usage of the NBH - South Terminal area
by reviewing a wide variety of existing avian survey data. The conclusion of this assessment
was that "[tjhese surveys indicate that the Common and Roseate Terns likely do not travel inside
of the New Bedford Hurricane Barrier, and if they do, they do so infrequently and have not been
noted within the surveys in question." (MassDEP Avian Assessment, September 21, 2010) In
addition, as mentioned above, a study undertaken by Heinemann in 1992 in the New Bedford
Harbor area identified no roseate terns foraging in the inner harbor area (although, this survey
predated the restoration of suitable nesting conditions on Ram Island). Consistent with these
data, EPA believes that the likelihood of a foraging roseate tern being present in the project area
is very small due to the lack of specialized foraging conditions there, its preferred food items not
being available, and the existence of other preferable foraging habitat in the general area. EPA
also believes that the reduction in the forage base resulting from the dredging and filling
activities, would have an insignificant effect on the tern should a transient roseate tern forage in
the area. Effects from operations of the terminal once completed are also expected to be
insignificant, since current conditions in the area are likely deterrents to the use of the harbor by
roseate terns. As such, additional noise from the project is not expected to cause any further
adverse effect.
In light of the above considerations, there is, at most, only a small likelihood that a transient
roseate tern might seek to use the project area for foraging during nesting' and migration. If
such a transient roseate tern did seek to forage in the project area, it is highly unlikely that it
would encounter any contamination, or that its prey sources would have been reduced in any
meaningful way, as a result of the project. EPA concludes that, though the proposed NBH-
2
-------
EPA Draft Determination for the Proposed South Terminal Prjoject
New Bedford Harbor State Enhanced Remedy |
Appendix I
South Terminal project may affect the roseate tern, the project is unlikely to adversely affect the
species. .
2- Species under National Marine Fisheries Service Jurisdiction.
On May 25, 2012, EPA wrote to NMFS' advising it of an endangered species under its
jurisdiction which has the potential to be in the project area, and sought concurrence from NMFS
that the list of potential species was accurate and complete. EPA identified the Atlantic sturgeon
{Acipenseroxyrinchus oxyrincus) as a species which has the potential to occur in the area and
may be adversely affected by the proposed action. On June 19, 2012, NMFS wrote to EPA
advising that because Atlantic sturgeon undertake large-scale marine migrations and will forage
anywhere any available habitat exists, this species may be present in the vicinity of New Bedford
Harbor. EPA is currently seeking additional technical assistance from NMFS and is in pre-
consultation analysis with it. In that process, EPA and NMFS are discussing time of year
restrictions, project sequencing options and mitigative dredging techniques which could greatly
lessen or eliminate any potential adverse effects to the species. Prior to the issuance of a final
decision on the impacts of the project, EPA will enter informal consultation with NMFS, which
will include preparation of a Biological Assessment, and will seek concurrence with EPA's
findings regarding the potential impacts to the sturgeon from the construction and operation of
the project. |
I-'. ..
On August 5, 2011, NMFS received a petition from the Natural Resources Defense Council
("NRDC") requesting that it list both alewife (Alosa pseudoharengus) and blueback herring
(Alosa aestivalis) as threatened throughout all or a significant portion of their range. At this time
these species are being reviewed by NMFS as candidate]species for listing under the ESA.
Section 7 of the ESA does not require agencies to consult with the NMFS about candidate
species ("candidate species" is defined as any species being considered by the Secretary of
Commerce for listing as an endangered or threatened species, but not yet the subject of a
proposed rule). NMFS must make a finding by August 5, 2012 whether the petitioned action by
NRDC is warranted. If NMFS determines that listing either species is warranted, it would next
publish a proposed listing determination and solicit public comments before deciding to publish
a final determination to list them as endangered or threatened under the ESA. If either or both
species is proposed for listing, NMFS would provide technical assistance to EPA in assessing the
potential impacts of the proposed project on those species and determining any necessary project
restrictions or mitigation.
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
Draft TSCA §761.61(c) Determination
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
Draft TSCA $ 761.61(c) Determination
The Commonwealth of Massachusetts submitted a request for inclusion of a 28.25 acre marine
terminal consisting of 6.85 acres of filled waters (referred to as "the confined disposal facility" or
the "CDF" ) and approximately 11 acres of upland area, (not including the ancillary properties)
(referred to as the "upland area" for the purposes of this TSCA Determination) in the South
Terminal location of the New Bedford Harbor in New Bedford, Massachusetts as well as the
dredging and filling associated with that construction, including dredging and filling of confined
aquatic disposal cells (collectively the "proposed Project", the "Project", or the "South Terminal
Project") into the New Bedford Harbor State Enhanced Remedy ("SER"). In general, the CDF
construction, involves the extension of the existing terminal by installing sheeting piling, dredging
of sediments within the CDF footprint that are not suitable for construction, and filling of the CDF
with structurally suitable materials. (See Attachments la and lb for CDF area.)
I have reviewed the pertinent documents regarding the SER which are contained in the
Administrative Record and include but are not limited to the following Commonwealth submittals:
January 18, 2012 (January SER); the draft 100% Construction Design Plans dated June 6, 2012;
drawings and analytical data submitted via email on June 13, 2012 for CAD cell #3, the
stormwater drainage swale, and the South Terminal Channel/Federal Channel; groundwater
sampling data submitted via email on June 13, 2012; response to TSCA comments submitted via
email on June 20, 2012; Response to USEPA Comments on January 18, 2012 SER (submitted
June 18, 2012); and Response to USEPA Comments (submitted via email on July 3, 2012).
Previous TSCA determinations for the disposal of PCB-contaminated dredged sediments into the
borrow pit CAD, CAD cell #1, and CAD cell #2 are dated January 12, 2005 and November 12,
2008 (see Attachments 2 and 3)
In addition to construction of the CDF, the following activities are associated with the
January 18, 2012 request and further described in the draft Construction Design Plans which will
potentially impact PCB-contaminated sediments and soils with greater than (>) 1 part per million
(ppm):
• Construction of a confined aquatic disposal (CAD) cell #3;
• Dredging of PCB-contaminated sediments with less than (<) 50 ppm located within the
area where the CDF will be constructed;
• Potential dredging of PCB-contaminated sediments with < 50 ppm located in the federal
navigational channels with disposal in CAD cell #3;
• Dredging of PCB-contaminated sediments with <50 ppm located within the Gifford Street
Channel re-alignment area and the northern and southern mooring mitigation areas with
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
disposal into CAD cell #3;
• Dredging of PCB-contaminated sediments located in the storm water drainage swale (see
Attachment 4);
• Removal of greater than or equal to (>) 25 ppm PCB-contaminated soils on the current
upland area with disposal at a TSCA-approved disposal facility or a RCRA hazardous
- waste landfill in accordance with § 761.61(a)(5)(i)(B)(2)(//z);
• Grading and/or removal of < 25 ppm PCB-contaminated soils on the current upland area
with disposal within the CDF area;
• Construction of a protective 3-foot cap or equivalent over that portion of the CDF area .
which has been determined to have PCB concentrations at greater than (>) 1 ppm. The
cap will consist of a minimum of 36-inches of compacted dense aggregate; and,
• Establishment of a deed restriction in the form of an Activity and Use Limitation for the
CDF area where PCB concentrations are > 1 ppm.
Consistent with Section 761.61(c) of the Toxic Substances Control Act (TSCA), I have determined
that the proposed method of excavation and disposal of the current upland soils and
PCB-contaminated sediments as described do not pose an unreasonable risk to human health or the
environment as long as the following conditions are met:
Dredging and Disposal of Sediments
1. Development and submittal of a Phase IV Work Plan to SER Resource Agencies;
2. Compliance with water quality and turbidity performance standards as specified by
Attachment 5 to this TSCA Determination is maintained, at a minimum. (Attachment 5
may also be found at Appendix C to EPA's Draft Determination. If, as a result of EPA's
consultation with NMFS related to the Atlantic sturgeon, it is determined that the standards
are not protective, EPA will impose additional requirements;
3. Compliance is maintained with conditions previously established for management and ,
disposal of PCB-contaminated sediments into other CAD cells under TSCA
Determinations dated January 12, 2005 and November 12, 2008.
4. Any dredged material that accidently comes to be located outside.of CAD cell #3 during
disposal (e.g., "missing" the cell during placement or from "surge" related overflow during
placement) is removed and placed into the CAD cell;
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
5. The CAD cell #3 is capped with clean, suitable material of sufficient thickness to isolate
the PCB-contaminated sediments physically, chemically and biologically from the
. surrounding benthic environment. The placement of the underwater cap shall be timed
such that sufficient consolidation of the underlying dredged material has taken place to
physically support the cap material. A bathymetric survey shall be performed upon
completion of the cap placement;
6. The CAD cell #3 cap is monitored to demonstrate their physical, chemical and biological
quality; This monitoring shall include bathymetric surveys, chemical sampling and
sediment camera work (as an alternative to benthic faunal enumeration). The frequency
of this cap monitoring shall be at least annually for the first three years after cap placement,
unless otherwise directed by EPA New England. After three years, the Commonwealth
may propose a revised schedule for monitoring;
7. An annual report summarizing the CAD cell #3 cap placement or CAD cell cap monitoring
shall be submitted to EPA New England beginning with placement of the cap material.
This report shall include a summary discussion of all activities associated with the cap
placement or cap monitoring, and shall include if needed any recommendations for
corrective action to maintain the physical, chemical or biological quality of the caps. A
draft and final version of each such annual report shall be submitted, with the final version
incorporating all comments received from EPA New England.
8. Following removal of PCB-contaminated sediments from the drainage swale, confirmatory
sampling shall be conducted in accordance with 40 CFR Part 761 to document that all
PCBs with greater than (>) 1 part per million (ppm) have been removed. Alternatively, a
notice on the deed in accordance with state law shall be executed to document that PCBs at
> 1 ppm remain in the drainage swale area as required under 40 CFR. § 761.61(a)(8).
9. Corrective actions recommended in the annual reports, or alternatively, those required by
EPA New England based on information in the annual reports, shall be implemented in a
timely manner. Corrective actions could include, but not be limited to, installation of
additional controls or excavation and disposal of dredged PCB-contaminated sediments
from the CAD cell #3 if information indicates that the CAD cell #3 is .not effective in
isolating and/or controlling migration of PCBs from the CAD cell #3 into the harbor.
10. The City of New Bedford/Harbor Development Commission shall coordinate with the
Department of Commerce through the National Oceanic and Atmospheric Administration,
National Ocean Service and the U.S. Coast Guard to ensure that the as-built location of the
CAD cell #3. becomes included in all future nautical charts of New Bedford Harbor.
Current Upland Area of CDF as depicted in Attachment 8 to this TSCA Determination
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
1. The selected contractor for the upland area PCB remediation work shall submit a
contractor work plan describing the containment and air monitoring that will be employed
during PCB remedial activities, including but not limited to site control, excavation,
handling, storage, and disposal activities. At a minimum, the air monitoring plan and
action levels for the project shall include the procedures and performance standards
contained in Attachment 6 of this TSCA determination. (Attachment 6 may also be found
at Appendix A to EPA's Draft Determination.) This work plan should also include
information on how and where all PCB-contaminated wastes (both £ 25 ppm and > 25
ppm) will be stored, how stormwater controls and runoff will be managed, and on how
field equipment will be decontaminated.
2. Identified PCB-contaminated soils with > 25 ppm shall be excavated and disposed off-site
at a TSCA-approved facility or a RCRA-hazardous waste landfill as required under
§ 761.61(b). Confirmatory sampling shall be conducted in accordance with 40 CFR Part
761, Subpart O to document that all PCBs with > 25 ppm have been removed. The
locations of these PCB-contaminated soil areas are identified in Attachment 7.
3. In the event it is determined that soils that are deemed to be "geotechnically unsuitable"
must be removed and disposed off-site, the contractor shall submit a sampling and analysis
plan for characterization of these soils to EPA for review and' approval, unless
characterization data exists which documents the PCB concentrations in the soils. If PCB
. concentrations in these soils are determined to be greater than (>) 1 ppm but less than (<)
50 parts per million (ppm), EPA approval will be required for disposal of these soils. If
PCB concentrations are determined to be greater than or equal to (>) 50 ppm, the soils shall
be disposed of in accordance with 40 CFR § 761.61(b).
4. Compliance with the PCB regulations at 40 CFR Part 761. is maintained during all phases
of work involving PCB-contaminated soils and/or sediments, including but not limited to:
40 CFR § 761 Subpart C - Marking of PCBs and PCB Items
40 CFR § 761.65 - Storage for Disposal
40 CFR § 761.79 - Decontamination Standards and Procedures
40 CFR § 761.180 - Records and Monitoring
40 CFR § 761 Subpart K, PCB Waste Disposal Records and Reports
5. A long-term monitoring plan (LTMP) shall be established for maintenance of ground
surfaces and for groundwater monitoring on the CDF area. At a minimum, the LTMP shall
include: a description of the activities that will be conducted, including cap inspection
a.
b.
c.
d.
e.
4
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
v
Appendix J(l)
criteria, frequency, and routine maintenance activities; groundwater quality monitoring
locations; sampling protocols, sampling frequency, and analytical criteria; and reporting
requirements.
a. The LTMP shall include a communications component which details where the
( inspection and monitoring results will be maintained and communicated, if requested,
to interested stakeholders.
b. The LTMP shall be submitted to EPA for review and comment and the Commonwealth
shall incorporate any changes to the LTMP required by EPA. Activities required
under the LTMP shall be conducted until such time that EPA determines, in writing, .
that such activities are no longer necessary.
6. A deed restriction in the form of an Activity and Use Limitation shall be recorded on the
CDF area where PCB concentrations at > 1 ppm remain. The deed restriction shall identify
the use restrictions for the property, if any, and the long-term monitoring requirements on
the area. The identified area subject to this deed restriction is identified on Attachment 8.
This determination is based on the information contained in the Administrative Record. Any
proposed change(s) to the SER which involves management or impact to PCB-contaminated soils
or sediments shall be provided to EPA. Upon review, EPA may find it necessary to revise this
determination, a condition herein, or issue a new TSCA determination based on the proposed
change(s).
James T. Owens, III Date
Office of Site Remediation & Restoration ¦ *
Location of CDF - Option A Configuration
Location of CDF - Option B Configuration
January 12, 2005 TSCA Determination
November 12, 2008 TSCA Determination
Stormwater Drainage Swale sediments and PCB concentrations
State Enhanced Remedy - Water Quality and Turbidity Performance Standards
Minimum Air Monitoring Standards
Current Upland Area PCB Excavation Areas
Deed Restriction Area
Attachment
la:
Attachment
lb:
Attachment
2:
" Attachment
3:
Attachment
4:
Attachment
5:
Attachment
6:
Attachment
7:
Attachment
8:
5
-------
Moihrnirit I Cl.
>84 HIGH STREET
SUITE 502
BOSTON MA 02110
(617) 728-0070
west imawncs w«eo «' «*> rw n«
e*©jcc me urtnxuwtr^ i» mx% «»v»5» t*E »wsv A0C-710HS "tl TMrS PROJECT C* r(*
ewfJPKw c this wace* on-tw. cwxpt
Pi* ACAtXWCNT IN AW3 WW
COMPtNSAfTON SO «Tl
UAP 31 PORTION or
PARCEL 234 N.B
RADIO INC
VAIN FACILITY |
ASSESSORS MAP
PORTION Of 1
PARCEL 288 A
PORTION Of
PARCEL 283
MAP 25A PARCELS
*9, 53, & PORTION
0^ PARCEL 48
MAP 25A
PARCEL *9
N0 REDEV.
AH) JHOfl'TY
25A
PARCEL
I 7 & 48
klTV Of
| NEW I
eroFORQJ
PREPARED FOR
COMMONWEALTH
OF
MASSACHUSETTS
NEW BEDFORD MARINE
COMMERCE TERMINAL
PROPOSED
CONFIGURATION A
tVown SCO
Lost R«v- 7/7/10
-------
A+khmmt lb,
ie< HIGH STREET
SUITE 302
BOSTON MA 02'10
(617) 728-0070
Tfctlt QflAWOS PtSPtMO B> «•£* n5* M4
P*OXC1 *H WVWWKWT5 or «#trs ittvtt *e*
USE SOUt* *rr* W3*fC' ro r«w meet. mo
S*AU &t oauto Ht€ or 1*C
«mb s-«^u ran-** «a ccwucw l*»,
Sutd'obt vc 0">c
document* $»au *or BS vsto « or**
l*OJtCfi rtp unJ.ACWS to 1M» WOJECT M FO*
COMPUtK* or tHS WKMC7 9* 0»X»t CXCCf
3' AOSEMWr m ttZ'aK «c WW «*>»»QP**tt
MAP 31 PORTION OF
PARCEL 234 N.B.
RADIO INC.
MAIN FACIUTY
ASSESSORS MAP 31
PORTION OF
PARCEL 288 &
PORTION OF
PARCEL 263
MAP 25A PARCELS
49. 53. &, PORTION
OF PARCEL 48
EASEMENTS
FROM MAP
25A
PARCELS
46.45 & 5
MAP
25A
PARCEL
7 & 48
; city of |
: NEW I
[BEDFORD-
MAP 25A
PARCEL tO
SOUTH
COAST
MILLS LLC
% Y M
TJ*« > %
m
MAP 2SA
PARCEL 2
SOUTH
COAST
MILLS LLC
MAP 21
PARCEL
45 CtTY
OF NEW
'BEDFORD, j
AND
EASEMENT!
PARCEL
COMMONWEALTH
OF
MASSACHUSETTS
NEW BEDFORD MARINE
COMMERCE TERMINAL
PROPOSED
CONFIGURATION 8
Qqt« 3/24/10
Lost W«v 7/7/10
-------
AUmntl
Appendix A - TSCA 761.61(c) Determination
Consistent with Section 761.61(c) of the Toxic Substances Control Act (TSCA), I have
reviewed the pertinent documents regarding the state enhanced remedy for the New Bedford
Harbor site and considered the proposed confined aquatic disposal cells (CAD cells) for the
dredged PCB-contaminated sedimentsjset out inj}the October 2004 Work Plan for New Bedford
Harbor Dredge - Phase II, North Terminal Maintenance Dredge. I have also reviewed a map of
the location of the CAD, cells which is attached hereto as Attachment A. As required by that •
section of TSCA, I have determined that the Work Plan 's proposed method of disposing of the
PCB-contaminated sediments in CAD cells north of Route 6 in New.Bedford Harbor does not
pose an unreasonable risk to human health or the environment as long as the following
conditions are met:
1. Compliance with the Work Plan's water quality and turbidity performance standards is
maintained during all dredging and disposal activities;
2. The CAP cells are capped with clean, suitable material of sufficient thickness to isolate the
PCB-contaminated sediments physically, chemically and biologically from the surrounding
benthic environment. The placement of these underwater caps shall be timed such that sufficient
consolidation of the underlying dredged material has taken place to physically support the cap
material. A bathymetric survey shall be performed upon completion of the cap placement;
3. The CAD cell caps are monitored to demonstrate their physical, chemical and biological
quality. This monitoring shall include bathymetric surveys, chemical sampling and sediment
camera work (as an alternative to benthic faunal enumeration). The frequency of this cap
monitoring shall be at least annually for the first three years after cap placement, unjess otherwise
directed by EPA New England. Afler three years, the Commonwealth may proposed a revised
schedule for monitoring;
4. An annual report summarizing the CAD cell cap placement or CAD cell cap monitoring
shall be submitted to EPA New England beginning with placement of the cap material. This
report shall include a summary discussion of all activities associated with the cap placement or
cap monitoring, and shall include if needed any.recommendations for corrective action to
maintain the physical, chemical or biological quality of the caps. A draft and final version of.
each, such annual report shall be submitted, with the final version incorporating all comments
received from EPA New England.
5. Corrective actions recommended in the annual reports, or alternatively, those required by
EPA New England based on information in the annual reports, shall be implemented in a timely
manner.
6. The City of New Bedford/Harbor Development Commission coordinates with the Department
of Commerce through the National Oceanic and Atmospheric Administration, National Ocean
Service and the U.S. Coast Guard to ensure that the as-built locations.of the CAD cells become
included in all future nautical charts of New Bedford Harbor.
This determination is based on the information contained in the December 2004 Work Plan. Any
-------
proposed change(s) to the 2004 Work Plan shall be provided to EPA. Upon review, EPA may
find it necessary to revise this determination or issue a new TSCA determination based on the
proposed change(s).
/-/£-OS"
Robert W. Varney . 1 Date
Regional Administrator, EI%T3ew England
-------
Attachment A - State Enhanced Remedy Initial CAD cells and dredging areas
PROPOSED ORQXC AA£AS
SRSSffTtfO " - "
FIGURE 1 - PROPOSED CAD CELL LOCATIONS
XCMJb
AS VOW
rekt ¦¦ _
NEV BEDFORD HARBOR DREDGE - PHASE II
KAMI IT"
NEV BEDFORD HDC
NEV BCDFQR& MASSACHUSETTS
KQ9CD !*«
KH
i mx owhowmc
j V V4 OMOCXT ST
/ k\_tart sm. jctrdc m
Ik U7
ur rz»-oooo
ocotcs rr»
OCT «. ^ •
t
iiA
CNUACCO WW
1W
A
ivnwis |y>
rr
nOJCCT Ml
6345.002
«v
JBCR9TBM
IT
-------
-------
Aiocfoment
Appendix A - TSCA 761.61(c) Determination
Consistent with Section 761.61 (c) of the Toxic. Substances Control Act (TSCA) I have
reviewed the pertinent documents regarding the state enhanced remedy for the New Bedford
Harbor site and considered the proposed confined aquatic disposal cells (CAD cells) for the
dredged PCB-contaminated sediments set out in the draft April 2007 CAD Cell #2 Pre-Design
Work Plan and Section 01135 of the November 2008 Phase III Contact Specifications for the
New Bedford Harbor navigational dredging. I have also reviewed a map .of the location of the
CAD cells which is attached hereto as Attachment A. As required by that section of TSCA, I
have determined that the proposed method of disposing of the PCB-contaminated sediments in a
CAD cell(s) north of Route 6 in New Bedford Harbor does not pose an unreasonable risk to
human health or the environment as long as the following conditions are met:
1. Compliance with the Work Plan's and Contract Specification's water quality and turbidity
performance standards is maintained during all dredging and disposal activities;
2. Any dredged material that accidently comes to be located outside of CAD cell #1 or #2 during
disposal (e.g., "missing" the cell during placement or from "surge" related overflow during
placement) is removed and placed into the CAD cell(s);
3. The CAD cells are capped with clean, suitable material of sufficient thickness to isolate the
PCB-contaminated sediments physically, chemically and biologically from the surrounding
benthic environment. The placement of these underwater caps shall be timed such that sufficient
consolidation of the underlying dredged material has taken place to physically support the cap
material. A bathymetric survey shall be performed upon completion of the cap placement;
4. The CAD cell caps are monitored to demonstrate their physical, chemical and biological
quality. This monitoring shall include bathymetric surveys, chemical sampling and sediment
camera work (as an alternative to benthic faunal enumeration). The frequency of this cap
monitoring shall be at least annually for the first three years after cap placement, unless otherwise
directed by EPA New England. After three years, the Commonwealth may proposed a revised
schedule for monitoring; . • v
5. An annual report summarizing the CAD cell cap placement or CAD cell cap monitoring shall
be submitted to EPA New England beginning with placement of the cap material. This report
shall include a summary discussion of all activities associated with the cap placement or cap
monitoring, and shall include if needed any recommendations for corrective action to maintain
the physical, chemical or biological quality of the caps. A draft and final version of each such
annual report shall be submitted, with the final version incorporating all comments received from
EPA New England.
6. Corrective actions recommended in the annual reports, or alternatively, those required by EPA
New England based on information in the annual reports, shall be implemented in a timely
manner. Corrective actions could include, but not be limited to, installation of additional
controls or excavation and disposal of dredged PCB-contaminated sediments from the CAD cells
Page 1 of 2
-------
if information indicates that the CAD cells are not effective in isolating and/or controlling
migration of PCBs from the CAD cells into the harbor.
7. The City of New Bedford/Harbor Development Commission shall coordinate with the
Department of Commerce through the National Oceanic and Atmospheric Administration,
National Ocean Service and the U.S. Coast Guard to ensure that the as-built locations of the
CAD cells become included in all future nautical charts of New Bedford Harbor.
This determination is based on the information contained in the April 2007 Work Plan and the
November 2008 Contract Specifications. Any proposed change(s) to the Work Plan's or
Contract Specifications shall be provided to EPA. Upon review, EPA may find it necessary to
revised this determination or issue a new TSCA determination based on the proposed change(s)
(rector, Office of Site Remediation and Restoration
Date
Page 2 of 2
-------
Figure 1: CAD #2 Location
-------
rjf^lTO
'// - \ I \ '
.1^ \\
A//
,111 l /M /
>//// / / //'/ /
£>/// // // /
£V* / 7
- VORONOI CELL
TYP.
- CANAL AT SOUTH tUMNAl VORONOI Qll OKTRtBUTlOU AND fCB CONCCHTRATtCM
VetuwiUII
ARIA |Cut Orath |Vrf>m (VJ_
Concentration (Con]
V*Con
CANA11
Sl» LSfl 295.E
43:
1177.95
CANAL J
38571 LSti mK
4.!
1091.96
CANALS
1789 Lw| 103.31
6!
63052
CANAL?
iisel lscI ma
2S3.9S
CANAL 9
[fad 1«] 9447
12 76
t** >0
CANAL 10
1471 LS0 84.9!
S
2S49.73
CANAL 71
Ji73 . L5H 96.61
25.055
242187
CANAL 12
IStwl l_»j K5<
961
CANAL 13
U«l LSfl 74.*
905
672.44
CANAL 14
17aJ 1S« 99 7;
10.7)
1075.03
CANAL IS
1374| Lid 79 3!
19 925
ivn w
CANAL 16
1&»I 1 scl 94.1:
' - iff.
7S9.SS
CANAL 17
2OB9I ISA l»7t
IE
228.12
CANAL 13
T1>1 Lid 122-55
tl li
1J7O07
CANAL 19
644M l_5fi| j72.CC
3.6i
1346.96
CANAL 20
ISmI 1.U 91.75
15 2!
1402.87
CANAL 31
136?) LttJ 786!
10415
813.5?
CANAL 22
tttJ LSel *84
6.9"
533. JC
CANAL 23
ie3<| isel 94.41
2.E
27Z84
CANAL 24
14661 IStJ 84.X
12.6!
1074.02
CANAL 25
164si Lsel 2£
j X to
PROJECT NO.
CHECKED BY
ORAWING SCALE
GRAPHVC 9CM.E
SCALE: 1*-5Q'
25 50
SHEET TITLE
STORMWATER
DRAINAGE SWALE
MITIGATION AREA
VORONOI CELL
DISTRIBUTION
DRAWING NO.
V- 5.3
hwwwwtiwriviAKWwrTiCM wiMicvinkiiwTiOH^
-------
AHachmmt 5.
: . 4 . v, ¦ APPENDIX A.
State Enhanced Remedy - Performance Standards
I MADEP 401 Water Quality Program Standards: Dredge & Fill'
1. Anti-degradation provisions of the Massachusetts Surface Water Quality Standards
protect all waters, including wetlands. The Contractor shall take all steps necessary
• " to assure that the proposed activities will be conducted in a manner, which will avoid
! violations of said standards. '
2. Prior to the start of in-water work, the SER Project Manager (SER PM) shall be
" "" riotified of any proposed change(s)"in plans that may affect waters or wetlands.
3. Environmental 'Monitor. The contractor shall' employ? an "Environmental Monitor" (EM).
An assistant to the EM shall be hired if needed. The EM shall have a minimum of five
(5) years experience in wetlands" protection, erosion and sedimentation control, water
quality monitoring, site maintenance, site drainage, dredging operation management and
general site construction. The EM shall verify the placement and performance of
erosion/sediment/turbidity control measures and shall, have the aiithority to halt
construction for erosion control purposes or for other threats to public health, safety or
the env ironment. ' The name and phone number(s) of the EM and his or her assistant, if
heeded, and back-up shall be provided to the'Department and other governmental
agencies charges with oversight of the project so that s/he may be contacted on a 24-hour
basis'/seyen days a week to address any emergency situation. The EM shall be
authorized to contact the Department directly for any matter involving wetland
protection. The EM shall submit bi-weekly reports to the Department, following the
commencement of construction and continuing until' completion of work in resource
areas. The bi-weekly reports shall summarize, by station location, the status of
constnaction, the condition of the site, the weather conditions and shall report any
erosion, sedimentation, discharge or pollution problems and how they were corrected,
along with recommendations on how to prevent similar problems in the future. The EM .
shall immediately report any erosion, sedimentation or pollution problems to the Resident
Engineer(s), who shall take immediate'steps to correct those problems. The EM shall
immediately report any unauthorized discharges of sediments to the Department and
• ¦ • Resident Engineer(s) who shall take immediate steps to correct those problems. The EM
shall submit annual reports for a minimum of five years to the DEP Greenbush Designee
following completion of replication area construction and shall submit an outline of the
report for approval by the Department prior to preparation of the first report.
4. All dredge arid fill activities shall meet NO AA & Mass DM F conditions to protect winter
flounder spawning & the alevvife fish run that passes through the harbor to the Acushnet
Sawmill Pond spawning area. ' -
5. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project, proposing both
non-structural and structural BMPs to limit erosion & sediment laden discharge during
-------
land clearing filling and construction, shall be prepared and submitted to the Department
for prior review and written approval prior to commencement of. The SWPPP shall
emphasize measures to contain aiid prevent sediment laden water from being discharged,
from dewatering activities from areas within the bulkhead sheet pile that is to serve as a
containment device. Further, the SWPPP shall meet the criteria established for such plans
contained in the NPDES Construction General Permit.., All proposed dewatering shall 1
be identified in the site specific SWPPPs and shall not exceed the following limits when
discharged: . - . ; ,
a): pH: pH shall be 6.5 to 8.5 for discharge to salt water-bodies. The SWPPPs, shall
identify the specific measures to be taken to adjust the-pH to acceptable limits [for
example, carbon dioxide (C02) bubbling when concrete pouring is also occurring],
6. As proposed, silt-curtains and absorbent booms shall ;b,e deployed to enclose the area
being dredged and filled. The contractor's plan for deployment of the silt
curtains/absorbent booms shall be submitted to the Department and SER PM for
review prior to the start of in-water-work. Should .the deployment of silt-curtains
prove not feasible or be unsuccessful, the SER;PM will be notified prior to any
dredging without silt curtains. . ; , ,
7. Water Quality Monitoring: ..
a. When the dredging and filling operation .is contained within a silt-
curtained area, the following water-quality monitoring-program shall.be
. carried,out daily for the first three, days of activities commencing and once a
week thereafter for dredging .operations and during those times when . ;
deiwatering activities are ongoing from.the terminal fill operation :
i. A reference location shall be establisheioutside of and - .
approximately-200-feet from the silt-curtained area and a
. monitoring location shall be-established
-------
. Reference Site Turbidity'(NTUs) .
Permissible Turbidity Increase
• . .. . <10 , : ' , •
¦ ; Reference plus 20 NTUs
• 11-20 , ... .. .
. Reference plus 15 NTUs
>21
Reference plus 30% of reference
- v. , If, in two consecutive monitoring events, the average turbidity at
the monitoring site exceeds the average turbidity at the reference
.¦ site by more than the permissible turbidity increase, then water
. . samples, composited over the entire water column, from both the
monitoring and reference sites shall be collected and submitted for
analysis of Total Suspended Solids, dissolved PCBs, arsenic,
. cadmium, copper, chromium, lead, mercury, nickel, and zinc.
When samples are -submitted to the. laboratory, a 36-hour turn-
¦ ^ round time shall be requested. Additionally, the Proponent, or
' . ' •» their-contractor,-shall take operatidnal action(s) designed to limit
. . - ' - ¦ such exeeedences, such as increasing the dredge cycle time,
*; ' r inspection and any necessary repair, of the silt curtains,
\ deployment of ah additional row. of silt curtains or other mitigation
i measures. Turbidity monitoring shall continue on the schedule
outlined in Section 6.a.iii, until,compliance is reestablished.
• vi. , If compliance can not-be reestablished within 48 hours, dredging
; • ¦ shall cease? and Department and any other interested local, state, or
, - federal agency staff, in consultation with the Proponent, their
contractors and/or'consultants shallreview the operational actions
undertaken, the results of the analyses of the water samples and
evaluate the biological significance of the available data and
' ¦ i determine the requirements for additional mitigation, if any.
b. Should the deployment of silt-curtains prove not possible or be
unsuccessful, the following .water-quality monitoring program shall be carried
out daily, for the first.three-days of activities commencing and twice a week
thereafter for dredging activities arid during those times when dewatering
¦ activities are ongoing.from the terminal fill operation:
, ; i ¦ i. . A reference location shall be established approximately 200-feet
up-current from the dredge and a monitoring location shall be
¦ established 200-feet down-current from the dredge^
¦, ii. Turbidity shaH-be-measured, using an-Optical backscatter sensor, at
' r . both the reference loca:tion and the monitoring location, at
• - • , establisheddepths: near the water-ssurface, atthemid-point of the
. . water column and near the bottom. The three depth values
obtained shall be averaged, such that a single, representative
- turbidity value is calculated for the reference location and a single,
¦ repiresentative:tufbidity value is calculated for the monitoring
location. •' ; ' - ,
iii. Turbidity shall be measured at both the reference location and at
! r . the edge of tKe rriixing zone prior to the start of dredging, and once
: every two hours of dredging.
-------
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the edge of the
'mixing zone exceeds the reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
:¦ <10 • •! ¦ - •" •:> t-
:¦' . • .- 'Reference plus 20 NTUs
, • ' 11-20
• i' " ( Reference plus 15 NTUs
21-30 • . .
. 1 . Reference plus 10 NTUs
/¦;- .r-r . >31
; ^ Reference plus 30% of reference
-• v. If, in two consecutive monitoring events, the average turbidity at
the edge of the mixing zone exceeds the average turbidity at the
, reference site plus the permissible'.turbidity increase, then water
i •. •••samples, composited'overthe; entire water column, from both the
. . " < , ,. reference location and the edge of the mixing zone shall be
collected :and submitted fpr-analysis;of Total Suspended Solids,
.. dissolved PCBs, arsenic, :cadmiumy copper, chromium, lead,
mercury, nickel, and zinc. When samples are submitted to the
laboratory, a 36-hour turn-round time shall be requested.
Additionally, the Proponent, on their contractor, shall take
: ,: • ^.operational action(s),designed .to limit such;exceedences, such as
¦ ;. increasing the dredge cycle^time',-inspection and any necessary
•» ' . repair,/of the. silt, curtains, deployment of an additional row of silt
: curtains or othertmitigation measures. Turbidity monitoring shall
continue, on the schedule outlined in Section 6.b.iii, until
•, compliance is reestablished.
• vi. If compliance cannot be reestablished within 48 hours, dredging
v , ¦ shall.cease and the Department and any.other interested local, state
... . . or,federal agency staff, in-.cbnsultation with >the Proponent, their
. contracts and/or corisultants shall review the operational actions
: ... •- undertaken, the results of the analyses of the water samples and
^ evaluate the'biological significance of the available data and
J. • determinejthe .requirements for.additional mitigation, if any.
8. As proposed,'dredging of contaminated, silty.sediment shall be done using a closed,
environmental,'clamshell J)ucketvf/;\^erevpilingS''pr:ptfter debris are found to interfere
with environmental bucket.closure. or equipment operation, a conventional clamshell
, . bucket may be.used to extract'the pilings/debris. Sediment removal during such
• activity .shall ,be minimized tp the greatest extent practicable. Should dredging with
the environmental bucket .become unfeasible or unsuccessful, the SER PM must be
; notified prip.r to any cpntaminated. sediment dredging»not using the environmental
. bucket, and the contractor must also continue to imeet the project water quality
standard performance standards. ' ;
9... Water discharged fromfthe barge shall fbe; appreciably; free of suspended sediment and
meet the water quality criteria; established in Section 4 (above). Any free liquid
-------
¦ flowing from the barge in the harbor shall be passed through a sand media filter or
equivalent filtration system (which must be approved by the project Resident
, Engineer) prior.to discharge. . * ' . • .
12 The Resident Engineer and EM shall be responsible for anticipating the need for and
installation of additional erosibn/sediment/turbidity controls and shall have the
authority to require additional control measures to protect the resource areas beyond
• i what.is shown on the plans, if field conditions or,professional-judgment dictate that
additional protection is necessary... v. cV -. • : v : !' ''
13. Emergency Response/Spill Prevention Plan: Included in said Plan shall be the contact
. responsible for shutting down BMPs discharging to the New Bedford Harbor in the
*, event of a spill and maintenance practices to be employed to make sure gate valves or
other..-shutidovvn measures work appropriately to pfey,ent;spills -from entering the
adjacent waters.
14. During dewatering, if necessary, the discharge point shall be protected..- Water from
dewatering activities, shall be filtered viathe use of a.portable sedimentation tank that
removes suspended solids, temporary sedimentation basins, or other means prior to
discharge. n'-r • ¦/ •
1S5. Dieselr.powered.equipment shall be fitted \yith;after-:engine.emissions controls such as
oxidation.eatalysts or particulate filters; ¦ ; - •; ! >
16. WithinSOdaysof.thecompletion ofthe-initial dredging, a bathymetric, survey of the
. . . dredge footprint, depicting post-dredge-conditions, shall be sent'to the MADEP SER
Project Manager.
17. Disposal of any volume of dredged material at any location in tidal waters is subject
to approval by the Department and the Massachusetts Coastal Zone Management
. -office. . ; :: :'
18. A basieline condition report detailing existing conditions of all areas proposed to be
r transformed to salt marsh shall be submitted to the. Department, An annual progress
report shall be produced atthe end of each year following construction of the salt
marsh area for a period of five (5) years, and shall be submitted by the EM to the
Department, no later than December 30 of each yearsAH reports shall be prepared in
a - , the same ,foiroat so that a "comparison can "be. made from* each yeair to the next. The
first annual report shall be prepared and submitted no later, than December 30 of the
first year following the implementation of the salt marsh creation. The existing
: conditions report and all annual reports: shall include, in. textual, tabular'and graphic
formats, percent of vegetative cover, a list of plant species, coverage'of wetland
a plants as a percentage of aH plants, and an evaluation of-relative plant vigor (i.e.
mortality rate of existing species and number or new species) and any changes
observed in soils or hydrology. Additionally, the report shall include representative
photographs of site conditions and recommendations for improvement. These reports
shall also summarize agency consultations pertaining to the restoration project, the
-------
¦ • V remedial responses to those problems and appropriate.recommendations for future
, project. ; ¦* - ...
19. Any changes made to documents submitted shall be" immediately forwarded to the
Department for review and comment.
MADEP Chapteri91 Waterways Standards:- r '
1.. Acceptance of these Waterways Conditions shall constitute an agreement by the
Proponent to conform to all terms and conditions hereint. : .<• : ?"' . n
2.. All subsequent maintenance dredging'arid'transportation and disposal of this dredge
¦ material,- during -the term-of this project shall cdnform .ti) all . standards'and conditions
, applied to the'original dredging operation performed under-this Project.
3. After completion of the. work authorized, the Proponeht;shall furnish to the !
Department a suitable plan showing the depths at mean low water over-the area
¦ dredged. Dredging under this Project shall: be conducted so as to cause no
unnecessary obstruction of,the free passage of vessels, and care shall be taken to
cause no shoaling. If, however, any shoaling is caused, the Proponent shall at his/her
expense, remove the shoal areas. The Proponent shall pay all costs of supervision,
'and if at any time the. Department deems necessary a survey or surveys of the' area
dredged, the Proponent shall pay all costs associated with such work:
4. The Proponent;shall, :at: least.three days prior to,the commencement of.any dredging
>i' in tide .water, give written notice to the . Department ofi,the time,-location,'and amount
of the proposed work. ' *
Special Waterways Conditions /;¦ <- , r . -
L Dredge material shall be transported to suitable disposal facilities; unregulated
dumping of dredge materials is not permitted.
2^ The'Prop'onent shall develbpiand'implement a NavigatiohcPlan to address and
mitigate temporary impacts'jto navigation;during dredgingiactivities.' •
3. iThe Proponent-shall provide and maintain in good .working order appropriate United
' . States Coast Guard (USCG)approved navigation aids:to: assist mariners in avoiding
work areas as required by the. USCG. ¦ -1
.4: .The. Proponent shall maintain -vehicular ;access to:water-dependentiUsers throughout
. construction activities. As part of the final, design plan, the Proponent describes the
; . means by;.which the publicjshall provide reasonable measure to provide'dn-foot
,, public passage consistent with the need to'avoid:undue1,interference with-the waters-
dependent uses of the. project. • ; < .
-------
5. The Proponent shall remove and properly dispose of all temporary structures no later
than three (3) months after completion of the dewatering and amendment of the •
sediments. Temporary structures are defined as berms and dikes; lime silo;
dewatering tanks, erosion and sediment control systems, pipes, and siltation curtains.
6. Modification to this Project: the SER PM, may review on an individual basis,
modifications to construction activities and/or temporary structures which represent
and insignificant deviation from original specifications, in terms of configuration,
materials or other relevant design or fabrication parameters as determined by DEP
within all areas of construction. Such review shall be in accordance with the
following procedure:
a. The Proponent shall submit a written request describing the proposed
modifications to the work accompanied by plans, for prior review of the DEP.
The DEP will consider comments submitted within ten (10) days of the DEP's
receipt of the request. The DEP will send any significant modifications to the
Resource Agencies for review and comment and to identify any future
Performance Standards, if necessary. EPA will also have the opportunity to
make a consistency determination if the change is significant, as necessary.
The DEP will notify the Resource Agencies of any minor modifications.
7. After completion of the work authorized the Proponent shall furnish the Department a
suitable plan showing the depths at mean low water over the areas dredged within 90
days of completion if each phase of the dredging.
-------
AM)mmf Id.
Minimum Air Monitoring Standards and Requirements
1. The Air Quality Management and Monitoring Plan ("the Plan") shall include:
a. The means and methods used to perform the proposed Project upland
work. The means and methods shall be designed and implemented in a
manner that minimizes airborne PCBs and particulates (and asbestos) to
the maximum degree practicable. The Plan will detail the means and
methods to be used to maintain.airborne PCB levels at the performances
standards specified in Item 3, below. The Plan will be in effect
continuously until completion of the work.
b. A description of how the proponent will:
¦ Establish a minimum of 4 perimeter air monitoring locations;
¦ Define air monitoring procedures, parameters and detection limits and
the process for modification to these with EPA approval. Air
monitoring parameters shall include particulates (PMio), PCBs,
asbestos, and lead.
¦ Define air monitoring frequency based on site activity and the process .
for modifying frequency with EPA approval;
¦ Establish background levels; and,
¦ Calculate a running average of airborne PCB levels monitored at each
air monitoring location during performance of the work. This station-
specific average shall be submitted to EPA within three days of receipt
of the laboratory data.
. 2. Aroclor versus PCB Homolog Analysis: To be consistent with previous airborne
PCB sampling from other site remediation activities in and around the Harbor,
EPA recommends at a minimum, that the total homolog approach be used to
determine the concentration of total PCBs in air. However, if the proponent can
demonstrate, through the performance of a comparative analysis study showing
the results of paired homolog versus Aroclor data, that airborne Aroclor data are
equivalent to total homolog data at the South Terminal upland work area, EPA -
will consider use of the Aroclor approach as an alternative. Proponent must first
propose and EPA approve, the method for the comparative analysis prior to its
implementation.
3. Proponent shall use best management practices to comply at all times during
performance of the work with air quality performance standards. On the upland
area, the point of compliance for air quality performance standards shall be the
Page 1 of 2
Air Monitoring Standards
-------
property boundary. At a minimum, a fence shall be constructed along the
property boundaries during remedial activities. At no time during the
performance of the remedial work shall levels exceed the following standards:
¦ Airborne particulates (PMio): not to exceed 100 ug/m (10 hour TWA).
¦ Airborne PCBs: not to exceed background or 0.10 ug/m , whichever is
higher.
¦ Airborne asbestos: not to exceed 0.1 fiber/cc.
¦ Lead: not to exceed 50 ug/m .
Proponent may propose an alternate PCB standard (Not To Exceed 0.260 ug/m3)
for properties along the fence line where no residential property exists within 200
feet of said fence line.
In the event of an exceedance, the Commonwealth shall immediately cease work
and submit a proposed corrective action plan. Work shall resume only with
EPA's approval and upon implementation of the corrective action plan.
Page \2of2
Air Monitoring Standards
-------
H-Hdchmtni 1.
184 HICK STREET
suite 502
BOSTON MA 02110
(617) 728-0070
}£1£L
B6VMW-A
• **-*« PROPOSED REMEDIAL
•ySOU EXCAVATION J
LIMITS /
THE PROPOSED BORING IOC* IONS
SHOWN HEREON ARE APPROXIMATE
PROPERTY LINES AND OWNERSHIP 5*0WS
MCREON ARE FOR REFERENCE ONLY ANO
BASED ON AN CUCTHONIC PLAN
PROVOED HV THOMPSON fMLAMO. WC.
ins piam is not intended to ec used
AS A PLAN or RECORD. OH FOR THE
OCtHWWATtON Of PROPERTY u*CS.
PROPOSED REMEDIAL
SCIUL EXCAVATION-
LIMITS
BACKGROUND •WAGES SHO*N KRtCH
ARC PROUOCD COURTES* 0* MASSOS
STRUCTURES AMD FEATURES I OCA TEC
8C*0N0 THE PROJECT UWTS. WE TAKEN
FROM Mi AERIAL SURVE* CONDUCTED BY
THE ARMY CORPS ty ENGINEERS A*0
SHOULD BE CON&QCRED APPROBATE
w.u
rrr\ proposed «*. excavation
X/.£ PC8 CONCENTRATION > JJ. PPM
rr? PROPOSED SOU. E*C*v*TiCN
UUJ ^PH/TPH CQNCgXtOAnQN > ICQ
-------
fHiachfriLni d,
NEW BEDFORD MARINE
COMMERCE TERMINAL
AREA FOR TSCA
DETERMINATION
Scan: '"-NT
0 40 80 tfio
2*0 *££'
&oi* «/»9/l2
•Vo) M iy
0»tk GCO
Onwro Jtfi
JGfc. Ho, M15
L«t R*« 7/7/10
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(2)
Draft Second Modification to TSCA §761.61(c) Determination
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(2)
Second Modification to November 12, 2008 TSCA § 761.61(c) Determination
In its November 12, 2008 TSCA Determination (Determination), EPA found that disposal of
PCB-contaminated sediment into CAD Cells located north of Route 6 in New Bedford Harbor
would not pose an unreasonable risk to human health or the environment provided certain
conditions were met. This Determination was based on information set forth in the draft April
2007 CAD Cell #2 Pre-Design Work Plan and Section 01135 of the November 2008 Phase III
Contract Specifications for the New Bedford Harbor navigational dredging.
On June 18,2012, a modification to the Determination authorized disposal of approximately 6,000
cubic yards of PCB-contaminated sediment with less than (<) 50 parts per million (ppm) that will
be generated by AGM Marine, Inc. from its property located at 7 Fish Island into CAD cell #2.
EPA found that disposal of these < 50 ppm PCB-contaminated sediment into CAD cell #2 would
not pose an unreasonable risk to human health or the environment provided the certain conditions
are met, including but not limited to compliance with all conditions contained in the November 12,
2008 TSCA Determination.
The Commonwealth of Massachusetts submitted a request for inclusion of a 28.25 acre marine,
terminal consisting of 6.85 acres of filled waters (referred to as "the confined disposal facility" or
the "CDF") and approximately 21.4 acres of upland area, (including the ancillary properties)
(referred to as the "upland area") in the South Terminal location of the New Bedford Harbor in
New Bedford, Massachusetts as well as the dredging and filling associated with that construction,
including dredging and filling of confined aquatic disposal cells (collectively the "proposed
Project", the "Project", or the "South Terminal Project") into the New Bedford Harbor State
Enhanced Remedy ("SER"). CDF construction will include dredging of sediments within the
CDF footprint that are not suitable for construction and disposal of these sediments, into a newly
designed CAD cell #3. Construction of the CAD cell #3 will require removal of
PCB-contaminated soils, which will be disposed of within existing CAD cell #2. In addition, the
Commonwealth has requested disposal of PCB-contaminated sediments located in the drainage
swale adjacent to the hurricane barrier into CAD cell #2. The sediments to be disposed of into
CAD cell #2 contain PCB concentrations at or below those sediments previously disposed of in
CAD cell #2.
Based on information provided, I have determined that disposal of the CAD cell #3 sediments, the
drainage swale sediments, and potentially some sediment from the footprint of the CDF into CAD
cell #2 does not pose an unreasonable risk to human health or the environment as long as the ¦
following conditions are met:
1. Compliance with water quality and turbidity performance standards as specified by
Attachment 5 to this TSCA Determination is maintained, at a minimum. (Attachment 5
may also be found at Appendix C to EPA's Draft Determination.) If, as a result of EPA's
consultation with NMFS related to the Atlantic sturgeon, it is determined that the standards
are not protective, EPA will impose additional requirements;
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(2)
2. Compliance is maintained with conditions previously established for management and
disposal of PCB-contaminated sediments into other CAD cells under TSCA Determination
November 12, 2008; and,
3. Any dredged material that accidently comes to be located outside of CAD cell #2 during
disposal (e.g., "missing" the cell during placement or from "surge" related overflow during
placement) is removed and placed into the CAD cell #2.
This Modification to the November 12, 2008 TSCA Determination is based on the information
contained in the Administrative Record for the South Terminal project. Any proposed change(s)
to the work described in those submittals shall be provided to EPA. Upon review, EPA may find
it necessary to revise this determination or issue a new TSCA determination based on the proposed
change(s).
James T. Owens, III Date
Director, Office of Site Remediation & Restoration
Attachment 5: State Enhanced Remedy - Water Quality and Turbidity Performance Standards
2
-------
5.
APPENDIX A
State Enhanced Remedy - Performance Standards
MADEP 401 Water Quality Program Standards: Dredge & Fill
1. Anti-degradation provisions of the Massachusetts Surface Water Quality Standards
protect all waters, including wetlands. The Contractor shall take all steps necessary
to assure that the proposed activities will be conducted in a manner, which will avoid
violations of said standards.
2. Prior to the start of in-water work, the SER Project Manager (SER PM) shall be
notified of any proposed change(s) in plans that may affect waters or wetlands.
3. Environmental Monitor. The contractor shall employ an "Environmental Monitor" (EM).
An assistant to the EM shall be hired if needed. The EM shall have a minimum of five
(5) years experience in wetlands protection, erosion and sedimentation control, water
quality monitoring, site maintenance, site drainage, dredging operation management and
general site construction. The EM shall verify the placement and performance of
erosion/sediment/turbidity control measures and shall have the authority to halt
construction for erosion control purposes or for other threats to public health, safety or
the environment. The name and phone number(s) of the EM and his or her assistant, if
needed, and back-up shall be provided to the Department and other governmental
agencies charges with oversight of the project so that s/he may be contacted on a 24-hour
basis, seven days a week to address any emergency situation. The EM shall be
authorized to contact the Department directly for any matter involving wetland
protection. The EM shall submit bi-weekly reports to the Department, following the
commencement of construction and continuing until completion of work in resource
areas. The bi-weekly reports shall summarize, by station location, the status of
construction, the condition of the site, the weather conditions and shall report any
erosion, sedimentation, discharge or pollution problems and how they were corrected,
along with recommendations on how to prevent similar problems in the future. The EM
shall immediately report any erosion, sedimentation or pollution problems to the Resident
Engineer(s), who shall take immediate steps to correct those problems. The EM shall
immediately report any unauthorized discharges of sediments to the Department and
Resident Engineer(s) who shall take immediate steps to correct those problems. The EM
shall submit annual reports for a minimum of five years to the DEP Greenbush Designee
following completion of replication area construction and shall submit an outline of the
report for approval by the Department prior to preparation of the first report.
4. All dredge and fill activities shall meet NOAA & MassDMF conditions to protect winter
flounder spawning & the alewife fish run that passes through the harbor to the Acushnet
Sawmill Pond spawning area.
5. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project, proposing both
non-structural and structural BMPs to limit erosion & sediment laden discharge during
-------
land clearing filling and construction, shall be prepared and submitted to the Department
for prior review and written approval prior to commencement of. The SWPPP shall
emphasize measures to contain and prevent sediment laden water from being discharged
from dewatering activities from areas within the bulkhead sheet pile that is to serve as a
containment device. Further, the SWPPP shall meet the criteria established for such plans
contained in the NPDES Construction General Permit., All proposed dewatering shall
be identified in the site specific SWPPPs and shall not exceed the following limits when
discharged:
a) pH: pH shall be 6.5 to 8.5 for discharge to salt water bodies. The SWPPPs shall
identify the specific measures to be taken to adjust the pH to acceptable limits [for
example, carbon dioxide (C02) bubbling when concrete pouring is also occurring].
6. As proposed, silt-curtains and absorbent booms shall be deployed to enclose the area
being dredged and filled. The contractor's plan for deployment of the silt
curtains/absorbent booms shall be submitted to the Department and SER PM for
review prior to the start of in-water-work. Should the deployment of silt-curtains
prove not feasible or be unsuccessful, the SER PM will be notified prior to any
dredging without silt curtains.
7. Water Quality Monitoring:
a. When thfe dredging and filling operation is contained within a silt-
curtained area, the following water-quality monitoring program shall be
carried out daily for the first three days of activities commencing and once a
week thereafter for dredging operations and during those times when
dewatering activities are ongoing from the terminal fill operation :
i. A reference location shall be established outside of and
approximately 200-feet from the silt-curtained area and a
monitoring location shall be established outside of and within 15-
feet of the silt-curtain.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference and monitoring locations, at established depths:
near the water's surface, at the mid-point of the water column and
near the bottom. The three values obtained shall be averaged, such
that a single, representative turbidity value is calculated for the
monitoring site and a single, representative value is calculated for
the reference site.
iii. Turbidity shall be measured at both the monitoring and reference
site prior to the start of dredging, and once every two hours during
dredging.
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the monitoring
site exceeds the average reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
-------
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
>21
Reference plus 30% of reference
v. If, in two consecutive monitoring events, the average turbidity at
the monitoring site exceeds the average turbidity at the reference
site by more than the permissible turbidity increase, then water
samples, composited over the entire water column, from both the
monitoring and reference sites shall be collected and submitted for
analysis of Total Suspended Solids, dissolved PCBs, arsenic,
cadmium, copper, chromium, lead, mercury, nickel, and zinc.
When samples are submitted to the laboratory, a 36-hour turn-
round time shall be requested. Additionally, the Proponent, or
their contractor, shall take operational action(s) designed to limit
such exceedences, such as increasing the dredge cycle time,
inspection and any necessary repair, of the silt curtains,
deployment of an additional row of silt curtains or other mitigation
measures. Turbidity monitoring shall continue on the schedule
outlined in Section 6.a.iii, until compliance is reestablished.
vi. If compliance can not be reestablished within 48 hours, dredging
shall cease and Department and any other interested local, state, or
federal agency staff, in consultation with the Proponent, their
contractors and/or consultants shall review the operational actions
undertaken, the results of the analyses of the water samples and
evaluate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
b. Should the deployment of silt-curtains prove not possible or be
unsuccessful, the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and twice a week
thereafter for dredging activities and during those times when dewatering
activities are ongoing from the terminal fill operation:
i. A reference location shall be established approximately 200-feet
up-current from the dredge and a monitoring location shall be
established 200-feet down-current from the dredge.
ii. Turbidity shall be measured, using an optical backscatter sensor, at
both the reference location and the monitoring location, at
established depths: near the water's surface, at the mid-point of the
water column and near the bottom. The three depth values
obtained shall be averaged, such that a single, representative
turbidity value is calculated for the reference location and a single,
representative turbidity value is calculated for the monitoring
location.
iii. Turbidity shall be measured at both the reference location and at
the edge of the mixing zone prior to the start of dredging, and once
every two hours of dredging.
-------
iv. An exceedance of the project turbidity standard shall be attributed
to project activities when the average turbidity at the edge of the
mixing zone exceeds the reference site turbidity plus the
permissible turbidity increase, as outlined in the following table:
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase
<10 -
Reference plus 20 NTUs
11-20
Reference plus 15 NTUs
21-30
Reference plus 10 NTUs
>31
Reference plus 30% of reference
v. If; in two consecutive monitoring events, the average turbidity at
the edge of the mixing zone exceeds the average turbidity at the
reference site plus the permissible turbidity increase, then water
- ' samples, composited over the entire water column, from both the
reference location and the edge of the mixing zone shall be
collected and submitted for analysis of Total Suspended Solids,
dissolved PCBs, arsenic, cadmium, copper, chromium, lead,
mercury, nickel, and zinc. When samples are submitted to the
laboratory, a 36-hour turn-round time shall be requested.
Additionally, the Proponent, or their contractor, shall take
operational action(s) designed to limit such exceedences, such as
increasing the dredge cycle time, inspection and any necessary
repair, of the silt curtains, deployment of an additional row of silt
curtains or other mitigation measures. Turbidity monitoring shall
continue.on the schedule outlined in Section 6.b.iii, until
compliance is reestablished,
vi. If compliance cannot be reestablished within 48 hours, dredging
shall cease and the Department and any other interested local, state
or federal agency staff, jn consultation with the Proponent, their
contracts and/or consultants shall review the operational actions
undertaken, the results of the analyses of the water samples and
evaluate the biological significance of the available data and
determine the requirements for additional mitigation, if any.
8. As proposed, dredging of contaminated, silty sediment shall be done using a closed,
environmental, clamshell bucket.; Where pilings or other debris are found to interfere
with environmental bucket closure or equipment operation, a conventional clamshell
, bucket may be used to extract the pilings/debris. Sediment removal during such
activity shall be minimized to the greatest extent practicable. Should dredging with
the environmental bucket become unfeasible or unsuccessful, the SER PM must be
notified prior to any contaminated sediment dredging not using the environmental
bucket, and the contractor must also continue to meet the project water quality
standard performance standards.
9. Water discharged from the barge shall be appreciably free of suspended sediment and
meet the water quality criteria established in Section 4 (above). Any free liquid
-------
flowing from the barge in the harbor shall be passed through a sand media filter or
equivalent filtration system (which must be approved by the project Resident
Engineer) prior to discharge.
12 The Resident Engineer and EM shall be responsible for anticipating the need for and
installation of additional erosion/sediment/turbidity controls and shall have the
authority to require additional control measures to protect the resource areas beyond
what is shown on the plans, if field conditions or professional judgment dictate that
additional protection is necessary.
13. Emergency Response/Spill Prevention Plan: Included in said Plan shall be the contact
responsible for shutting down BMPs discharging to the New Bedford Harbor in the
event of a spill and maintenance practices to be employed to make sure gate valves or
other shut down measures work appropriately to prevent spills from entering the
adjacent waters.
14. During dewatering, if necessary, the discharge point shall be protected. Water from
dewatering activities shall be filtered via the use of a portable,sedimentation tank that
removes suspended solids, temporary sedimentation basins, or other means prior to
discharge.
15. Diesel-powered equipment shall be fitted with after-engine emissions controls such as
oxidation catalysts or particulate filters.
16. Within 30 days of the completion of the initial dredging, a bathymetric, survey of the
dredge footprint, depicting post-dredge conditions, shall be sent to the MADEP SER
Project Manager.
17. Disposal of any volume of dredged material at any location in tidal waters is subject
to approval by the Department and the Massachusetts Coastal Zone Management
office.
18. A baseline condition report detailing existing conditions of all areas proposed to be
transformed to salt marsh shall be submitted to the Department, An annual progress
report shall be produced at the end of each year following construction of the salt
marsh area for a period of five (5) years, and shall be submitted by the EM to the
Department, no later than December 30 of each year. All reports shall be prepared in
the same format so that a comparison can be made from each year to the next. The
first annual report shall be prepared and submitted no later than December 30 of the
first year following the implementation of the salt marsh creation. The existing
conditions report and all annual reports shall include, in textual, tabular and graphic
formats, percent of vegetative cover, a list of plant species, coverage of wetland
plants as a percentage of all plants, and an evaluation of relative plant vigor (i.e.
mortality rate of existing species and number or new species) and any changes -
observed in soils or hydrology. Additionally, the report shall include representative
photographs of site conditions and recommendations for improvement. These reports
shall also summarize agency consultations pertaining to the restoration project, the
-------
remedial responses to those problems and appropriate recommendations for future
project.
19. Any changes made to documents submitted shall be immediately forwarded to the
Department for review and comment.
MADEP Chapter 91 Waterways Standards:
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Proponent to conform to all terms and conditions herein.
2. All subsequent maintenance dredging and transportation and disposal of this dredge
material, during the term of this Project shall conform to all standards and conditions
applied to the original dredging operation performed under this Project.
3. After completion of the work authorized, the Proponent shall furnish to the
Department a suitable plan showing the depths at mean low water over the area
dredged. Dredging under this Project shall be conducted so as to cause no
unnecessary obstruction of the free passage of vessels, and care, shall be taken to
cause no shoaling. If, however, any shoaling is caused, the Proponent shall at his/her
expense, remove the shoal areas. The Proponent shall pay all costs of supervision,
and if at any time the Department deems necessary a survey or surveys of the area
dredged, the Proponent.shall pay all costs associated with such work.
4. The Proponent shall, at least three days prior to the commencement of any dredging
in tide water, give written notice to the Department of the time, location, and amount
of the proposed work.
Special Waterways Conditions
1. Dredge material shall be transported to suitable disposal facilities; unregulated
' dumping of dredge materials is not permitted.
2. The Proponent shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during dredging activities.
3. The Proponent shall provide and maintain in good working order appropriate United
States Coast Guard (USCG) approved navigation aids to assist mariners in avoiding
work areas as required by the USCG.
4. The Proponent shall maintain vehicular access to water-dependent users throughout
construction activities. As part of the final design plan, the Proponent describes the
means by which the public shall provide reasonable measure to provide on-foot
public passage consistent with the need to avoid undue interference with the water=-
. dependent uses of the project.
-------
5. The Proponent shall remove and properly dispose of all temporary structures no later
than three (3) months after completion of the dewatering and amendment of the
sediments. Temporary structures are defined as berms and dikes; lime silo;
dewatering tanks, erosion and sediment control systems, pipes, and siltation curtains.
6. Modification to this Project: the SER PM, may review on an individual basis,
modifications to construction activities and/or temporary structures which represent
a:nd insignificant deviation from original specifications, in terms of configuration,
materials or other relevant design or fabrication parameters as determined by DEP
within all areas of construction. Such review shall be in accordance with the
following procedure:
a. The Proponent shall submit a written request describing the proposed
modifications to the work accompanied by plans, for prior review of the DEP.
The DEP will consider comments submitted within ten (10) days of the DEP's
receipt of the request. The DEP will send any significant modifications to the
Resource Agencies for review and comment and to identify any future
Performance Standards, if necessary. EPA will also have the opportunity to
make a consistency determination if the change is significant, as necessary.
The DEP will notify the Resource Agencies of any minor modifications.
7. After completion of the work authorized the Proponent shall furnish the Department a
suitable plan showing the depths at mean low water over the areas dredged within 90
days of completion if each phase of the dredging.
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix K
Final Biological Assessment for the Roseate Tern
New Bedford Harbor - South Terminal Project, New Bedford,
Massachusetts
U.S.EPA - New England Region
July 2012
-------
FINAL BIOLOGICAL ASSESSMENT
for the ROSEATE TERN
NEW BEDFORD HARBOR - SOUTH TERMINAL PROJECT
NEW BEDFORD, MASSACHUSETTS
U.S. Environmental Protection Agency
Office of Ecosystem Protection (OEP05-2)) U.S. EPA New England Region
5 Post Office Square, Suite 100
Boston, MA 02109-3912
July 2012
-------
TABLE OF CONTENTS
Subject Page
I. Introduction 3
II. Description of Project and Action Area 4
A. Project Description 4
B. Action Area 6
III. Environmental Setting 6
A. Flora - Salt Marsh, Intertidal and Subtidal Resources 6
B. Fauna - Finfish and Shellfish 7
C. Physical Conditions - Sediments, Patterns of Circulation, Noise 11
IV. Roseate Tern Biology 12
A. Seasonal Distribution 12
B. Nesting 12
C. Staging ¦ .' • ^ . 14
D. Foraging .14
V. Effects Analysis 17
A. Direct Loss of Salt Marsh, Intertidal and Subtidal habitat 17
B. Foraging by Nesting/Migrating Terns 18
C. Effects on Prey Species In Shallow Water Habitat 18
D. Dredging Impacts to Prey Fish in Sub-tidal Environment 19
E. Noise and Traffic ' 20
F. Oil Spills and Shipping Traffic 21
G. Ecological Benefits of the Project 22
VI. Determination of Effects on the Roseate Tern 22
VII Conclusion 23
VIII. References. 24
IX. List of Contacts Made and Preparers 28
2
-------
New Bedford Harbor - South Terminal Project ,
Endangered Species Act Biological Assessment for the Roseate Tern
I. Introduction
This Biological Assessment (BA) was prepared to comply with Section 7 of the Endangered
Species Act (ESA). It assesses the potential effects of the construction and long-term operation
of the proposed New Bedford Harbor (NBH) - South Terminal project in New Bedford, MA, on
the roseate tern (Sterna dougallii), a federally listed as endangered which may occur in the area
of the proposed proj ect.1 While New Bedford Harbor is not federally designated critical habitat
for any federally endangered species, the project area provides potential habitat for nesting and
foraging for the roseate tern.
Roseate terns were once abundant in Massachusetts waters, reportedly numbering in the
hundreds of thousands, but a variety of threats has resulted in much-reduced populations.
According to the .U.S. Fish and Wildlife Service Roseate Tern Recovery Plan - Northeastern
Population (USFWS, 1998), the numbers of roseate terns were severely reduced in the 1870's
and 1880's by.commercial hunting for the millinery trade and most colonies previously recorded
colonies appear to have been eliminated at that time. The total number of remaining roseate
terns was estimated to be roughly 2,000 pairs at the lowest point in about 1890 (Nisbet 1980 in
USFWS, 1998). Following protection efforts in the 1890's and strengthened by the Migratory
Bird Treaty Act of 1918, roseate tern populations increased to a high of about 8,500 pairs in the
1930s but declined again to a low of 2,500 pairs in 1977 due to habitat loss and gull
encroachment (USFSW, 1998).
The islands in Buzzards Bay and Nantucket Sound have been among the most important nesting
sites for roseate terns in the northeast. In 2011, based upon total season estimates of roseate tern
pairs, approximately 90% of the population was concentrated at just 3 colonies: Great Gull
Island, New York (NY) (1,500 pairs); Bird Island, Marion, Massachusetts (MA) (937); and Ram
Island, Mattapoisett, MA (385). Other sites in Massachusetts included Penikese I., Gosnold
(34), S. Monomoy I., Chatham (7), Monomoy I., Chatham (3), and Plymouth Beach, Plymouth
(>1). Roseate terns were observed carrying fish into the Plymouth colony in 2007, 2008, and
2010 and presumably nested in those years; in 2011, a nest and young were confirmed.
The total nesting area available to roseate terns is limited, which increases the terns'
vulnerability to potential catastrophic events, such as oil spills or disease. The gradual loss of
breeding sites in the northeast and the roseate tern's reluctance to colonize new sites are serious
obstacles to the recovery of the northeast population.
1 EPA's draft biological assessment dated October 2010 also discussed the piping plover (Charadrius melodus),
listed as threatened; and the Northeastern beach tiger beetle (Cicindela dorsalis dorsalis), listed as threatened. Since
that time, the Region has determined that those two species are not present in the project area, and the U.S. Fish and
Wildlife Service has orally confirmed this determination (EPA Memorandum to file July 10, 20\2)
-------
II. Description of Project and Action Area
A. Project Description
The Commonwealth of Massachusetts proposes to construct an approximately 28-acre marine
terminal (South Terminal) within the Designated Port Area of the New Bedford Harbor at a site
north of and proximate to the Harbor's Hurricane Barrier (action area). The terminal will be
capable of supporting offshore renewable energy development and other future maritime uses.
The proposal is described in detail in the document entitled "State Enhanced Remedy in New
Bedford, South Terminal" and its appendices, dated January 18, 2012 and prepared by the
Massachusetts Department of Environmental Protection, "MassDEP"(MassDEP 2012). The
Commonwealth has updated and supplemented its January 18, 2012 submission with 2 additional
submissions (including attachments), dated June 18, 2012 (hereafter MassDEP 2012a) and June
29, 2012 (hereafter MassDEP 2012b).
As discussed in more detail below, the project will involve, among other things, navigational
dredging to accommodate vessels' access to ,the terminal and the construction of a solid fill
structure in waters of the U.S. to provide sufficient acreage and load bearing capacity at the
terminal site. Temporary and permanent impacts to the roseate tern may occur as a result of the
dredging and filling of aquatic habitat, and noise from pile driving and blasting (if it becomes
necessary).
EPA's Superfund ("CERCLA") regulations provide for a state to petition EPA to expand its
remedial action to include additional activities as an enhancement of the remedy (i.e., State
Enhanced Remedy or "SER"). In the case of the New Bedford Harbor remediation, the State
Enhanced Remedy involves additional navigational dredging as well as disposal of the sediments
into confined aquatic disposal ("CAD") cells (below the ocean floor) or into confined disposal
facilities ("CDFs") (above the ocean floor).
The proposed NBH - South Terminal would include construction of a 6.85 acre CDF adjacent to
the shoreline. It would be bounded by sheet piling, and capped by Dense Graded Aggregate,
which includes a mixture of gradations of aggregates. The majority of the upland that will be
incorporated into the proposed terminal was once occupied by a former textile manufacturing
complex and has been heavily disturbed. The total estimated size of the facility, including
ancillary southern properties, is currently anticipated to be approximately 28.25 acres. The main
portion of the terminal will support staging of additional dredged material for beneficial reuse
during operation of the facility.
To complete the project as proposed, a total of approximately 22.33 acres of intertidal, subtidal
and salt marsh resource areas would be altered and temporary impacts from dredging would
affect up to 38.22 acres of near-shore sub-tidal and sub-tidal areas, (see Section III or V.
Environmental Setting, below, for further discussion of resource areas).
4
-------
Figure 1: Site Location Map
South Terminal CDF Proposed Location
City of New Bedford, New Bedford, Massachusetts
Source: Expanded Avian Assessment Appendices (MassDEP, 2012)
5
-------
B. Action Area
New Bedford Harbor is located on the northern shore of Buzzards Bay and borders the
communities of Fairhaven to the east, and New Bedford to the west. The New Bedford
Hurricane Barrier seawall and floodgates (immediately south of Palmer Island) demarcates the
outer harbor from the inner harbor. There is also a federal navigation channel which leads into
the inner harbor (see Figure 1 - Site Location Map, above). The Acushnet River flows into the
northernmost part of the upper estuary and is the most significant freshwater inflow into the
harbor. The inner harbor contains several marinas, a recreational fleet, historical attractions,
commercial fishing fleet, and fish processing/cold storage facilities. Land usage along the shore
is a mixture of residential, commercial and industrial uses (MassDEP, 2012).
New Bedford Harbor is contaminated with polychlorinated biphenyls (PCBs) and heavy metals
from manufacturing discharges that occurred from 1940 to the late 1970s. The harbor sediments
are contaminated in varying degrees from the upper Acushnet River into Buzzards Bay.
Bioaccumulation of PCBs within the marine food chain has resulted in closing the area to
lobstering and fishing, and recreational activities and harbor development has been limited by the
widespread PCB problem. The source of the contamination has been attributed to two electrical
capacitor manufacturing facilities that operated between the 1940s and 1970s. One facility,
Aerovox Corporation was located near the northern boundary of the site and the other facility,
Cornell-Dubilier Electronics, Inc., is located just south of the New Bedford Hurricane Barrier.
Based on the health concerns from the site, the Environmental Protection Agency (EPA) added
the site to the National Priorities List in 1983 as a designated Superfund Site (USACE 2010).
EPA's selected remedy for site contamination involves sediment removal by dredging and the
containment of contaminated sediments. Full scale dredging began in 2004, and to date
approximately 200,000 cubic yards of contaminated sediments and soils have been remediated
(EPA, 2010a).
III. Environmental Setting
A. Flora - Salt Marsh, Intertidal and Subtidal Resources
New Bedford Harbor is a coastal embayment with a mean tidal range of approximately 3.3 feet
or 1 meter (Howes and Goehringer, 1996 in MADEP, 2010a). The primary resource areas in the
NBH- South Terminal project area include; intertidal, near-shore subtidal (existing elevation of
between -1 and -6 MLLW), deeper subtidal (existing elevation between -20 and -25 MLLW),
and salt marsh (MassDEP, 2012). Although the proposed site is surrounded by industrial
properties, the salt marsh, intertidal and sub-tidal areas provide feeding locations and potential
nesting habitat for shore birds; serve as finfish foraging and spawning habitat; and supports a
benthic and shellfish invertebrate community (see Figure 2 - Salt Marsh, Intertidal and Subtidal
Resources). The sediments within the resource area are, however, contaminated with PCBs
(MassDEP 2010a) and as such, fishing, shellfishing, and lobstering are banned within New
Bedford Harbor (EPA 2010a).
6
-------
B. Fauna - Finfish and Shellfish
New Bedford Harbor is home to a wide variety of marine life. Fisheries include both
commercial and recreational bottom dwelling and free-swimming water column resident and
migratory species. The intertidal and siibtidal areas were found to support abundant benthic and
pelagic resources, including horseshoe crabs, and provide spawning arid nursery habitat for
various species of fish. Ecologically, the harbor functions both as an ocean embayment and
estuarine environment (MADEP, 2010a). Roseate terns eat almost exclusively small marine fish
and very rarely small crustaceans such as shrimp. (Gochfeld et al., 1998) The Massachusetts
Department of Public Health (MDPH) promulgated state regulations in 1979 prohibiting the
consumption of any fish/shellfish within designated areas of NBH due to high levels of
contamination (EPA 2010b), but for wildlife utilizing these resources, the consumption of
shellfish or fish.is still an avenue for bioaccumulation of PCBs in fish and wildlife utilizing these
resources. A shellfish survey was conducted in May 2010 under the guidance of Mr. David
Whittaker, South Shore Section Leader of the MA Department of Marine Fisheries (MADMF),
in order to determine potential impacts to the local shellfish population due to the NBH-South
Terminal project construction (MADEP, 2010a). Approximately 9,817,121 quahogs, oysters
and clams are estimated to be impacted from the direct impacts'of filling and dredging in the
proposed project area. (Mass DEP, 2012a)
7
-------
Figure 2 -- Salt Marsh, Intertidal and Subtidal Resources (MassDEP,2012)
8
-------
An Essential Fish Habitat (EFH) assessment was prepared by the MassDEP for the NBH - South
Terminal project in conformance with the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) for managed fish species listed in the project vicinity.
There are twenty EFH species listed for the NBH area; three species of which are considered
potential forage for roseate terns. These include bluefish (Pomatomus saltatrix) (listed for the
presence of juveniles and adults), king mackerel {Scomber omor us cavalla) (listed for all life
stages; eggs, larvae, juvenile and adults) and Spanish mackerel (S. maculatus) (listed for all life
stages) (MADEP, 2010a). Roseate terns generally feed on the young of these larger fish species.
A fisheries study was conducted by Normandeau Associates Inc. (NAI) in New Bedford Harbor
from June 1998 to May 1999 which consisted of three near shore seine sampling stations (two in
the outer harbor and one in the inner harbor) and trawl samples along five transects (three in the
outer harbor and two in the inner harbor) in deeper waters (from 6.5 to 33 feet). As noted above
in Section II. Project Description, the demarcation between the inner harbor and the outer harbor
is the New Bedford Hurricane Barrier. (MassDEP,2012). No inner harbor sampling sites were
located in the NBH-South Terminal project area; however, the fisheries data would be
characteristic of the typical fish community in the inner and outer harbor area.
The most numerous fish species found in the NAI study at the three near shore seine sampling
stations were Atlantic silversides (Menidia menidia) (44 %), striped killifish (Fundulus majalis)
(16%), mummichog (Fundulus heteroclitus) (9%), cunner (Tautogolabrus adspersus) (7%), and
winter flounder (Psuedopleuronectes americanus) (6%). The most numerous fish found in trawl
catches (standardized for length of tow and catch for comparison purposes) were scup
(Stenotomus chysops) (23%), cunner (21%), winter flounder (13%), black sea bass
(Centropristus striata) (9%), and northern pipefish (Syngnathus fuscus) (6%). Alewife (Alosa
pseudoharengus) appeared in trawl samples in September in lesser numbers but was absent in
other months. Atlantic silversides, bay anchovy (Anchoa mitchilli) and Atlantic herring (Clupea
harengus) were also found in the trawling sampling in lesser numbers. Bluefish represented
9.3% of catch at one seine sampling station in the outer harbor area. Although known to utilize
Buzzards Bay, blueback herring, sand lance and mackerel were not found in abundance in either
the seine or trawling sampling data, most likely being tallied as part of the category of "other
species" (MADEP, 2010a).
The bluefish is a wide ranging pelagic species (Robins et al. 1986 in NOAA, 2006) that travels in
schools of like-sized individuals and undertakes seasonal migrations. They spawn off the
Atlantic coast and juveniles and adults eat whatever taxa are locally abundant. The bluefish diet
includes fish, crustaceans and polychaetes (Friedland et al. 1988 in NOAA, 2006). Mackerel is
another pelagic schooling fish; they spawn in a wide ranging area off the Atlantic coast. They
have a diet of copepod larvae and eggs, the smaller adult copepods, various other minute
Crustacea, and small fish larvae. Various other planktonic animals also enter regularly into the
diet of the mackerel. Juveniles often enter estuaries and harbors in search of food (Bigelow et
al., 2002).
The bay anchovy, because of its abundance and widespread distribution in the mid-Atlantic
Region, is a very important component food source for many sport and commercial fish
(Derickson and Price, 1973; Richards, 1976 in Morton, 1989 in USFWS, 1989) as well as sea
9 ,
-------
birds. Bay anchovy feed primarily on macrozooplankton, small benthic crustaceans, small
mollusks and detritus (Darnell, 1958, 1961 and Odum, 1971 in USFWS, 1989). In the mid-
Atlantic region, spawning generally occurs in estuarine waters where salinities are usually over
10 parts per thousand (ppt) (Dovel 1981 in USFWS, 1989). Heinemann (1992) found that
anchovy accounted for 6% of the roseate tern diet in 1990 and 4% in 1991.
Alewives and blueback herring (Alosa aestivalis) are anadromous species which return to
freshwater in the Acushnet River to spawn in the April/May timeframe. Alewife and blueback
herring are plankton feeders, subsisting primarily on copepods and pelagic shrimp, as well as on
young sand lance and other small fish fry (Bigelow et al., 2002). Herring are an important prey
source for many EFH species that occur in the New Bedford Harbor vicinity, such as bluefish
(Bowman et al., 2000 in MADEP, 20lOa). Heinemann (1992) found that herring-type fish
accounted for 8% of the roseate tern diet in 1990 and 11 % in 1991.
The sand lance (Ammodytes americanus) is an eel-like fish which grows to an average of 25
centimeters (cm) in length, and is widespread in estuarine, open coastal and off shore habitats
along the northeastern coast of the United States (Sherman et al. 1981; Morse 1982 in Auster et
al. 1986). Sand lances are important in the diet of piscivorous species of fish and birds and it is
the primary prey species for the roseate tern. Heinemann (1992) found that sand lance was the
most important prey species for roseate terns over the entire season, representing 71% of the diet.
Sand lance prey primarily on copepods, but also eat fish eggs and larvae and. Sand lances rely
on sandy bottoms for habitat and are found in somewhat patchy distributions. Strong evidence
exists that Stellwagen Bank provides spawning habitat for the sand lance (NOAA, 2010). The
sand lance was not specifically identified in abundance in the NAI seine and trawl sampling,
however, and any sand lance were most likely being tallied as part of the category of "other
species" (MassDEP, 2010a).
The Atlantic silverside is a resident fish species of New Bedford Harbor, inhabiting the salt
marsh and shallow intertidal areas. Atlantic silversides spawn in the intertidal zone of nearly all
major estuaries and tributaries (USFWS, 1983). Heinemann (1992) found that Atlantic
silversides represented approximately 10% of the roseate tern diet in 1990 and 11% in 1991 with
the tern capture rate more prevalent in the mid-July to early August timeframe. Atlantic
silversides grow to about 12 cm and are common in near shore waters, usually on sand or gravel
shores and in salt marshes at high tide. Swimming in schools of similarly sized fish, they prey
upon zooplankton, shrimp, young squid, worms and algae. They serve as food for other
predators such as birds, mackerel and bluefish (URI 2010). Exposure to contaminated sediment
during larval and juvenile development may have health implications for this species during later
life stages (MADEP, 2010a).
The foraging behavior of the fish species preferred by roseate terns increases the opportunity for
these fish to be exposed to PCBs and to bioaccumulate, either because of a longer duration of
exposure to contaminated sediment or because of a greater consumption of contaminated forage.
These prey species may, in turn, expose roseate terns to PCBs. The potential impacts of the
proposed NBH-South Terminal project on the fish species used by foraging roseate terns likely
to be found in New Bedford Harbor are discussed in Section V., Effects Analysis, below. As
discussed above, the primary prey species for the roseate tern, the sand lance, are widespread and
10
-------
are not solely confined to New Bedford Harbor. Indeed as also discussed above, sand lance were
not found in large numbers in New Bedford Harbor.
C. Physical Conditions - Sediments, Patterns of Circulation, Noise
Sediments - For descriptive purposes, the New Bedford Inner and Outer Harbor have been
divided into three areas: upper, lower (also referred to as the inner harbor) and outer harbor
based upon geographic features, basin morphology and gradients of contamination. The upper
harbor, the area north of the Coggeshall Street Bridge, has PCB contaminant levels ranging from
below detection to approximately 4,000 parts per million (ppm). The upper harbor initially had
PCB "hot spots" in the range of 100,000 ppm which were removed in 1994 and 1995 as part of
EPA's first clean up phase. The lower harbor, which lies between the Coggeshall Street Bridge
and the New Bedford Hurricane Barrier, has PCB contamination ranging from below detection to
approximately 190 ppm. The outer harbor area is defined as the area lying outside the hurricane
barrier (which was constructed in the mid-1960s) and extends out covering approximately
17,000 acres. The outer harbor has sediment PCB levels averaging approximately 1 ppm, with
localized areas approaching 50 ppm (USACE, 2010).
Long-term sediment and toxicity monitoring has been conducted in New Bedford Harbor as part
of the long term monitoring program for the New Bedford Harbor Superfund site. One of the
monitoring stations (Station 253) is located within the proposed dredging area for the NBH -
South Terminal project. The long-term sediment monitoring data for Station 253, conducted five
times between 1993 and 2009, showed an average PCB concentration of 5.7 ppm and the grain
size analysis showed an average 46.9% silt/clay component. Sediment samples were collected in
2010 and 2011 using vibracores and Russian Peat Cores within the footprint for both the proposed
dredging area and the proposed facility. (MA DEP, 2012, Section 5). Surface samples from
within the proposed dredging areas and the filled facility footprint were collected and analyzed for
PCBs (22 NOAA Congeners by Modified EPA Method 8270C). Surface samples (samples
collected from 0 to 1 foot) and fifteen Russian Peat Corer locations (five locations within the area
to be filled and ten locations from within the dredge footprint) were also analyzed for 13 Priority
Pollutant Metals (EPA Method 6020A/7471), SVOCs (EPA Method 8270C), and Total
Petroleum Hydrocarbons (EPA Method 8015).
Patterns of Circulation - Although general data regarding circulation conditions and sediment
transport within the harbor have been collected, no data exist describing the actual site-specific
sediment transport and circulation patterns within the NBH - South Terminal site. Circulation
patterns within New Bedford Harbor are primarily driven by meteorological events and mixed
semi-diurnal tidal currents (EBASCO, 1991; Howes and Goerhinger, 1996; NBHTC, 1996 in
MADEP, 2010a). Flushing of the harbor was determined to take 2 days under winter conditions,
and 8 days under summer conditions (Bellmer, 1988 in MADEP, 2010a). Local embayment and
channel restrictions produce faster currents. Examples of these locations include: within the
opening in the hurricane barrier, within the vicinity of Popes Island, and within the vicinity of the
Coggeshall Street Bridge located in the upper harbor. At the Coggeshall Street Bridge, the
average ebb tide velocity is 0.7 knots; however, currents as fast as 3.5 knots have been recorded
here during ebb tide (USACE (1990) in MADEP, 2010a). In the New Bedford Harbor PCB
Flux Study conducted by Woods Hole Group (WHG) on behalf of the USACE for EPA, NBH
11
-------
sediments and water were identified as a source of PCB contamination to the area outside of the
hurricane barrier (outer harbor area) (Woods Hole Group, 2010.)
Noise and Traffic - The NBH- South Terminal is located within the Designated Port Area for
the Port of New Bedford, which has been specifically reserved for water dependent industrial
uses by the Commonwealth of Massachusetts and interfaces with the Waterfront Industrial and
"Industrial B" zoning districts (MADEP, 2010a). The inner harbor contains several marinas, a
recreational fleet, historical attractions, commercial fishing fleets, and fish processing/cold
storage facilities. Land usage along the shore, is a mixture of residential, commercial and
industrial uses (MADEP, 2010a). Dredging activities in the harbor for both navigation and
remediation of the New Bedford Superfund site adds additional human disturbance to the harbor
area. The current level of human disturbance, noise and traffic undoubtedly deters the foraging
of shorebirds to some extent.
IV. Roseate Tern Biology
A. Seasonal Distribution
In North America, the roseate tern breeds in two discrete populations; from Nova Scotia south to
New York (the Northeast Population) and in the Caribbean. Roseate terns arrive in
Massachusetts from late-April to mid-May to nest at just a handful of coastal locations.
Massachusetts birds depart from breeding colonies in late-July and August and concentrate in
"staging areas" around Cape Cod and the Islands, before departure for wintering grounds in
September. Most have departed staging areas and have begun migrating southward (principally
to South America) by mid- to late-September (MA NHESP, 2007).
B. Nesting
In Massachusetts, the roseate tern generally nests on sandy, gravelly, or rocky islands. Roseate
terns have very specialized habitat requirements; however, they are always found nesting in close
association with the common tern {Sterna hirundo). Roseate terns, being less aggressive than the
common tern, seem to rely on the common terns aggressive tendencies to protect their own nests.
Roseate terns usually place their nests under cover in dense vegetation, such as seaside
goldenrod (Solidago sempervirens) or beach pea (Lathyrus maritima), or under boulders or other
structures (e.g. nestboxes or wooden boards). Roseate terns appear to enjoy the security of
crevices and structural backing to their nesting sites. Common terns tend to nest in open sandy
areas with limited vegetation (Nisbet, 2002 in USACE, '2006).
In Buzzards Bay, terns start arriving at the nesting islands in late-April. Common terns usually
begin laying eggs the second week of May and roseate terns begin a few days later. Peak egg-
laying takes place from mid-May to mid-June, but eggs may be laid into mid-August. Incubation
lasts about three weeks, and after three to four weeks chicks can fly. Fledglings of both species
are dependent on their parents for at least several weeks post-fledging. Most terns begin moving
in July to pre-migration staging areas in the region (especially on Cape Cod) where they feed and
roost before starting migration a few weeks later. By early September, essentially all terns have
departed the nesting islands for the pre-migration staging areas. By mid-September, most have
12
-------
departed the staging areas for the wintering grounds (principally in South America), but some
linger at staging areas until mid-October (USACE, 2006).
The islands in Buzzards Bay and Nantucket Sound have been among the most important nesting
sites for roseate terns in the northeast. In the most recent inventory of terns prepared by
Massachusetts Division of Fisheries and Wildlife (MA DF&W the following results are
presented:
Roseate terns were confirmed to have nested at six sites in 2011. The largest colony was
at Bird I., Marion (937 vs. 735 in 2010); productivity was very good, 1.23 fledglings/nest.
Ram I., Mattapoisett was the second largest site at 385 pairs (vs. 584 in 2010);
productivity also was very good, 1.10 fledglings/nest. Repeated Peregrine Falcon (Falco
peregrinus) disturbance in May and early June was probably responsible for roseate terns
shifting from Ram to Bird. Other sites included Penikese I., Gosnold (34 Vs. 37 in 2010;
fair to good productivity), S. Monomoy I., Chatham (7 vs. 8 in 2010; 0.29
fledglings/pair), Monomoy I., Chatham (3 vs. lin 2010; 1.67 fledglings/pair), and
Plymouth Beach, Plymouth (>1 vs. 2 in 2010). Roseate terns were observed carrying fish
into the Plymouth colony in 2007, 2008, and 2010 and presumably nested in those years;
however, in 2011, a nest and young were confirmed. Roseate terns preparing to nest at
Norton Beach, Edgartown before the peak census window were disrupted by a Peregrine
Falcon and did not nest (0 vs. 26 in 2010). At Gray's Beach, Yarmouth, three roseate
terns (two adults and one sub-adult) consistently were observed flying over the colony
together over the course of the breeding season, but they did not land and there was there
was no indication of nesting. At a sandbar off Muskeget I., Nantucket in July, a roseate
tern pair was courting, scraping, and bringing nesting material to a scrape, but nesting
was not confirmed. (MDF&W, 2012) '
Bird Island and Ram Island (located approximately 17 km and 9.2 km "as the crow flies,"
respectively) are the two closest colonies to the NBH- South Terminal project area that are
within the typical foraging range (25 km) of the roseate tern.
Bird Island is a 3-acre island located in Buzzards Bay in Marion, MA, southwest of Butler's
Point at the entrance of Outer Sippican Harbor. Bird Island is subject .to wave action and
submergence during storm events, which has eroded the island over time. Sand and gravel areas
have given way to the establishment of some areas of salt marsh and two salt pannes. The island
is also the location of a historic light house. In 2011, Bird Island supported 937 nesting pairs of
roseate terns (MDF&W, 2012)..
Ram Island, a 2.5-acre island located 0.8 km southeast of Mattapoisett Neck, Mattapoisett, MA,
is composed of eroded glacial till, surrounded by scattered boulders. There is a tidal pond in the
center with a small area of low-grade salt marsh, and a storm beach of gravel and shell.
Common and roseate terns have been known to breed on the island since the 1930s (Mass
Audubon 2010) but the island was eventually overrun with gulls. Suitable conditions for nesting
roseate terns were restored in the 1990's by the MDF&W Natural Heritage and Endangered
Species Program (MA NHESP; and as of 2011, the island supported 385 nesting pairs of roseate
terns (MDF&W, 2012).
13
-------
In Massachusetts in 2011, the roseate tern population decreased slightly (2.4%) to 1,359 pairs
(vs. 1,393 pairs in 2010). The U.S. (or "Northeast") population as a whole increased slightly to
3,042 pairs (vs. 2,970 in 2010). The population declined steeply after 2000, but essentially has
been stationary since 2008 — this is close to the 1987 level, when it was first listed as Endangered
in the U.S. Since 1985, roseate tern numbers in the Commonwealth e have fluctuated between
1,339 and 2,124 pairs, averaging 1,587 pairs during this time period. (MDF&W, 2012)
C. Staging
Roseate tern staging areas in the New Bedford Harbor general vicinity (within 50 miles) include
Monomoy Island and Nauset Beach on Cape Cod, Nantucket Island, and Napatree Point on the
Connecticut/Rhode Island border (USFWS, 1998). There were twenty areas of open beach or
sand flat sites around Cape Cod identified where roseate terns (and common terns) staged
between 24 July and 22 September. Birds from eight different breeding sites were identified
among staging.flocks (Trull et al., 1999, in USFWS, 2010).
D. Foraging
Roseate terns feed almost exclusively on small and/or juvenile fish, occasionally including
crustaceans and insects in its diet. Its feeding habits are fairly specialized, consuming primarily
sand lance. Heinemann (1992) found that the roseate terns from Bird Island foraged primarily
(95%) on sand lance prior to mid-June (71% over the season). After mid-June, the breadth of the
diet increased to include herring, anchovy, silversides, mackerel and bluefish. Roseate terns
capture food mainly by plunge-diving (diving from heights of 1-12 meters (m) and often
submerging to > 50 centimeters (cm), but.also by surface-dipping and contact-dipping (MA
NHESP, 2007).
Roseate terns feed in bays, tidal inlets, or between islands in Massachusetts. They are known to
fly up to 25 km to feed over reliable feeding areas (Nisbet, 1991, Duffy, 1986, Safina, 1990,
Heinemann, 1992 in USFWS, 1998). Rock et al., 2007 found an average foraging distance of 7
km from a colony in Country Island, Nova Scotia, Canada. Roseate terns forage in highly
specialized situations such as shallow sand bars (less than 3 meters (m) deep) or rip tides where
prey fish are swept close to the surface. They will also feed in shallow water (less than 2 m deep)
where prey fish cannot stay below the plunge depth. Roseate terns will also take advantage of
school feeding of predatory fish or feeding close to double-crested cormorants when smaller fish
are driven to the surface. Some roseate terns specialize in steailing fish from other terns
Heinemann (1992). Rock et al. (2007) found in a telemetry study in Canada that 90% of
foraging was in water less than 5 m deep.
In 1990 and 1991, a study was conducted to assess the foraging locations and ecology of roseate
terns breeding on Bird Island in Massachusetts (Heinemann, 1992). Eight survey transects were
established in the Buzzards Bay and Vineyard Sound area and roseate tern observation surveys
were conducted during the months of June and July in 1990 and 1991. Five of the eight transects
went into the New Bedford outer harbor, of which two of these transects went into the inner
harbor (north of the Hurricane Barrier). Of the five transects that included the New Bedford
outer harbor area, the most southern foraging location in three transects was the West Island area
-------
and, in one transect, a small number of terns (1 to 9 birds) were observed foraging on the west
side of Sconticut Neck (outer New Bedford Harbor) (for the location of these areas see Figure 3
- Roseate Tern Foraging Habitat Within 25 km). No roseate terns were identified foraging in the
inner harbor area.
The MassDEP (conducted an expanded avian assessment for potential usage in the vicinity of the
NBH - South Terminal project for avian nesting and foraging,by reviewing existing data. The
assessment included a review of a bird survey conducted by the USEPA in 1987, bird
observations within Bristol County made via the Massachusetts Audubon Society's online
"eBird" system, the species prioritization list associated with Bird Conservation Region 30
(Southern New England Data), information from the Paskamansett Bird Club's 2007 Christmas
Bird Count, identifications made by an individual within New Bedford from 2005-2008, and
observations made for the Mass Audubon Society's Breeding Bird Atlas 2. The conclusion of
this assessment was that "These, surveys indicate that the Common and Roseate Terns likely do
not travel inside of the New Bedford Hurricane Barrier, and if they do, they do so infrequently
and have not been noted within the surveys in question." (MassDEP, .2010b).
Of the roseate tern nesting colonies in Massachusetts, only Bird Island and Ram Island are within
the foraging range for roseaJe terns (approximately 25 km) to the New Bedford Harbor. Bird
Island is located approximately 17 km from New Bedford Harbor but terns would most likely
follow a water route during foraging which extends the flying distance from Bird Island to New
Bedford Harbor to the outer-most foraging range. Heinemann (1992) stated that "Roseate Terns
from the Bird Island do not forage in the immediate vicinity of New Bedford Harbor, although
they can be found in significant numbers near West Island and Ram Island 6-9 km away."
Therefore, it is unlikely that Bird Island roseate terns forage in the New Bedford Harbor area
during nesting season. However, Ram Island is located 9.2 km from New Bedford Harbor. The
Heinemann (1992) tern foraging study was conducted prior to the restoration of Ram Island and
as such, may not account for Ram Island roseate terns foraging in the New Bedford Harbor area
during nesting season since the mid-1990's.
Little information is known about the movements or ecology of the terns during migration to and
from wintering areas or moving from nesting and staging areas. Theoretically, they may use New
Bedford Harbor for foraging during this time. Potential risks to migrating roseate terns related to
NBH - South Terminal project could include effects from increased shipping traffic, noise, oil
spills, etc. The potential impact to foraging roseate terns from Ram Island and migrating roseate
terns is discussed in the Section V., Effects Analysis.
15
-------
Legend:
Rox«jrt« T*m Foraging Sit
H Ram ttUnd
26 Wlom«{«r Rang*
B.itltym<*iy (Metas)
mi 30--21m
| -20- • tSm
-10rr>
I J.1Q.-5m
[" ~I-S- 0m
I
:iww
FIGURE 1: ROSEATE TERN FORAGING HABITAT J
WITHIN 2( KM RANGE JL
RAM ISLAND. BUZZARD S BAY. MA
*Sourc«: Hwr*mjnn, Otnnis
1W2. Fora^ng Ecotogy of
Ftosex* T#r\t Bnttdfng on
v «w • tuv f 27^S99 K*w 6»rd feland. Buzzard's 0»y. MA
2004 Aenal Inajery torn AroGIS Map Scr«c« OCSWOS 1084
MUlri*. 0O»*>
16
-------
V. Effects Analysis
A. Direct Loss of Salt Marsh, Intertidal and Subtidal Habitat
Permanent direct adverse impacts to aquatic resources from constructing the NBH-South
Terminal project would include the filling of 1.94 acres of intertidal area; 4.06 acres of shallow,
near-shore sub-tidal area; 0.18 acres of salt marsh, and 0.67 acres of shallow sub-tidal area that
will be dredged and partially filled with piles and a concrete blanket. This 0.67 acre area will
also be shaded with a concrete platform. These aquatic resource areas were found to support
abundant benthic and shellfish resources and are used as fisheries spawning and nursery habitats.
Permanent impacts from dredging associated with the proposed project includes 7.02 acres of
near-shore, sub-tidal land which will be dredged in feet from between -1 and -6 Mean Lower
Low Water (MLLW) to between -30 and -32 MLLW2; and 8.46 acres of near-shore, sub-tidal
land that will be dredged in feet from-1 and-6 MLLW to-14 MLLW.
Temporary impacts associated with the proposed project include 8.76 acres of near-shore sub-
tidal area that will be dredged from between -1 and -6 MLLW to -45 MLLW to create a
Confined Aquatic Disposal cell which will later be filled and capped; 6.17 acres of near-shore,
sub-tidal areas that will be dredged from -4 to -6 MLLW to between -6 and -7 MLLW (Gifford
Street Channel Realignment and Mooring Mitigation Areas); 8.29 acres of sub-tidal area will be
dredged from -20 to -20 MLLW to -30 MLLW (South Terminal Channel)3; and 15 acres of sub-
tidal area that will be dredged from -20 to -30 MLLW for -30 MLLW (Maintenance Dredging
of Federal Navigation Project).
A total of approximately 22.33 acres of intertidal and subtidal resource areas would be
permanently altered due to filling and dredging during the construction process. The direct
effect to marine resources caused by filling and dredging intertidal and subtidal areas include
permanent loss of spawning and foraging habitat, reduction in the availability of food supply,
and loss of refuge areas from predators.
A total of 38.22 acres of near shore subtidal and subtidal would be temporarily impacted during
dredging. Temporary impacts would include elevated turbidity, the resuspension and
mobilization of contaminants during the construction process, and human disturbance (vessel
traffic, noise, etc.) associated with the post-construction operation of the terminal (MassDEP
2012). Temporary impacts from construction noise will potentially occur as the project involves
the insertion of piles into substrate to provide a foundation for the terminal bulkhead and may
involve blasting to remove rock in the area of the terminal and in shipping channels.
2 This figure represents 3.68 acres that will definitely be dredged, and an additional 3.34 acres that are associated
with a potential extension of the deep-draft quayside dredging area to the south and potential additional widening of
the deep-draft channel. See MassDEP 2012a at pp. 2-4 and 9.
This figure represents 7.01 acres that will definitely be dredged, and an additional 1.28 acres that are associated
with a potential extension of the deep-draft quayside dredging area to the north. See MassDEP 2012a at pp. 3. and
10.
-------
B. Foraging by Nesting and/or Migrating Roseate Terns
j
Ram Island is located 9.2 km from New Bedford Harbor which is within the 25 km foraging
distance for roseate terns and as such there is some potential for Ram Island roseate terns to.
forage in the New Bedford Harbor area during nesting season. In 2009, Ram Island supported
645 roseate tern pairs; 20.6% of the northeast population in 2009. Of that number, only a portion
would be expected to forage at any one time in the direction of New Bedford Harbor. In
addition, roseate terns forage in highly specialized situations such as shallow sand bars or rip
tides where prey fish are swept close to the surface. New Bedford Harbor does not exhibit these
habitat characteristics. The southernmost foraging areas, located around West Island and the west
side of Sconticut Neck (outer New Bedford Harbor), could also be used by Ram Island roseate
terns, and Heinemann (1992) identified many other better suited foraging sites in Buzzards Bay
that are also within the range of foraging Ram Island terns. No roseate terns were identified
foraging in the inner harbor area by Heinemann (1992), though, as mentioned above, this survey
predated the restoration of suitable nesting conditions on Ram Island.
In addition, the MassDEP conducted an assessment for potential avian usage of the NBH - South
Terminal area by reviewing a wide variety of existing avian survey data. The conclusion of this
assessment was that "These surveys indicate that the Common and Roseate Terns likely do not
travel inside of the New Bedford Hurricane Barrier, and if they do, they do so infrequently and
have not been noted within the surveys in question." (MassDEP 2012).
While terns migrating to and from wintering, nesting and staging areas also have the potential to
forage in New Bedford Harbor, it is not considered to provide high quality foraging and does not
provide nesting habitat for the roseate tern. Trull et al. (1999) in USFWS, 2010, suggested that
at least half of the entire northeast population of roseate terns was concentrated around Cape Cod
at the time of staging. These staging areas are located 40 miles or more from New Bedford
Harbor, which is beyond the foraging range for roseate terns. Therefore, it would be expected,
based upon existing survey data, that only occasional or transient birds would attempt to use
New Bedford Harbor for foraging during migration and staging based upon existing survey data.
There are areas of roseate tern foraging habitat identified around West Island and the east side of
Sconticut Neck (Heinmann, 1992), which are within the foraging range of Ram Island roseate
terns and would likely be preferred over foraging in the inner NBH project area because they are
closer to Ram Island. In addition, because roseate terns forage in waters up to approximately 5
meters in depth and as such, there is a large amount of potential foraging habitat in areas external
to the New Bedford Harbor area (see Figure 3 - Roseate Tern Foraging Habitat within 25 km).
In addition, the significant degree of existing human related disturbance in the harbor is a
deterrent for foraging birds (as discussed below). Therefore, it would be expected that only
occasional transient roseate terns, if any, would use the New Bedford inner harbor for foraging
during nesting, migration or staging.
C. Effects on Prey Species in Shallow Water Habitat
Project related impacts on the prey species preferred by the roseate tern are dependent on the
mobility, life history, food preference and spawning behavior of the species. Non-mobile or
18
-------
slow-moving benthic organisms, including slow moving invertebrates (food for prey species)
may be buried or trapped by filling during construction of the NBH-South Terminal. More
mobile species of fish would likely avoid the disturbance areas. Spawning habitat for the pelagic
species such as mackerel and bluefish, which spawn in at sea, or for the anadromous herring
which spawns in fresh water (in the Acushnet River), would be least likely to be directly affected
by the filling of intertidal and subtidal habitat. Species such as the sand lance, bay anchovy
which spawns in estuarine waters and bluefish, herring and mackerel, the juveniles of which,
may utilize the NBH-South Terminal intertidal area for foraging could potentially be impacted
by the project. However, these species were not well represented in the Normandeau Associates
near shore sampling or trawl sampling and as such do not appear to utilize the area to a great
extent.
The Atlantic silverside is a resident of the intertidal area, which makes it most susceptible to
impacts associated with the direct filling of the 1.94 acres of intertidal resources, 0.67 acres of
shallow sub-tidal area that will be dredged and partially filled with piles and a concrete blanket
and 4.06 acres of shallow near-shore sub-tidal habitat. The Atlantic silverside spawns in"
intertidal. areas, comprised 44% of the three near shore seine sampling 'stations, and represents
approximately 10% of the roseate tern diet (Heinemann, 1992). However, the Atlantic silverside
is a wide spread species, occurring from Nova Scotia to Florida and is abundant in every major
estuary (USFWS, 1983).
Overall, the intertidal resources that will be affected by the proposed project represent a small
portion of the total potential spawning, nursery and foraging habitat in New Bedford Harbor.
Furthermore, the roseate tern prefers primarily sand lance and a range of other prey species
which support its dietary requirements during the spring, summer, and fall in the northeast. It is
unlikely that the potential impact of the NBH-South Terminal project on the Atlantic silverside
population or other foraging juvenile prey species will affect the occasional or transient roseate
terns that may use the New Bedford Harbor for foraging. Although certain areas will be
eliminated as a potential foraging site for roseate terns, as explained above, 1) only occasional or
transient birds would be expected to use the inner harbor area for foraging, 2) there are several
more preferred feeding sites in the Buzzards Bay area (as shown on Figure 3 - Roseate Tern
Foraging Habitat Within 25 km) that are anticipated to be the focus of foraging roseate terns, 3)
the preferred prey base is largely absent from the New Bedford area and 4.) the amount of
potential preferred forage fish spawning habitat that will be eliminated will be negligible.
D. Dredging Impacts to Prey Fish in Sub-tidal Environment
Dredging effects on roseate tern foraging may include increased exposure of prey fish to elevated
turbidity and higher levels of contaminants in the water column from the dredging processes.
Though direct mortality to prey fish would not be expected, sub-lethal impacts could occur, such
as decreased reproduction or bioaccumulation of contaminants in benthic organisms that the prey
fish feed upon. Dredging will impact approximately 38.22 acres of subtidal area in order to
create an adjacent deep water channel and mooring area.
The direct effects of dredging on fisheries include destruction of eggs or spawning areas,
physical impairment (e.g., turbidity-induced clogged gills resulting in suffocation, or abrasion of
19
-------
sensitive epithelial tissue), behavior impairment (changes in migration patterns) or physiological
impairment due to acute or chronic toxicity from exposure to contaminants within the dredge
sediments. Some physical impairment of resident fish species within the harbor would be
expected. Pelagic fish are more likely to avoid the turbidity plumes and leave that portion of the
harbor occupied by the sediment plume. Anadromous fish could be temporarily impacted by any
sediment plume that was present as they pass through it to freshwater spawning areas.
To better understand the effects of dredging in the New Bedford Harbor Superfimd site, the EPA
Atlantic Ecology Division in Narragansett, RI, conducted extensive research with regard to water
column contaminant accumulation in shellfish tissues. Blue mussels (Mytilus edulis) were
selected for use in the study because they have been shown to accumulate PCBs in their tissues
proportional to the concentration of PCBs in the water that they filter. Mussels were deployed at
three sites; the Coggeshall St. Bridge in the upper harbor, the NBH Hurricane Barrier in the
lower harbor, and approximately 1000 yards east of West Island. In order to quantify any
dredging and operational related impacts, mussels were deployed at three different times; before
dredging (Pre Operational), during dredging of PCB contaminated areas (Hot Spot Remediation)
and after dredging (Post Operational). After the mussels were deployed for a period of 28 days,
they were retrieved from the field and analyzed for PCB concentrations in their tissues (EPA,
2009, unpublished. B.J. Bergen and W.G. Nelson, U.S. EPA, Atlantic Ecology Division,
Narragansett, RI).
Results of the study indicate that, over a period of twelve years (1987 to 1999), PCB
bioaccumulation levels were relatively constant, which leads to the conclusion that operational
dredging in the NBH had minimal impact on PCB bioaccumulation in mussels. The data showed
that PCB concentrations do not increase during dredging periods in blue mussels and as such, it
was reasonable to assume that dredging does not lead to increases in PCB concentrations in other
biota in the harbor (EPA, unpublished. B.J. Bergen and W.G. Nelson, U.S. EPA, Atlantic
Ecology Division, Narragansett, RI).
Given that only occasional or transient roseate terns would be expected to use the NBH during
breeding and migration, we believe that roseate terns are unlikely to be adversely affected as a
result of this project. Should a few birds choose to forage in the project area during dredging
operations, the risks of exposure to PCBs resulting from the effect of dredging on their prey
would be extremely low. This conclusion is supported by long term trends which show that total
PCBs have declined 12% since 1972 in tern breeding colonies in Buzzards Bay, MA (EPA,
2008). This decline in PCB levels in tern eggs, though not specifically linked to the remedial
activities at the NBH Superfund site, coincides with declines in sediment PCB concentrations
from those activities.
E. Noise and Traffic
New Bedford Harbor is a highly industrialized area with noise levels related to the operation and
repair of over 500 commercial fishing vessels, operation of dozens of fish processing plants,
multiple cargo ship receiving facilities, multiple ship-yards, ferry boats, cruise ships, and repair
yards. This activity produces a significant quantity of noise particularly in the spring, summer,
and early fall, during which the activity within the harbor is at its peak. Although roseate tern
.20
-------
foraging would also be at its peak during this time (MassDEP, 2010b), the elevated activity
within the harbor area is likely to deter shorebirds from foraging there.
The construction and operation of the NBH-South Terminal will involve increased truck traffic
and noise impacts in the project vicinity. It is estimated that operations will be conducted on an
as-needed basis, and could occur 24 hours per day, 365 days per year (shipping activities and/or
offloading from fishing vessels). The NBH-South Terminal is located within the Designated
Port Area for the Port of New Bedford, which has been specifically reserved for water dependent
industrial uses by the Commonwealth of Massachusetts and is within the Waterfront Industrial
and "Industrial B" zoning districts (MassDEP, 2010a). As discussed above, the current level of
human activity in the harbor is likely to be a deterrent to shorebirds foraging in the area.
Increased noise and traffic from construction and operational activities at the terminal may
further deter roseate terns from using the area. However, this is not likely to adversely affect the
roseate tern since even apart from the NBH South Terminal Project, the use of the New Bedford
inner harbor by roseate terns is expected to be limited to occasional and transient individuals and
there are several and more preferred areas terns may use for foraging in Buzzards Bay.
F. Oil Spills and Shipping Traffic
Increased vessel traffic and/or the potential for uncontrolled releases of oil to surrounding waters
as a result of the operation and maintenance of the NBH - South Terminal project present
additional potential vulnerabilities to terns foraging in Buzzard's Bay. An oil spill in 2003, the
Bouchard No. 120 (B-120) oil spill in Buzzards Bay, Massachusetts, resulted in moderate oiling
of Ram Island and slight oiling of Bird and Penikese Islands. During this event, roseate terns
were hazed to discourage them from settling into nesting habitat until it was cleaned of oil. As a
result, many tern pairs moved to other islands, and/or delayed nesting, which resulted in reduced
productivity at Ram Island by an estimated 350 chicks, (USFWS, 2008).
To determine the threat to avian wildlife, the Massachusetts DEP relied upon an oil spill threat
analysis of vessel traffic prepared by Nuka Research & Planning Group LLC (MADEP, 2009
cited in MADEP, 2012.) Nuka Research & Planning Group LLC considered the existing oil spill
threat for New Bedford Harbor from vessel activity within shipping lanes; from increased vessel
traffic due to the construction of the NBH-South Terminal project; and from use of the facility as
a maritime terminal after the initial offshore renewable energy project is completed. The
analysis determined the relative increase in oil spill threat after the first year of operation of the
new terminal for Regional Transit Vessels is 0.77% for the South Coastal/New Bedford area,
0.75% for the Dartmouth/Fairhaven/Marion/ Mattapoisett/Wareham/Westport area, and 0.75%
for the Cape and the Islands. Details of this analysis may be found in the document entitled the
State Enhanced Remedy in New Bedford, South Terminal and dated August 25,2010
(MASSDEP 2012). In addition, Spendelow et al. (2008) (in USFWS 2008) examined survival
rates of roseate terns over a 19-year period and did not detect a lower survival of the birds
nesting at the colonies near the Bouchard No. 120 (B-120) oil spill compared to those nesting at
other study sites in New York and Connecticut. Therefore, it is unlikely that roseate terns will be
adversely affected by the small increased threat of oil spills or increased traffic as a result of the
NBH-South Terminal project.
21
-------
G. Ecological Benefits of the Project
In its current state, New Bedford Harbor presents a limited risk to foraging transient roseate terns
within the harbor and from the export to adjacent areas of PCB contaminated forage fish (e.g.,
sand lance, alewife, blue fish, etc.). The dredging associated with this project will reduce the
levels and amounts of PCBs and other contaminants in the sediments within the harbor areas that
are to be dredged. The material will be disposed/confined in the CDFs or CADs. This will
reduce future potential for resident and transient fish species and other organisms to be exposed
to these contaminants. The potential benefits may be illustrated in the long-term trends that
show that total PCBs have declined 12% in tern breeding colonies in Buzzards Bay, MA since
1972 (EPA, 2008).
VI. Determination of Effects on the Roseate Tern
From the above analysis, EPA concludes that the proposed NBH-South Terminal project is
unlikely to adversely affect the roseate tern. The project site contains neither nesting habitat nor
migratory staging area habitat for roseate terns. Therefore, the project would have no direct
effect on such habitat. In addition, the project is sufficiently distant from available roseate tern
nesting habitat and migratory staging area habitat, that it will have no indirect effect on these
habitats, either.
Furthermore, the project would be unlikely to have any effect on roseate terns foraging during
nesting or migration because roseate terns are not expected to use the project area for foraging to
any significant degree. Although the distance from the project location to the Ram Island and
Bird Island roseate tern breeding colonies is within the estimated foraging range of roseate terns,
there are foraging sites closer to these colonies that have site characteristics preferred by foraging
roseate terns. Based on existing literature and known feeding habitats, roseate terns use
specialized sites for feeding where currents or rip tides bring prey species to the surface, and
these conditions do not exist in the project area but do exist at other locations in or around
Buzzards Bay. Moreover, already existing noise and vessel traffic in the harbor are likely to
deter any potential foraging in the harbor by roseate terns.
In light of the above considerations, there is, at most, only a small likelihood that a transient
roseate tern might seek to use the project area for foraging during nesting and migration. If
such a transient roseate tern did seek to forage in the project area, it is highly unlikely that it
would encounter any contamination, or that its prey sources would have been reduced in any
meaningful way, as a result of the project.
Finally, as mentioned above, current noise and vessel traffic in the harbor are likely deterrents to
the use of the harbor by roseate terns for foraging. As such, additional noise from the project is
not expected to cause an adverse effect. However, in the unlikely eVent that roseate terns enter
the inner harbor to forage, noise and vessel traffic would likely serve to drive the birds away
from the South Terminal site. Therefore, injury as a result of foraging during dredging is highly
unlikely. In addition, the increased threat over existing conditions to migrating roseate terns due
to increased vessel traffic and potential oil spills would be minimal.
22
-------
VII. Conclusion
EPA concludes that, though the proposed NBH-South Terminal project may affect the roseate
tern, the project is unlikely to adversely affect the species.
23
-------
VIII. References/ Literature Cited
Auster, P, J., and L. L. Stewart. 1986. Species profiles: life histories and environmental
requirements of coastal fishes and invertebrates (NorthAtlantic) Sand Lance. U.S. Fish and
Wildlife Service Biological Rep. 82 (11.66). U.S. Army Corps of Engineers, TR EL-82-4. 11 pp.
Bigelow, Henry B. and William C. Schroeder. 2002. Fishes of the Gulf of Maine Online
Version. Fishery Bulletin 74. Fishery Bulletin of the Fish and Wildlife Service, Volume 53
(Contribution No. 592, Wood Hole Oceanographic Institution)
Alewife http://www.gma.org/fogm/Pomolobus pseudoharengus.htm
Blue Back Herring http://www.gma.org/fogm/PomOlobus aestivalis.htm
Mackerel http://www.gma.org/fogm/Scomber scombrus.htm
Darnell, R.M. 1961. Tropic spectrum of an estuarine community, based on studies of Lake
Pontchartrain, Louisiana. Ecology 42(3):553-568.
Darnell, R.M. 1958. Food habits of fishes and larger invertebrates of Lake Pontchartrain,
Louisiana, an estuarine community. Publ. Inst. Mar. Sci. Univ. Tex. 5:353-416.
Derickson, W.K., and K.S. Price, Jr. 1973. The fishes of the shore zone of Rehoboth and Indian
River Bays, Delaware. Trans. Am. Fish. Soc.l02(3):552-562.
Dovel, W.L. 1981. Ichthyoplankton of the lower Hudson Estuary, New York. N.Y. Fish Game
J.28(l):21-39.
Duffy, D.C. 1986. Foraging at patches - interactions between common and roseate terns. Ornis
Scandinavica 17:47-52
Environmental Protection Agency (EPA), 2012. Memorandum to file regarding phone
conversation, June 27, 2012 with USFWS.
Environmental Protection Agency (EPA). 2010a. Waste Site Cleanup & Reuse in New England
- New Bedford Harbor http://www.epa.gov/ne/nbh/history.html
Environmental Protection Agency (EPA). 2010b. Update on Shell Fish Testing in Bedford
Harbor, http://www.epa.gov/region01/nbh/pdfs/299760.pdf
Environmental Protection Agency (EPA). 2009, Unpublished. Monitoring PCB Concentrations
in the New Bedford Harbor Using Deployed Blue Mussels (Mytilus edulis). B.J. Bergen and
W.G. Nelson , U.S. EPA, Atlantic Ecology Division, Narragansett, RI.
Environmental Protection Agency (EPA). 2009. Contaminated Monitoring Report for Seafood
Harvested in 2007 from the New Bedford Harbor Superfund Site by Massachusetts Department
of Environmental Protection and Massachusetts Division of Marine Fisheries September 2009
http://www.epa.gov/ne/nbh/pdfs/299739.pdf
24
-------
Environmental Protection Agency (EPA). 2008. Poly chlorinated Biphenyls (PCBs) and
Polybrominated Diphenyl Ethers (PBDES) in Current and Historical Samples of Avian Eggs
From Nesting Sites in buzzards Bay, MA., USA. Prepared by Saro Jayaraman1
(jayaraman.saro@epa.gov), M. CantwellvC. S. Mostello2,1.C.T. Nisbet3, and D.E.Nacci1:
(1) U.S.EPA, Office of Research and Development, Narragansett, RI; (2) Massachusetts Division
of Fisheries &Wildlife Westborough, MA; (3) I.C.T. Nisbet and Company, North Falmouth,
MA.
Friedland, K.D., G.C. Garman, A.J. Bejda, A.L. Studholme, and B. Olla. 1988. Interannual
variation in diet and condition in juvenile bluefish during estuarine residency. Trans. Am. Fish.
Soc. 117(5): 474-479.
Gochfeld, Michael, Joanna Burger and Ian C. Nisbet. 1998. Roseate Tern (Sterna dougallii), The
Birds of North America Online (A. Poole, Ed.). Ithaca: Cornell Lab of Ornithology; Retrieved
from the Birds of North America Online: http://bna.birds.cornell.edu/bna/species/370
Heinemann, Dennis. 1992. Foraging Ecology of Roseate Terns Breeding on Bird Island,
Buzzards Bay, Massachusetts. Uripubl. Report. U.S. Fish and Wildlife Service, Newton Corner,
MA. 54 p. ' .
Hildebrand, S.F., and L.E. Cable., 1930. Development and life history of fourteen teleostean
fishes at Beaufort, N.C. U.S. Bur. Fish. Bull. 46:383-488.
Mass Audubon. 2010. Massachusetts Important Bird Areas.
http://www.massaudubon.org/Birds and Birding/IBAs/print summary.php?getsite-78
Massachusetts Department of Environmental Protection (MassDEP). 2010a. State Enhanced
Remedy in New Bedford, South Terminal. August 25, 2010. 223 pp.
Massachusetts Department of Environmental Protection (MassDEP). 2010b. State Enhanced
Remedy in New Bedford, South Terminal - Expanded Avian Assessment. September 21, 2010.
50 pp.
Massachusetts Department of Environmental Protection (MassDEP). 2012a. State Enhanced
Remedy in New Bedford, South Terminal. January 18, 2012. 351 pp.
Massachusetts Department of Environmental Protection (MassDEP). 2012b. State Enhanced
Remedy in New Bedford, South Teirninal Response to USEPA Comments on the January 18,
2012 Submission by the Commonwealth of Massachusetts for the New Bedford Marine
Commerce Terminal (NBCMT) (Submitted June 18, 2012
Massachusetts Department of Environmental Protection (MassDEP). 2009. Evaluation of
Marine Oil Spill Threat to Massachusetts Coastal Communities. Prepared by Nuka Research &
Planning Group LLC for the Massachusetts Department of Environmental Protection. December
2009
25
-------
Massachusetts Natural Heritage and Endangered Species Program (MA NHESP). 2007.
Roseate Tern {Sterna dougallii) fact sheet. Prepared by C. S. Mostello.
Massachusetts Division of Fisheries and Wildlife, Natural Heritage and Endangered Species
Program, 2012, Inventory of Terns, Laughing Gulls and Black Skimmers nesting in
Massachusetts. Prepared by C. S. Mostello.
Morton, T. 1989. Species profiles: life histories and environmental requirements of coastal fishes
and invertebrates.(Mid-Atlantic) —bay anchovy. U.S. Fish Wildl. Serv. Biol. Rep. 82(11.97). 13
pp.
National Oceanic and Atmospheric Administration (NOAA) 2006. Technical Memorandum
NMFS-NE-198 National Essential Fish Habitat Source Document: Bluefish, Pomatomus
saltatrix, Life History and Habitat Characteristics. 2nd Ed. By Gary R. Shepherd and David B.
Packer. June 2006
National Oceanic and Atmospheric Administration (NOAA), 2010, Gerry E. Studds Stellwagen
Bank National Marine Sanctuary Site Characterization Report (1995), Sand Lance,
http://stellwagen.noaa.gOv/about/sitereport/fish.html#sandlance
Nisbet, I. C. T. 2002. Common Tern {Sterna hirundo). The Birds of North America, No. 618 (A.
Poole and F. Gill, eds.). Birds of North America, Inc., Philadelphia, PA.
Nisbet, I. C. T. 1981. Biological characteristics of the Sterna dougallii. Unpubl. Report. U.S.
Fish and Wildlife Service, Newton Corner, MA. Viii and 112 pp.
Nisbet, I. C. T. 1980. Status and trends of the roseate tern Sterna dougallii in North America and
the Caribbean. Unpubl. Report, U.S. Fish and Wildlife Service, Newton Corner, MA, 131 pp.
Nuka Research & Planning Group LLC ,2009, Evaluation of Marine Oil Spill Threat to
Massachusetts Coastal Communities, (also in Mass DEP,2012a,Appendix, 69.)
Odum, W.E. 1971. Pathways of energy flow in a south Florida estuary. Ph.D. Dissertation.
University of Miami. 162 pp.
Rock, Jennifer C., Marty L. Leonard and Andrew W. Boyne. 2007. Foraging Habitat and Chick
Diets of Roseate Tern, Sterna dougallii, Breeding on Country Island, Nova Scotia. Avian
Conservation and Ecology - Ecologie et Conservation des Oiseaux 2(1): 4. [online] URL:
http://www.ace-eco.org/vol2/iss 1 /art4/
Richards, S.W. 1976. Age, growth, and food of bluefish (Pomatomus saltatrix) from east central
Long Island Sound from July through November 1975. Trans. Am. Fish. SOC. 105(4):523-525.
Robins, C.R., G.C. Ray, J. Douglass, and R. Freund. 1986. A field guide to Atlantic coast marine
fishes. Houghton Mifflin Co., Boston, MA. 354 p.
26
-------
Safina, C. 1990. Foraging habitat partitioning in roseate and common terns. Auk 107:351-358.
Safina, C., J. Burger, M. Gochfeld and R. H. Wagner. 1988. Evidence for prey limitation of
common and roseate tern reproduction. Condor:90:852:859.
Spendelow, J.A., J.E. Hines, J.D. Nichols, I.C.T. Nisbet, G. Cormons, H. Hays, J. Hatch and C.
Mostello. 2008. Temporal variation in adult suryival rates of roseate terns during periods
of increasing and declining populations. In press. Waterbirds Soc. Bull.
University of Rhode Island (URI) 2010. Atlantic silverside (Menidia menidia)
http://omp.gso.uri.edii/ompweb/doee/biota/fish/aslvr.htm
Trull, P., S. Hecker, M.J. Watson and I.C.T. Nisbet. 1999. Staging of Roseate Terns (Sterna
pougallii) in the post-breeding period around Cape Cod, Massachusetts, USA. Atlantic
Seabirds 1:145-158.
U.S. Army Corps of Engineers (USACE), New England District. 2010. Final Report. 2009
Environmental Monitoring, Sampling and Analysis Reports. New Bedford Harbor Superfund
Site, New Bedford, MA. Prepared for the U.S. Army Corps of Engineers, New England District,
Concord, MA. Prepared by Woods Hole Group, East Falmouth, MA. July 2010.
U.S. Army Corps of Engineers (USACE), New England District. 2010. Unpublished. New
Bedford Harbor PCB Flux Study. Prepared for the U.S. Army Corps of Engineers, New England
District, Concord, MA. Prepared by Woods Hole Group, East Falmouth, MA. August 2010.
U.S. Army Corps of Engineers (USACE), New England District. 2006. Bird Island Restoration
Project Marion, Massachusetts. Detailed Project Report and Environmental Assessment, Section
206, Aquatic Ecosystem Restoration July 2006 Prepared by: New England District, Concord,
MA.'
U.S. Fish and Wildlife Service (USFWS). 2010. Caribbean Roseate Tern and North Atlantic
Roseate Tern (Sterna dougallii dougallii) 5-Year Review: Summary and Evaluation. U.S. Fish
and Wildlife Service, Southeast Region, Boqueron, Puerto Rico and Northeast Region, Concord,
New Hampshire.
U.S. Fish and Wildlife Service (USFWS). 2008. Final Biological Opinion, Cape Wind
Associates, LLC, Wind Energy Project, Nantucket Sound, Massachusetts. Formal Consultation
# 08-F-0323 Biological Opinion dated Nov 21, 2008.
U.S. Fish and Wildlife Service (USFWS). 1998. Roseate Tern Recovery Plan - Northeastern
Population. First Update. Hadley, MA. 75 pp.
U.S. Fish and Wildlife Service (USFWS). 1989. Species Profiles: Life Histories and
Environmental Requirements of Coastal Fishes and Invertebrates (Mid-Atlantic) Biological
Report. Bay Anchovy. 82(11.97). February 1989
27
-------
U.S. Fish and Wildlife Service (USFWS). 1987. Endangered and threatened wildlife and plants:
determination of endangered and threatened status of two population of the roseate tern. Federal
Register 52:42064-4271
U.S. Fish and Wildlife Service (USFWS). 1983. Species Profiles: Life Histories and
Environmental Requirements of Coastal Fishes and Invertebrates (Mid-Atlantic) Biological
Report. Atlantic Silversides. FWS/OBS-82/11.2. October 1983
US Fish & Wildlife Service (USFWS). 1986. Species Profile: Life Histories and Environmental
Requirements of Coastal Fishes and Invertebrates (North-Atlantic) Species Profile: Sand Lance
Biological Report #82,
Ward, P. Michael, Cindi Jablonski, Brad Semel and David Soucek. 2010. The biological
pathway and effect of PCBs on common terns in Lake Michigan. Ecotoxicology DOI
10.1007/s 10646-010-0536-6
Woods Hole Group, 2010. New Bedford Harbor PCB Flux Study prepared by WHG for the
U.S.Army Corps of Engineers Contract No. W912WJ-09-D-0001-0005-02, August 2010
IX. List of Contacts Made and Preparers
Judy Johnson, U.S. Army Corps of Engineers, New England District, Concord, MA
Jay MacKay, U.S. Army Corps of Engineers, New England District, Concord, MA
Matt Schweisberg, U.S. EPA New England, Boston, MA
William Nelson, U.S. EPA Atlantic Ecology Division, Narragansett, RI
Ralph Abele, U.S. EPA New England, Boston, MA
Jackie Leclair, U.S. EPA New England, Boston, MA
Susi von Oettingen, U.S. FWS, New England Field Office
28
-------
Figure 4 Hurricane Barrier Swale Mitigation - Existing Conditions
Figure 5 Hurricane Barrier Swale Mitigation Area Proposed Conditions
29
-------
30
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
Determination of Compliance
Floodplain Management Executive Order
Executive Order 12898
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
ENVIRONMENTAL PROTECTION AGENCY
REGION I
SOUTH TERMINAL PROJECT, NEW BEDFORD NPL SITE
DRAFT DETERMINATION OF COMPLIANCE WITH
CERCLA AND THE NATIONAL CONTINGENCY PLAN WITH RESPECT TO THE
REQUIREMENTS OF FLOODLAIN MANAGEMENT - EXECUTIVE ORDER 11988
PROJECT NAME: STATE ENHANCED REMEDY IN NEW BEDFORD SOUTH
TERMINAL, NEW BEDFORD, MASSACHUSETTS
PROJECT PROPONENT: Department of Environmental Protection, Commonwealth of
Massachusetts
NATIONAL PRIORITY LIST SITE: New Bedford Harbor
1.1 Project Description: The Commonwealth of Massachusetts proposes the development of
an approximately 28-acre marine terminal capable of supporting offshore renewable energy
development and other future uses. The facility would also provide a site for the disposal of
navigational dredged material associated with the State Enhanced Remedy ("SER") during
construction of the facility, and would support staging of additional dredged material for
beneficial reuse during operation of the facility. The facility would be located at the South
Terminal area in lower New Bedford Harbor. The proposal is described in detail in the
document entitled State Enhanced Remedy in New Bedford..South Terminal and its appendices,
dated January .18, 2012 and submitted by the Massachusetts Department of Environmental
Protection ("MassDEP") on behalf of the Commonwealth (hereafter referred to as MassDEP
2012). The MassDEP has updated and supplemented its January 18, 2012 submission with two
additional significant submissions (including attachments), dated June 18, 2012 (hereafter
MassDEP 2012a) and June 29, 2012 (hereafter MassDEP 2012b).
The project's components include:
1. Installation of a 1200 linear foot bulkhead in the Harbor, and placement of
approximately 142,000 cubic yards of dredged material (clean sand) behind the bulkhead,
resulting in the filling of intertidal habitat, shallow, near-shore sub-tidal habitat, and salt marsh.
This filled structure, referred to as a confined disposal facility ("CDF"), will be adjacent to
approximately 21.4 acres of upland that, together with the filled structure, will comprise the
terminal facility;
2. Dredging of shallow, near-shore, sub-tidal habitat and deeper sub-tidal habitat to
provide navigational access to and berthing at the terminal; to realign the Gifford Street Boat
Ramp Channel and create new mooring areas (to mitigate impacts to recreational users from the
South Terminal dredging); and to potentially conduct maintenance dredging in the Federal
Navigation Project channel and turning basin;
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
3. Dredging of shallow, near-shore, sub-tidal habitat to create a confined aquatic disposal
("CAD") cell, identified as "CAD Cell ,3," which will then be filled with contaminated dredged
material from the above-described navigational dredging.
4. Disposal of contaminated dredged material from the above-described navigational
dredging into CAD Cell 3 as well as into existing CAD cell 2 and capping of CAD cell 1 and the
"Borrow Pit"); and
5 '. Compensatory mitigation to address impacts to wetlands, intertidal habitat, subtidal
habitat, shellfish resources and floodplains.
1.2 Basic Project Purpose: EPA has determined that the basic project purpose is to develop a
marine terminal that will provide infrastructure capable of supporting the development of
offshore renewable energy facilities as well as other future uses (such as container shipping,
break-bulk cargo shipping, bulk cargo shipping, short-seas shipping). A secondary purpose is to
provide a site for the disposal of, and staging for beneficial reuse of, material dredged from
navigational dredging associated with the State Enhanced Remedy ("SER").
1.3 Water Dependency: The construction of a marine terminal is considered to be a water
dependent activity because it requires access to or proximity to waters of the U.S. in order to
meet the basic project purpose. The project's secondary purpose — disposal and storage of
dredged material — is not a water dependent activity.
2.0: Authority: This document constitutes EPA Region I's.(the "Region") draft determination
regarding Executive Order 11988 as applied to the State Enhanced Remedy and proposes to find
that the Executive Order 11988, as applied to remedial decisions under CERCLA, is satisfied
subject to the conditions included herein. This draft determination characterizes Executive Order
11988 as a condition that is a "To Be Considered" ("TBC") under the relevant guidance .
documents relating to Section 121 of the CERCLA and implementing regulations promulgated
hereunder, commonly referred to the National Contingency Plan, 40 CFR Part 300. As a TBC,
the EPA has determined, as a policy matter, that the Executive Order's substantive requirements,
as described below, shall be complied with as part of the State's Enhanced Remedy. For the
reasons described below, Executive Order 11988 is not considered to be an applicable or relevant
and appropriate requirement, whose substantive compliance is legally mandated by CERCLA
section 121d)(2). ,
2.1: CERCLA: Under Section 121(d)(1) of CERCLA, [rjemedial actions selected under this
section or otherwise required or agreed to by the President... shall attain a degree of cleanup of
hazardous substances, pollutants, and contaminants released into the environment and of control
of further release at a minimum which assures protection of human health and the environment.
Such remedial actions shall be relevant and appropriate under the circumstances presented by the
release or threatened release of such substance; pollutant, or contaminant.
2.2 CERCLA: Section 121(d)(2)(A) states, in relevant part, that 'with respect to any hazardous
substance, pollutant or contaminant that will remain onsite, if (i) any standard, requirement, .
criteria or limitation under any Federal environment law [enumerating specific federal laws] or
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
(ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or
facility siting law that is more stringent than any Federal standard.. .is legally applicable to the
hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under
the circumstance of the released or threatened release of such hazardous substance or
pollutant., .the remedial action.. .shall require.. .a level or standard of control.. .which at least
attains such legally applicable or relevant and appropriate standard, requirement or limitation....
2.3: CERCLA Compliance with Other Laws Manual: Interim Final (August 1988 )
This EPA guidance document states that, except where specific statutory exceptions apply,
CERCLA remedies must meet Applicable and Relevant and Appropriate Requirements of other
laws. Simply described, an applicable requirement is a cleanup standard, standard of control and
other substantive environmental protection requirements, criteria or limitations promulgated
under Federal or State law that specifically address a hazardous substance, pollutant,
contaminant, remedial action, location, or other circumstance at a CERCLA site. Relevant
and appropriate requirements are those cleanup standards, standards of control, and other
substantive environmental protection requirements, criteria, or limitations promulgated under
Federal or State law that, while not "applicable" to a hazardous substance, pollutant,
contaminant, remedial action, location, or.other circumstances at a CERCLA site, address
problems or situations sufficiently similar to those encountered at the CERCLA site that their use
is well suited to a particular site, [emphasis added]
2.4: Publication 9280.0-03 EPA A540/R-94/019 Considering Wetlands at CERCLA Sites
(May 1994)
This EPA Guidance document issued by EPA in May 1994 states that "Two issues of
considerable importance on the nation's environmental.agenda are (1) loss of wetlands and other
aquatic habitat, and (2) the impacts, potential or actual, to human health and the environment for
Superfund sites.. ..Superfund actions must meet the substantive requirements of the Floodplain
Management Executive Order (E.O.) 11988) and the Protection of Wetlands Executive Order
(E.O.) 11990.... As a Federal Agency, EPA must follow executive orders." The guidance
continues: "A partial list of TBCs can be found on page 1-85 of the Compliance with Other Laws
Manual. Some examples include NPDES ground water and water quality guidance documents,
policies for the Office of Water, EPA/Army NOAA, and Executive Orders. EO 11998, relating
to floodplain protection and Executive Order 11990 relating to wetlands protection are not
legally enforceable, so they are TBC (to be considered) rather than ARAR.
3.0: Based on the law and guidance above, EPA has determined the Executive Order 11988
is not an "applicable or relevant and appropriate" requirement under Section 121 of
CERCLA and the circumstances of this decision but shall, as a matter of policy under the
particular circumstances presented by this project, be complied with as part of the
proposed State Enhanced Remedy. This determination is based on a finding that the
Executive Order contains requirements applicable to federal agencies that "should be
complied with" under the relevant CERCLA policy guidance documents.
3
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced'Remedy
Appendix L
\ .
3.1 Executive Order 11988 C.F.R. Part 9—Floodplain Management
Executive Order 11988, setting out requirements for federal agencies in the management of floodplain
issues, was issued on May 24, 1977 in furtherance of the National'Environmental Policy Act of 1969,
among other federal statutes, "in order to avoid to the extent possible the long and short term adverse
impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect
support of floodplain development whenever there is a practicable alternative."
Relevant portions of the Order read as follows:
[A]s President of the United States of America, in furtherance of the National Environmental Policy Act
of 1969, as amended (42 U.S.C. 4321 et seq.), .... in order to avoid to the extent possible the long and
short term adverse impacts associated with the occupancy and modification of floodplains and to avoid
direct or indirect support of floodplain development wherever there-is a practicable alternative, it is
hereby ordered as follows:
Section 1. Each agency shall provide leadership and shall take action to reduce the risk of flood loss, to
minimize the impact of floods on human safety, health and welfare, and to restore and preserve the
natural and beneficial values served by floodplains in carrying out its responsibilities for (1) acquiring,
managing, and disposing of Federal lands, and facilities; (2) providing Federally undertaken, financed, or
assisted construction and improvements; and (3) conducting Federal activities and programs affecting
land use, including but not limited to water and related land resources planning, regulating, and licensing
activities.
Sec. 2. In carrying out the activities described in Section 1 of this Order, each agency has a responsibility
to evaluate the potential effects of any actions it may take in a floodplain; ... reflect consideration of flood
hazards and floodplain management; and to prescribe procedures to implement the policies and
requirements of this Order, as follows:
(a)(1) Before taking an action, each agency shall determine whether the proposed action will occur in a
floodplain...
(2) If an agency has determined to, or proposes to, conduct, support, or allow an action to be located in a
floodplain, the agency shall consider alternatives to avoid adverse effects and incompatible development
in the floodplains. If the head of the agency finds that the only practicable alternative consistent with the
law and with the policy set forth in this Order requires siting in a floodplain, the agency shall, prior to
taking action, (i) design or modify its action in order to minimize potential harm to or within the
floodplain, consistent with regulations issued in accord with Section 2(d) of this Order, and (ii) prepare
and circulate a notice containing an explanation of why the action is proposed to be located in the
floodplain. ...
4
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
3.2 Compliance with Requirements of Executive Order 11988
The three basic requirements of Executive Order 11988 are satisfied by the proposed State
Enhanced Remedy as noted below:
1) Executive Order 11988's First Requirement: Before taking an action, each agency shall
determine whether the proposed action will occur in a floodplain. In 1987, the Army Corps
of Engineers assessed the impacts that floodplain filling (and flood capacity loss) may have upon
the flood levels within New Bedford Harbor when its Hurricane Barrier is closed and storm
water from the Acushnet River watershed flows into the basin. See "Hydrology of Floods, New
Bedford Harbor, Massachusetts" completed by the Hydrologic Engineering Section of the Water
Control Branch, Engineering Division of the Department of the Axmy Corps dated September
1987. Based on that analysis, MassDEP concludes that the relevant information indicates that
44,100 cubic yards of fill equated to approximately 27.33 acre feet of fill material will be placed
between elevation =2.0 and elevation =6— NGVD due to the South Terminal Project. (MassDEP
2012 at pp. 41-43.)
In sum, the Massachusetts Department of Environmental Protection calculates in its application
to EPA for the State Enhanced Remedy that the floodplain filling resulting from its proposed
South Terminal Project will occur in a floodplain and will result in 27.33 acre-feet of flood
storage loss behind the hurricane barrier in New Bedford harbor.
2) Executive Order 11988's Second Requirement: If an agency has determined to. or
proposes to conduct, support, or allow an action to be located in a floodplain. the agency
shall consider alternatives to avoid adverse effects and incompatible development in the
floodplain.
In light of the fact that the action (i.e. the State Enhanced Remedy) is proposed in a floodplain,
EPA must consider whether alternatives exist that avoid adverse effects and incompatible
development in the floodplain. Because the project purpose is a marine industrial terminal
capable of supporting off-shore renewable energy development, the Project is by necessity water
dependent. The floodplain will necessarily be impacted because there is no practicable way to
avoid development in the floodplain in constructing a marine terminal that will provide very
large, geologically stable infrastructure capable of supporting the development of offshore
renewable energy facilities.
Further, any alternative is viable only if it is legal under federal law. To be legal under
CERCLA, an alternative must meet all applicable and relevant and appropriate requirements
(ARARs) as discussed above. Because EPA has tentatively determined that for CERCLA
purposes, compliance with the Clean Water Act and the Rivers and Harbors Act is satisfied only
at the South Terminal State Enhanced Remedy Alternative site (See "EPA's Draft Determination
of Compliance with Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act of 1899" (hereinafter referred to "Draft Determination of Compliance with Sections
5
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
404 and 10,"), the South Terminal site is the only viable site among the alternatives addressed in
that evaluation.
Thus, any terminal site meeting the project purpose must by its nature be located in a floodplain.
And among the many alternatives evaluated for compliance with the Clean Water Act and the
Rivers and Harbors Act, only the South Terminal site is a legally viable alternative.
3) Executive Order 11988's Third Requirement; If the head of the agency finds that the
only practicable alternative consistent with the law and with the policy set forth in this
Order requires siting in a floodplain, the agency shall, prior to taking action, (i) design or
modify its action in order to minimize potential harm to or within the floodplain.
As explained above, EPA has tentatively determined that the only practicable alternative
consistent with the law and with the policy set forth in Executive Order 11988 will require siting
the SER in a floodplain! Thus, EPA will design or modify its action in order to minimize
potential harm to or within the floodplain consistent with regulations issued in accord with
Section 2(d) of this Order."1 The relevant regulation issued in accord with Section 2(d) of this
Order provides: The Agency shall also act to restore and preserve the natural and beneficial
values of floodplains. The Agency, shall also act to minimize potential harm to the floodplain as
part of the analysis of all alternatives under considerations.
The South Terminal SER alternative is described in detail in EPA's Draft Determination of
Compliance with Sections 404 and 10.
As part of its proposal, MassDEP anticipates filling approximately 0.18 acres of salt marsh, 1.94
acres of intertidal habitat, and 4.07 acres of shallow subtidal habitat in order to construct the
solid fill wharf. The MassDEP has taken steps to minimize the solid fill by redesigning the
structure so that an additional 0.67 acres of shallow intertidal habitat, which the MassDEP had
originally planned to completely fill, will now be incorporated into a pile-supported apron
adjacent to the wharf and will be only partially filled with riprap on the bottom. In its
application for the South Terminal Project, MassDEP notes that with respect to floodplain
concerns in particular, construction of the South Terminal project will result in some flood
storage loss due to filling within the footprint of the facility. The effects of this loss would be
experienced most notably under the circumstance of a major coastal storm when the New
Bedford Hurricane Barrier would be closed and heavy rain from the Acushnet River watershed
would collect behind the barrier. MassDEP's analysis was completed utilizing a combination of
100-year flood elevations associated with FEMA flood maps as well as an analysis of the impact
1 [Note: Section 2(d) of the Executive Order required that each federal agency issue or amend existing regulations
and procedures within one year to comply with this Order. This requirement was satisfied, when, on January 5,
1979, EPA issued its Statement of Procedures on Floodplain Management and Wetlands Protection to implement
Executive Orders 1 1988 (Floodplain Management) and 11990 (Protection of Wetlands) by its inclusion in 40 CFR
Part 6 as Appendix A. As part of an EPA rulemaking October 19, 2007 EPA removed the Statement as an appendix
to the rule. That latter rulemaking provides that "The Statement remains in effect."
6
-------
EPA Draft Determination for the Proposed South Terminal Project Appendix L
New Bedford Harbor State Enhanced Remedy
of filling within New Bedford Harbor conducted by the US Army Corps of Engineers. Based on that
analysis, the MassDEP calculates that the floodplain filling resulting from its proposed South
Terminal Project would result in 27.33 acre-feet of flood storage loss.
In order to restore the loss of flood storage capacity of the floodplains, MassDEP has proposed
mitigation that would compensate for the flood storage capacity loss at a greater than one for one
ratio. In MassDEP's "Responses to USEPA's 6/26/12 Questions" supplementing its Response to
USEPA Comments on the January 18, 2012 Submission by the MassDEP, it asserts that the
plans for the Marsh Island mitigation project indicate that the Marsh Island project will result in
an increase in flood storage capacity of 39.67 acre-feet, which is more than enough to
compensate for the anticipated 27.33 acre-feet loss from construction of the South Terminal
project.2 One of the primary beneficial floodplain values identified for the area affected by this
project is flood prevention. As a result of the Marsh Island mitigation project, that primary
beneficial value will be restored.
EPA's determination that the SER meets the requirements of Executive Order 11988 is
expressly conditioned on the completion of the Marsh Island mitigation project. With respect to
other natural and beneficial values of floodplains, it is worth noting that as part of the State
Enhanced Remedy, the Commonwealth will undertake mitigation measures related to
environmental impacts related to floodplain values other than flooding. These mitigation
measures include the creation of winter flounder habitat, the creation/restoration of salt marsh
and the reseeding of shellfish. All of these measures serve to advance the goal of preserving and
restoring the beneficial values of floodplains. For a more complete description of these
mitigation measures, see EPA's Draft Determination of Compliance with Sections 404 and 10.
4 Executive Order 11988's Fourth Requirement: Each agency shall provide opportunity
for early public review of any plans or proposals for actions in floodplains. This document
and its attendant public comment period provide that early public review opportunity.
2 The Marsh Island restoration project is outside the scope of this proposed South Terminal Project. EPA has not
received any information from the Commonwealth to indicate that the flood storage created by the Marsh Island
restoration project has been identified as a floodplain mitigation measure for any other activity in New Bedford
Harbor.
7
-------
How to Ensure Effective Community Engagement at Construction Projects:
Lessons Learned from Two CARE Communities in Connecticut
The lessons described in this document are based on the collective
experience of stakeholders working on or impacted by construction
activities in two urban areas in Connecticut. We offer these reflections as
a resource to others facing the challenge of ensuring effective
community engagement on fast-moving projects, especially in
neighborhoods where there are economically or otherwise disadvantaged
populations with a history of perceiving that their needs have been ignored.
Construction projects are often located near urban residential neighborhoods because of the large
concentration of aging infrastructure. However, the close proximity of these projects to people's
homes may result in major impacts. In addition, many urban dwellers, especially high risk residents
such as children and the elderly are already burdened with a multitude of environmental and public
health hazards, ranging from lead paint poisoning, to safety and exposure issues at vacant lots, to
asthma made worst by poor air quality.
At the same time, construction projects must operate within the constraints of project specifications,
demanding schedules, and limited budgets, and must comply with local, state and federal regulations.
This mixture sometimes leads to quality of life and environmental health impacts, which may lead to
resentment and conflict. Therefore, we hope these lessons will be considered by all parties early on in
any construction project in order to ensure meaningful public involvement, to ease the burden on
affected communities, and to minimize construction-related conflicts. A summary of the lessons
learned outlined in this document is provided below.
Pre-planning
Comm utiica tioo
Plan and budget
Establish methods of communication
Coordinate between design and
Use a community liaison
construction
Be accessible to the community
Know the key players and their
Communicate key information about
roles
project activities
Identify community contacts
Respond to key community concerns
Know when there are opportunities to
Public Meetings
participate
Straregize on when and where to
Develop effective outreach materials
hold public meetings
Develop meeting plans in
Minimize Environmental and Public Health
consultation with a range of
Impacts
stakeholders
Implement best practices or guidelines
Coordinate meeting
Increase enforcement
announcements to avoid unrealistic
Include emergency preparedness
or polarizing expectations
Consider using neutral facilitators
who can help turn a potentially
explosive meeting into a
productive session
Green New Haven CARE Project
CT Coalition for Environmental Justice - Bridgeport CARE Project
1
-------
1 low to Unsure l .t
fccrive 1 "ommunity 1 Ingagcmcnt .it (^instruction Projects: Lessons
I.earnetl from Two
(. \K1 t iimmunities in < Connecticut
September 21 HI')
BACKGROUND
I. Bridgeport
Bridgeport CARE, a program of the Connecticut Coalition for Environmental Justice (CCEJ)
funded by EPA, works with the city and dozens of private, government and non-profit partners to
set priorities for reducing pollution and to devise ways to address it. CARE members expressed
concerns about a high-priority public utility project that involved laying a new transmission line
spanning a substantial geographic area. As a result of the project, the level of activity connected
with a construction material (gravel) recycling facility in Bridgeport increased in duration and
intensity, becoming an around-the-clock nuisance to the neighboring community. Due to the
potential impact to traffic during the day, Conn DOT required that the work take place at night. The
vibrations and noise associated with the night work were particularly intolerable to the residential
community. When the level of frustration reached a boiling point, Bridgeport CARE decided to
arrange meetings between residents and industry representatives to negotiate improvements for
people living with problems of dust, fumes, noise, and the visual blight to the neighborhood.
Recognizing that it would be difficult to have a constructive dialogue with tension running so high,
Bridgeport CARE reached out to EPA New England's Alternative Dispute Resolution (ADR)
Program. The ADR Program provided trained neutral facilitators to assist the stakeholders in the
design and conduct of these meetings. To enhance their effectiveness, the EPA facilitators teamed
with a respected community member in the facilitation of one of the more challenging meetings.
The meetings led to a host of short and long-term measures to be implemented by the stakeholders,
often working in collaboration with each other. For example, one outcome was the creation of a
committee of residents and public utility project staff to develop an alternative route through die
neighborhood for construction trucks traveling to the construction material storage facility. Another
especially effective short-term fix was Conn DOT's placement of an inspector at the site to enforce
truck drivers' around-the-clock compliance with state regulations to reduce the noise and pollution
impacts to the neighborhood. Other improvements included trucks reducing speed through
neighborhood, compliance with maximum weight requirements, better signage, and enforcement of
Connecticut's anti-idling law.
II. New Haven
As a result of the intervention in Bridgeport, EPA's Regional ADR Program was contacted by CCEJ
to assist with an escalating situation in the City Point neighborhood of New Haven due to an 1-95
highway widening project. Citizens in the City Point area had serious concerns about impacts to
their neighborhood and houses from the fast-moving project. Emotions flared up when a row of
Green New Haven CARE Project
CT Coalition for Environmental Justice - Bridgeport CARE Project
2
-------
I low 10 I ItiKurc I fU'trivf (.'iimmunity I nj^cnKiit at OwiSrrucrion: Projects: lA's^otis
I.c-innd iVi mi I wo < \KI < !<»mfnu»iirtcs in i jHiuccticui
September 2
mature trees that had served as a noise and visual buffer between the neighborhood and the highway
were removed without notice to the community. Other concerns included air quality, late night noise,
severe vibrations, lack of communication, and other impacts that might be associated with a major
construction project and close proximity to an interstate highway. They were particularly concerned
about potential structural damages to historic homes with stone and gravel foundations as well as
immediate replacement of sound barriers.
As in Bridgeport, but in a way that was tailored to the parties and circumstances in New Haven, a
series of facilitated meetings were convened. The agendas for these meetings were developed in
consultation with community representatives and agency project managers, among other
stakeholders. At the meetings themselves, residents expressed their concerns in a thoughtful way, the
project managers/implementers explained their plans and constraints, and the participants together
developed ideas and steps that could be taken to improve the situation.
Early into the process, EPA's ADR Program made contact with a Connecticut-based community
mediator and began to partner with New Haven's Community Mediation Center. The Community
Mediation Center took over the facilitation role. Many of the stakeholders' ideas have been
implemented and the dialogue continues.
LESSONS LEARNED
Pre-planning
' Plan and budget: In construction projects conducted near residences, especially overnight
construction, planning community engagement activities and adequately budgeting resources
(time, money, and in-kind efforts) is crucial and will help ensure an effective public
involvement process. Public involvement commitments such as advance notification of
commencement of major phases and periodic public information meetings should be
included in project specifications and discussed during the pre-construction meeting. Any
public involvement commitments (e.g. contractor attendance at meetings) should be clearly
stated in the contract documents so the contractors bidding on the work are aware of them.
Any work that may be needed, to address potential community concerns such as sound
barriers, should be initially addressed early in the budget period and may be deleted later if
deemed unnecessary.
Coordinate between design and construction: For the state transportation agency
responsible, coordination between design units and construction units is important. There is a
process in place that requires project engineers to keep a commitment tile for each project.
Project managers should ensure that these commitments are communicated during each
Green New Haven CARE Project
CT Coalition for Environmental Justice - Bridgeport CARE Project
3
-------
I low i« 1 iisuit I .ffVciiyc C :< immunity I iigagcmart ;ir Consirmnim I'rnjvcts: I csson-
l.c:uiiid from 1'vvod Vftl < ommuinrics in <.'iinnurticul
September 2t HW
phase of the project. Developing written summaries of commitments to communities after
final design meetings can be part of the design unit responsibilities, or can be done by
community organizations in the form of a letter to the agency confirming their
understanding of the commitments.
Know the key players and their roles: The agencies and contractors involved with a
project should familiarize themselves with the community, its history, groups, and issues
related to the project's activities. Community members should also know the Agency
personnel, project managers, and contractors implementing the project, and most
importantly, who is responsible for what at a project.
Identify community contacts: The agency leading the project and the impacted
community should work together to identify community groups and leaders,
individual stakeholders, experts, local officials, neighborhood organizations,
neighborhood revitalization zones, local libraries, churches, health and environmental
organizations to measure interest in the issues and to request help reaching their
members and others they believe may have an interest. Your state environmental
agency or the EPA also may be able to provide assistance with identifying these
important community contacts. Visit the following website for EPA and state
contact information: http://www.epa.gov/region 1 /ej/programcontacts.html.
Public Meetings
Strategize on when and where to hold public meetings: Hold public meetings prior to
the start of the project to explain the construction timeline, work plan, and address residents
concerns. However, one meeting is not enough. Continue to hold regular meetings
throughout the project timeline on a regularly scheduled basis even if there are few issues for
a particular meeting. It is easier to cancel a regular meeting than to schedule one in the
middle of a controversy. Choose meeting locations and times that are convenient for
residents. List the start and end times for meetings.
Develop meeting plans in consultation with a range of stakeholders: Public meetings
should be scheduled and the agenda developed collaboratively. Representatives of the
community and the project managers (DOT, FHWA, contractors, etc.) should have
meaningful input into the scope, timing, duration, and content of public meetings to address
community concerns. There are often multiple agencies and even multiple levels of
government involved in a project. When planning a meeting, efforts should be taken to
ensure all participating agencies will be represented.
Green New Haven CARE Project
CT Coalition for Environmental Justice - Bridgeport CARE Project
4
-------
I low to I nsure Infective
-------
t low i< > I tisna I fltcnvc < jimmumtv I lit < onsinicit
-------
I low to I ustiri- I flVcrivc < (immunity liif:.tt;emint .it (.'(instruction I'rojects: lessons
I-earned from Two ( Mil < .
REFERENCES
• EPA's Public Involvement Policy: http://www.cpa.gov/publicinvolvernent/public/index.htm
How-To Brochures For Effective Public Involvement;
http://www.epa.gov/publicinvolvement/brochures/index.htm
• Tools for Public Involvement: http://www.epa.gov/publicinvolvement/involvework.htm
• Rliode Island "Green During Construction Phase" Initiative: www.lungne.org/
• City of Boston Environment Department Guidelines for Construction:
www.cityofboston.gov/environment/pdfs/construction guidelines.pdf
• National Cooperative Highway Research Program. Best Management Practices
for Environmental Issues Related to Highway and Street Maintenance
http://ntl.bts.gov/lib/2IG0Q/21800/21818/PB99143489.pdf
• Tools and Best Practices Supporting the Recovery Act:
http://www.epa.gov/recovery/resources.html
• U.S. Institute for Environmental Conflict Resolution: http: / /www.ecr.gov/
• EPA Alternative Dispute Resolution Contacts:
http;//www.epa.gov/adr/cprc adrcontacts.html
• Diesel Engine Retrofits in the Construction Industry: A How To Guide:
http://www.mass.gov/dep/air/diesel/conretro.pdf
• Diesel Exhaust in New England:
http;//www, gpa.gov/regiQnl/ccQ/diesd/assets/pdfs/dicseLbrwhurc-pdf
Construction Bid Specs:
http;//www.epa.goy/rcgionl/ecQ/gb3/pdfs/Consu;uction VehicleRetrQlitSpccs.pdf
• Emergency Planning and Community Right-To-Know Act (EPCRA):
http:/ / www.epa.gov/oecaagct/lcra.html
Green New Haven CARE Project
CT Coalition for Environmental Justice - Bridgeport CARE Project
7
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix M
Determination of Compliance
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations
Executive Order 12898
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix M
Executive Order 12898 - Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations
Under Executive Order 12898 (Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations), "[t]o the greatest extent practicable
and permitted by law ... each Federal agency shall make achieving environmental justice
part of its mission by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the United States." See
Executive Order 12898, 59 Fed. Reg. 7,629 (Feb. 16, 1994), § 1-101. Furthermore,
"[e]ach Federal agency shall conduct its programs, policies, and activities that
substantially affect human health or the environment, in a manner that ensures that such
programs, policies, and activities do not have the effect of... subjecting persons
(including populations) to discrimination under, such, programs, policies, and activities,
because of their race, Color, or national origin." Id. § 2-2. With respect to public
process, the Executive Order also authorizes federal agencies to "translate crucial public
documents, notices, and hearings relating to human health or the environment for limited
English speaking populations," and requires federal agencies to "work to ensure that
public documents, notices, and hearings relating to human health or the environment are
concise, understandable, and readily accessible to the public." Id. §§ 5-5(b)-(c). In
addition, the state of Massachusetts has an Environmental Justice Policy promulgated by
the Massachusetts Executive Office of Environmental Affairs which identifies
environmental justice populations and requires enhanced review of impacts and enhanced
public participation opportunities for agency activities that may affect these populations.
Massachusetts Department of Environmental Protection's (MassDEP) analyzed the
census tracts located wholly or partially within or along the truck access route (Route 18)
in order to identify potential environmental justice populations. Based on the percentages
of minority and low-income populations, MassDEP identified all of the block groups in
the study area as environmental justice areas. This approach to identifying environmental
justice populations is consistent with CEQ's Environmental Justice Guidance Under the
National Environmental Policy Act, Appendix A Guidance for Federal Agencies on Key
terms in Executive Order 12898. MassDEP then considered the existing and potential
traffic, noise, and air impacts to these census block groups. Based on information
provided by MassDEP, the proposed project's additional traffic, noise and air impacts are
expected to be minimal, and therefore, are not expected to have disproportionately high
and adverse human health or environmental effects on minority or low-income
populations. See " State Enhanced Remedy in New Bedford, South Terminal (1/18/12
Submittal),'" Massachusetts Department of Environmental Protection, pp. 282-295. EP A
feels that MassDEP appropriately evaluates the impacts to environmental justice
populations.
EPA wants to emphasize the importance of continued community outreach and
involvement throughout the project. Community input should be meaningfully
considered and concerns addressed to the greatest extent practicable. We continue to
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix M
recommend that the meetings be held in the affected community at reasonable times
(evening) to give everyone an opportunity to attend and that translators are provided
during the meetings to allow residents not fluent in English to participate. We also
recommend that meeting announcements be communicated via ethnic media (radio,
websites, newspapers) to enhance public participation in the affected communities and
that all documents continue to be translated in appropriate language(s), and copies made
available via public libraries and community centers.
In its discussion of mitigation measures (p. 292), the MassDEP indicates that a
Construction Management Plan (CMP) will be required in order to minimize
construction-related impacts. MassDEP's "Response to EPA Comments (6/18/12)"
provides more details about the CMP. The CMP will provide steps for proactive
minimization and mitigation of construction impacts including dust, traffic, noise,
vibration, and visual impacts, as well as other types of construction impacts. The CMP
will:
• Include a section on Public Involvement and Information which will describe a
process for informing the public about progress of construction and upcoming
construction-related activities.
• Identify a point of contact for the project during the construction phase of the
project.
• Define measures to minimize air quality impacts. Such measures could include
wetting soil surfaces and covering soil piles.
• Examine options to provide short term fence line monitoring for PM10 along the
boundary with the nearest residential area.
Contractors will be encouraged to use diesel oxidation catalyst retro-fitted vehicles and
equipment. An air monitoring program will be conducted throughout the construction
process. Information will be made available to the surrounding community in an easily
understandable format. A sound management plan should be developed to define the
construction noise sources and mitigation measures to be taken to minimize sound impact
from those sources. To minimize noise impacts to the surrounding community,
measurements will be collected daily for noise along the property boundary.
EPA feels that MassDEP is planning an appropriate approach to mitigating construction-
related impacts through the development of a CMP. We are encouraged to see a
proactive approach to communicating information about the project with the impacted
community, as well as, providing a point of contact for the community during the
construction phase. We continue to strongly recommend that construction best practices
or guidelines be used as the CMP is finalized.
Finally, EPA continues to recommend that the requirements of the Massachusetts
Executive Office of Environmental Affairs environmental justice policy continue to be
applied to this project. EPA also recommends that the attached fact sheet entitled, "How
to Ensure Effective Community Engagement at Construction Projects: Lessons Learned
from Two CARE Communities in Connecticut" be considered (Attachment 1).
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix N
Determination of Compliance
Invasive Species Executive Order 13112
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhance Remedy
Appendix N
Executive Order 13112 Invasive Species
On February 3, 1999, Executive Order 13112 was issued directing federal agencies to
review their actions to enhance the control and'management and prevent the spread of
invasive species. The federal action in question is the inclusion of the South Terminal
Port Facility within the State Enhanced Remedy for the New Bedford Superfund Site.
As a multipurpose marine terminal capable of supporting offshore renewable energy
development (and other future uses), the proposed port has the potential to facilitate the
spread of invasive species in a number of ways. The initial wind energy development
project is expected to require 26 separate deliveries of wind turbine components by
international vessels. Ocean-going vessels are the most prominent vector for the
transportation of invasive species. This occurs in ballast water, bilge water and along the
hull. Second, the construction of the facility itself will result in the placement of a new
bulkhead into the inner harbor. The new uncolonized surface of the bulkhead represents
an opportunity for new invasive species to establish a foothold or for invasive species that
may already be within our waters to spread even further.
Compliance with existing international agreements and federal and state regulations
should prevent the discharge of bilge water. Bilge water generally contains oil and thus
discharging water with oil into the marine environment is covered by Section 311 of the
Clean Water Act, the Act to Prevent Pollution from Ships, and the international agreement
MARPOL Annex I. All of these prohibit the discharging of untreated oil to navigable
waters of the United States.
The Commonwealth states that the freighters entering New Bedford with renewable
energy components will be fully laden and as a result will have minimal need for ballast
water. The submission states that if there is a need for ballast water disposal, the ballast
will be "collected and disposed of in accordance with all requisite regulations."
MassDEP 2012 at p. 265. The jack-up barges and other construction support vessels do
not carry ballast water.
The presence of foreign vessels, the use of jack-up barges from outside of New England
waters and the new bulkhead surface at the proposed terminal represent a risk of spread
or colonization of invasive species. Executive Order 13112 describes Federal Agency
duties:
not authorize, fund, or carry out actions that it believes are likely to cause or
promote the introduction or spread of invasive species in the United States or
elsewhere unless, pursuant to guidelines that it has prescribed, the agency has
determined and made public its determination that the benefits of the such actions
clearly outweigh the potential harm caused by invasive species, and that all
feasible and prudent measures to minimize risk of harm will be taken in
conjunction with the actions.
1
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhance Remedy
Appendix N
Consistent with this executive order, EPA has tentatively determined that it is prudent for
the Commonwealth to institute a post-construction monitoring program at the terminal on
the new bulkhead for the presence of invasive species. The bulkhead represents a
reasonable intervention point to find any potential new introductions from foreign
vessels.
In addition, EPA has reviewed the Commonwealth's proposed Invasive Species
Management Plan (ISMP) (MassDEP, 2012a, Attachment P), and believes that a modified
ISMP, in conjunction with the requirements of the Compensatory Mitigation Plan
described in Section 7.3 of Appendix E, would be adequate to control the spread of
invasive plant populations within the proposed wetland restoration area that could
prevent successful mitigation of impacts to wetlands. Such modified ISMP must be
incorporated as part the Commonwealth's Compensatory Mitigation Plan, which will be a
condition of EPA's authorization.
2
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix O
Determination of Compliance
Fish and Wildlife Coordination Act (16 U.S.C. §661-667e)
i
-------
EPA Draft Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix 0
Fish and Wildlife Coordination Act ("FWCA "), 16 U.S.C. §661-667e
The Act of March 10, 1934, authorizes the Secretaries of Agriculture and Commerce to provide
assistance to and cooperate with Federal and State agencies to protect, rear, stock, and increase
the supply of game and fur-bearing animals, as well as to study the effects of domestic sewage,
trade wastes, and other polluting substances on wildlife.
Amendments enacted in 1946 require consultation with the U.S. Fish and Wildlife Service
("FWS") and the fish and wildlife agencies of States where the "waters of any stream or other
body of water are proposed or authorized, permitted or licensed to be impounded, diverted ... or
otherwise controlled or modified" by any agency under a Federal permit or license. Consultation
is to be undertaken for the purpose of "preventing loss of and damage to wildlife resources."
The FWS's primary objective under the FWCA is to ensure that approved project plans include
necessary means and measures to guarantee the conservation of fish and wildlife resources. Full
participation in the process - the collective procedures mandated by the FWCA - is essential to
the accomplishment of FWS and FWCA objectives. This process includes consultation, which
involves informal and formal participation in all phases of project planning, construction,
operation, and maintenance; reporting of findings and recommendations, which is the formal
culmination of mandated surveys and investigations; and consideration and implementation,
which, technically, are action agency activities but that may be significantly influenced by FWS
actions and continued participation in the planning and decision making process.
By letter dated February 3, 2012 EPA, transmitted to FWS the Commonwealth's January 18,
2010 submission regarding the proposed South Terminal Project. EPA subsequently transmitted
copies of the June 18 and 29, 2012 submissions to FWS. In the February 3, 2012 letter EPA
advised FWS that as EPA performs its evaluation of the project and develops a draft decision
document, it would closely coordinate with FWS regarding both the FWCA and the Endangered
Species Act and seek comment on key portions of the decision package. EPA's tentative
conclusions regarding potential impacts to fish and wildlife from the project and potential
mitigation measures are discussed in sections 5j 6 and 7 of the Draft Determination of
Compliance with Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors
Act. EPA will consider any comments provided by FWS during the public comment period
regarding the project and EPA's draft decision document as it formulates its final decision,
consistent with FWCA.
1
------- |