U.S. EPA I NEW BEDFORD HARBOR SUPERFUND SITE STATE ENHANCED REMEDY
LEARN MORE AT:WWW.epa.gov/nbh
Final Determination for the
South Terminal Project
For the Commonwealth of Massachusetts'
Request to Include Construction of a
Confined Disposal Facility as Part of
the State Enhanced Remedy
FINAL DETERMINATION SUMMARY:
After completing consultation with other federal and state agencies, as required by federal and
state law, reviewing additional submissions by the Commonwealth, and after careful consider-
ation of the public comments received during the public comment period, EPA has determined
that the Commonwealth's proposal to construct a 28.45 acre marine terminal, consisting of a
confined disposal facility ("CDF") and upland area in the South Terminal location of the New
Bedford Harbor, as well as the dredging and filling associated with that construction, includ-
ing dredging and filling of confined aquatic disposal cells ("CAD cells") (collectively, referred to
herein as the "South Terminal Project" or the "Project"), is both protective of human health
and the environment and meets the substantive requirements of applicable or relevant and
appropriate federal environmental standards and, through the Commonwealth's determina-
tion, meets applicable or relevant and appropriate state environmental standards, as long as
all the conditions set forth in this Final Determination are met. As a result, by this Final Deter-
mination, EPA is modifying the State Enhanced Remedy ("State Enhanced Remedy" or "SER"),
which is incorporated into the 1998 Record of Decision for the Upper and Lower Harbor at
the New Bedford Harbor Superfund Site ("1998 Record of Decision" or "1998 ROD") so that it
includes the South Terminal Project.
The Commonwealth of Massachusetts, through the Department of Environmental Protection
("MassDEP"), will continue to be the lead agency for conducting the State Enhanced Remedy
work, as modified, and is responsible for securing all funding of the State Enhanced Remedy
work, as modified. EPA and other federal, state and local entities will continue to act as sup-
porting regulatory agencies for the State Enhanced Remedy work, as modified.
Portuguese and Spanish translations of this document are available at the New Bedford Public
Library, at EPA New England's Record Center and online at www.epa.gov/nbh or http://www.
mass.gov/eea/ocean-coastal-management/serth/
Para obter uma versao traduzida deste documento,por favor entrar em contato com
Kelsey O'Neil, EPA • (617) 918-1003 Oneil.kelsey@epa.gov
Para obtener una version traducida de este documento, favor de communicarse con
Kelsey O'Neil, EPA • (617) 918-1003 Oneil.kelsey@epa.gov
continued >
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EPA 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
STATE CONTACT:
GARY DAVIS
MassDEP General Counsel
(617) 626-4983
gary.davis@state.ma.us
vvEPA
United States
Environmental Protection
Agency
November • 2012
SDMS DOCID
525556
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Public Comments and EPA Response to Public Comments
EPA issued a Draft Determination and administrative record for the South Terminal Project on July 16,
2012 and held a 30-day formal comment period from July 16 to August 21, 2012. During that time EPA
accepted written comments via mail and email. Additionally, verbal comments were recorded at a
formal Public Hearing that followed an informational meeting, both of which were held on July 24, 2012.
A transcript of that Public Hearing is included in the Administrative Record aiong with ail the written
comments EPA received during the public comment period. EPA specifically sought public comment on
EPA's finding under the federal Clean Water Act ("CWA") that the South Terminal Project is the least
environmentally damaging practicable alternative; on the actions relating to floodplains; and on two
Toxic Substance Control Act (TSCA) risk-based findings concerning the disposal of poiychlorinated
biphenyls ("PCBs") in CAD cells. For a detailed discussion of these findings and the conditions upon
which these findings are based, see Appendix E (Clean Water Act); Appendix I (Floodplains) and
Appendices J(l) and J(2) for the TSCA Determinations.
Public Record
EPA considered and responded to all formal comments received during the comment.period before
issuing this Final Determination. Those responses to comments are contained in a Responsiveness
Summary, attached as Appendix Q. The public comments and the Responsiveness Summary have been
added to the public administrative record for the South Terminal Project.
Since the issuance of the Draft Determination, the Commonwealth has provided more details about this
Project consistent with the requirements of the Draft Determination. In addition some changes to the
Project have been made as a result of EPA's review of the Commonwealth's more recent information.
Significant documents submitted by the Commonwealth since July 16, 2012, are listed in Table 3.
These documents offer additional details about and some changes to the Project that were not included
in the Draft Determination. Information was also submitted to meet conditions set out in the Draft
Determination including, among other things, the final site configuration, information about
contamination and historic resources on additional properties added to the final site configuration,
mitigation measures to protect the Atlantic sturgeon and other fish, changes to areas of wetland
mitigation, and alternative sub-tidal rock removal techniques. EPA shared relevant new information
with other federal and state agencies while completing its consultation requirements. EPA then
reviewed these documents and considered whether the changes are significant enough to require
additional public comment. As a result of that review EPA believes that (1) public comments received,
other than those from consulting agencies, did not raise issues that would cause EPA to reconsider its
findings in the Draft Determination; (2) EPA incorporated relevant new information during discussions
with federal and state agencies as it completed its consultation requirements; and (3) the Draft
Determination contained adequate information about the fundamental components of these tasks and
this information does not significantly change the Project. Therefore, EPA has determined that an
additional public comment is not necessary. See page 6 of this Final Determination for a more detailed
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 2
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discussion of the new information provided and changes made to the Project that was presented in the
Draft Determination.
EPA has also received from the Commonwealth the following plans which will not be reviewed as part of
this Final Determination: Air Monitoring Plan, Emergency Spill Response Plan, Draft Stormwater
Pollution Prevention Plan, Construction Management Plan, Phase IV work plans, Final Underwater
Acoustic Modeling Plan, and a Long-Term Monitoring Plan. EPA will review these work plan's after the
issuance of this Final Determination to ensure the plans are consistent with the Project as described in
this Final Determination. These plans will also be reviewed by the Regulatory Agencies (see footnote 7)
consistent with their roles as supporting agencies for the State Enhanced Remedy work.
EPA has added the new information provided by the Commonwealth to the administrative record.
The Administrative Record in support of this Final Determination for the South Terminal Project will be
available at the New Bedford Public Library, 613 Pleasant Street, 2nd floor Reference Department, New
Bedford, MA (508) 961-3067 and the EPA New England Records Center, 5 Post Office Square, Is' floor,
Boston, MA (617) 918-1440 or online at www.eoa.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.
The Final Determination At A Glance...
This Final Determination includes the South Terminal Project as part of the State Enhanced Remedy that
was approved and integrated into the 1998 Record of Decision for New Bedford Harbor. This document,
and its supporting Appendices and Administrative Record, provides the rationale for EPA's
determination that, although the South Terminal Project increases the scope and detail of the SER as set
forth in the 1998 ROD, it does not fundamentally change the approved SER and 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. seq.1
With this document, EPA determines that the South Terminal Project, which consists of constructing a
28.45 acre marine terminal (consisting of 6.91 acres of filled waters (referred to as "the confined
disposal facility" or the "CDF") and approximately 21.54 acres of upland area, (including a filled 0.11 acre
freshwater wetland and 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 arid filling of confined aquatic disposal cells 2 and 3 and capping of CAD
cell 1 and the borrow pit, is both protective of human health and the environment and meets the
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
§§3C0.435(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,
EPA Final Determination for the Proposed South Terminal Project Page 3
New Bedford Harbor State Enhanced Remedy .
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substantive requirements of applicable or relevant arid appropriate federal environmental standards.2
EPA also accepts the Commonwealth's determination that the Project meets the applicable or relevant
and appropriate state environmental standards. The 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, the comments received during the public
comment period, and after completing its consultation requirements with other federal and state
agencies. This Final Determination is subject to the conditions set out below beginning on page 20 of
this document. Accordingly, the South Terminal Project will benefit from the Section 121(e) permit
exclusion.
Why Is EPA Issuing This Final 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. 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 Plan3, 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 shore.4 As
contemplated under the 1996 Proposed Plan and the 1998 Record of Decision ("1998 ROD"), it was left
to the Commonwealth to formulate the specific details of the dredging projects and disposal options.
With respect to the South Terminal Project, the Commonwealth provided specific details related to the
Project through the Commonwealth's submittals which have been incorporated into the Administrative
Record. These submittals provide details, including alternatives to, and impacts of the 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
2 These figures have been slightly revised from those presented in the Draft Determination as a result of a site visit
conducted by EPA and the Commonwealth on September 13, 2012 and the revised site configuration as shown in
Figure 4 of this Determination.
3 Proposed Cleanup'Plan, Upper and Lower New Bedford Harbor, New Bedford, MA, November, 1996
4 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 Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 4
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projects meet CERCLA requirements in order for the proposed Project to benefit from CERCLA's permit
exclusion.
After reviewing the Commonwealth's submittals and the public comments received, and after
completing its consultation requirements, EPA determined that the 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 Project remains consistent with and does not conflict with the remedy.
Jhe scope and a summary of the Project are presented below.
Scope and Summary of the South Terminal Project
This Final Determination incorporates into the State Enhanced Remedy the location and construction of
a shoreline marine terminal, including a 6.91 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 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.
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 Management5 and was not within the scope of this Project. The
Project's CAD cell 3 will be located within this state-approved 2003 DMMP area. This Final
Determination includes 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 3.6
5 The 2003 DMMP, prepared to comply with the Massachusetts Environmental Protection Act and its
implementing regulations (M.G. L. c. 30, ss. 61-62H; 301CMR 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.
www.mass.eov/czm/dredeereports/2003/feirnb-f.htm
6 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 Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 5
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Remediation of the upland portion of the main terminal adjacent to the Project's CDF will be conducted
independently by the Commonwealth through the State hazardous waste cleanup program M.G.L. c. 21E
("2IE"), and its implementing regulations in the Massachusetts Contingency Plan ("MCP"), 310 CMR
40.0000. However, most of the main marine terminal, including the remediated portions, will be subject
to the conditions set out in a risk-based TSCA Determination which is attached to this Final
Determination as Appendix J(l). Ancillary properties and River's End Park shall also be subject to 21E
requirements and, if necessary, remediated pursuant to 21E and TSCA; additional TSCA Determinations
also may be necessary. Easements/transportation corridors will be paved, maintained and monitored as
long as these parcels are used as part of the marine terminal. In addition, currently paved parcels will
also be maintained and monitored as long as these parcels are used as part of the marine terminal.
Lead Agency
The entire cost of this Project will be funded by various funding mechanisms available to the
Commonwealth; the federal Superfund will not be funding any portion of this Project.
Construction of the Project will be overseen by the Commonwealth, through Massachusetts Department
of Environmental Protection, as lead agency for the State Enhanced Remedy with ongoing consultation
of the Regulatory Agencies7 (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
•accordance with the State Enhanced Remedy process. EPA will also remain involved in overseeing the
Project to ensure it is implemented consistent with this Final Determination, Construction of the 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 2014s.
Changes to the Project between the Draft and Final Determination
1. Final Site Configuration
The final configuration of the main terminal facility, CDF and ancillary properties is depicted in Figure 4,
along with the amount of impacted acreage.9 EPA required that the final configuration of the New
Bedford Marine Commerce Terminal, including all ancillary properties, be finalized as a condition of the
7 The agencies that comprise the "Regulatory Agencies" and the roles and responsibilities of the Commonwealth
and these Regulatory 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.
8 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. As of the issuance of this FinalDetermination, the Commonwealth has not provided a further
revised schedule, •
9 This configuration differs slightly from configuration A (Appendix 4a) of the Draft Determination.
EPA Final Determination for the Proposed South Terminal Project Page 6
New Bedford Harbor State Enhanced Remedy .
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Draft Determination before EPA would issue this Final Determination. As of the date of this Final
Determination, the Commonwealth owns some but not all of the parcels included in the final
configuration; however, the Commonwealth is engaged in negotiations to obtain the necessary property
rights to finalize the terminal configuration in Figure 4. (See MassDEP 2012a at 8-9.) Although the
Commonwealth does not yet have complete site control, EPA believes it is reasonable to issue this Final
Determination based on the Commonwealth's assurance that it is committed to developing the terminal,
facility on these parcels and has the necessary taking authority to obtain site control.10 However, to
ensure that no harm to the aquatic environment occurs as long,as the actual site control is uncertain,
EPA is conditioning its final approval by requiring that the Commonwealth demonstrate full site control
before it commences any work in water of the U.S. (See also Section 4.4.7 of Appendix E.)
a. Change to Community and Resource Impacts
While the CDF location remains unchanged in the final configuration, the changes made by the
Commonwealth with respect to certain parcels included within the Project slightly modifies community
impacts. Excluding the Gifford Street boat ramp parcel alleviates access concerns to the ramp; however,
the Gifford Street Channel will still be realigned and two new mooring areas created. Reducing the size
of the Shuster parcel (Map 31, Parcel 263) alleviates impacts on the existing business on that parcel.
Inclusion of the Radio Tower parcel (Map 31, Parcel 234) will require relocation of the radio tower and
its appurtenances.
See section regarding Mitigation Measures on page 8 for information about changes to resource
impacts. . :
V.
b. Additional Upland Work
The final site configuration includes several properties that require additional work to prepare them for
use. In the absence of 21 E assessments, i.n consultation with EPA's TSCA program, unpaved portions of
parcels identified as easement/transportation corridors will be paved, maintained and monitored until
these parcels are no longer used as part of the marine terminal. All other currently paved parcels will
be similarly maintained and monitored until these parcels are no longer used as part of the Project.11
Based on the 21E, Phase 1 assessments provided to EPA on October 1, 2012, there are indications of the
presence of contamination on certain parcels, including the Radio Tower parcel, and the debris on the
Hathaway parcel (Map 21, Parcel 30) and the former Dartmouth Finishing site (Map 21, Parcel 45).
Although these parcels are not subject to Superfund remediation, because this Project is authorized as
part of the State Enhanced Remedy, EPA is conditioning its final approval on the Commonwealth's
10 See MassDEP2012i email from Gary Davis, General Counsel, Massachusetts Executive Office of Energy and
Environmental Affairs, to Carl Dierker, Regional Counsel, EPA.
11 In its MassDEP2012h submittal, the Commonwealth stated it would "monitor and maintain, pursuant to an .
agreed upon schedule, all asphalt on these areas so long as the Commonwealth has control of these areas." See
also MassDEP2Q12l submittal as to all other currently paved areas. As a condition of its final approval, EPA is
requiring that these areas remain paved, maintained and monitored as long as they are used as part of the marine
terminal.
EPA Final Determination for the Proposed South Terminal Project Page 7
New Bedford Harbor State Enhanced Remedy
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pursuit of due diligence by conducting further investigations on any parcel where contamination was
indicated as noted in the 21E assessments, and that remediation, if contamination is found, occur in
accordance with 21E, and with EPA's TSCA program if PCBs are found. Remediation of main terminal
parcels as described in the Draft Determination remains unchanged.
As a condition of it final approval, to meet TSCA requirements EPA is requiring certain sampling and
disposal activities for work to be performed on the excluded portion of Map 31 Parcel 288 (the vacant
Shuster parcel). Although this excluded portion of this parcel is not included in the Project, work that
will be conducted on this area is necessary to support the structural integrity of the surrounding land for
the anticipated heavy loads. Similar to the work being performed on the remainder of Map 31, Parcel
288, soil in the excluded area will be excavated down to the high water mark, compacted as necessary
for geotechnical purposes and backfilled with excavated materials and/or clean imported soil to final
grade. Any soil deemed "geotechnically unsuitable" may be removed and disposed of off-site. See page
33 for more information and Attachment 5 to Appendix J(l) for a map of the excluded area of Parcel
288.
2. Mitigation Measures
a. Salt Marsh arid Wetland Mitigation
EPA's Draft Determination included a proposal for restoration and enhancement of 1.9 acres of
successional marsh (also referred to as the drainage swale) along the western end of the New
Bedford/Fairhaven Hurricane Barrier, conditioned upon the U.S. Army Corps of Engineers' concurrence
that the channel design in the proposed mitigation measure would have no adverse effect on the
operation of the Hurricane Barrier in accordance with § 408 of the Clean Water Act.12 However,
subsequent to the issuance of the Draft Determination, the Commonwealth abandoned that plan and
proposed an alternative compensatory mitigation plan the includes creation of approximately 1.02 acres
of salt marsh adjacent to River's End Park in New Bedford to compensate for the loss of 0.11 acres of
salt marsh and 0.106 acres of freshwater wetlands. Because areas of River's End Park have been
subject to PCB remediation as part of the New Bedford Harbor Superfund site, as part of its final
approval, EPA is requiring that a soil and sediments characterization, removal, and disposal work plan be
submitted to EPA for review and approval at least 30 days prior to commencement of mitigation
activities at River's End Park. See Section 7 of Appendix E to this Final Determination for a complete
discussion of the Final Mitigation Plan.
b. Protection of Atlantic Sturgeon, Winter Flounder, and other Finfish
As part of its informal consultation with National Marine Fisheries Service (NMFS) under the Endangered
Species Act, EPA transmitted its Biological Assessment and conclusions to NMFS that the proposed
South Terminal Project may affect the Atlantic sturgeon, an endangered species, but, with specified
12The U.S. Army Corps of Engineers continues to review potential impacts on the hurricane barrier from blasting in
the event the Commonwealth seeks to modify this Final Determination in the future if blasting is needed for rock
removal.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 8
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mitigation measures, it is unlikely to adversely affect the species. NMFS concurred with ERA'S
conclusions,13 EPA also consulted with NMFS under the Magnuson-Steven Act on potential impacts
from the Project to designated essential fish habitat ("EFH") for commercial species. EPA determined
that impacts to EFH species will be minimized and mitigated to the greatest extent practicable provided
that the Commonwealth fully implements a variety of minimization and mitigation measures. As part of
the mitigation measures to protect winter flounder, the Atlantic sturgeon, and other finfish, a Fish
Deterrent Program has been added to the Project. This Program includes erecting silt curtains, bubble
curtains and fish weirs around specified work areas from January 15 through June 15 to prevent fish
from entering the work area. Fish startle systems will be deployed before construction begins to move
fish out of harm's way. From January 15 to June 15, weekly monitoring will occur to ensure the barriers
maintain their physical integrity and that no fish have made it into the Project area. EPA has also revised
the water quality and turbidity performance standards to clarify use and timing of silt curtains and other
mitigation measures. See Appendix C for the revised performance standards and Fish Deterrent Plan.
See Appendix E for more detailed discussion of mitigation measures.
/ - . ' '
c. Blasting Impacts
Although the Draft Determination identified blasting as a potential method for removal of shallow rock
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, EPA is not approving the use of
blasting to remove rock in this Final Determination for this Project. EPA does not have sufficient
information on the potential environmental impacts associated with blasting, particularly with respect
to impacts on Atlantic sturgeon and other aquatic species, and on the Hurricane Barrier, to make an
informed judgment at this time. If blasting is ultimately deemed necessary, the Commonwealth will
need to seek a modification of the Final Determination, and will need to provide additional information
on potential impacts from blasting and mitigation steps needed to minimize or eliminate those impacts.
While blasting is not within the scope of this Final Determination, pile driving and rock removal
activities, using standard construction equipment, will occur during construction of the marine terminal.
To minimize noise and wave pressure impacts from these activities on the Atlantic sturgeon and other
finfish, sheet piling will be installed through the use of vibratory hammers, and drilling and grouting
measures, which do not cause noise impacts, will be used for pile installation outside the sheet pile
walls. Pilings constructed inside the sheet pile wall are considered an upland activity that will not
impact fishery resources and will be vibrated or driven in. (For a more detailed description of these
activities, see the Commonwealth's letter to EPA dated October 4, 2012, MassDEP2012j, Appendix 1).
Rock removal will be accomplished through conventional non-blasting techniques, of which there are
four primary methodologies. They are commonly referred to as Hoe Ram, Bucket Removal, Drill and
Fracture and Cutter Head Dredging. The details of each methodology, its benefits and drawbacks are
discussed in Appendix H. In EPA's view, any of the four techniques provide a reduced level of impact
13 See Appendix K(2) for EPA's Biological Assessment for the Atlantic sturgeon. See also letter dated November 14,
2012 from NMFS to EPA.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 9
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compared to blasting. Rock removal, independent of the technique used must meet the Water Quality
Performance Standards outlined in Appendix C.
See also Appendices E and I of this Final Determination for additional discussion regarding mitigation
measures for impacts associated with pile driving and rock removal activities.
3. Additional in-Water Work
The Commonwealth requested that potential additional work be evaluated as part of EPA's Draft
Determination, although funding for that proposed work had not yet been secured. The proposed
additional work consists of (1) expansion of up to 300 feet increase in length of the deep draft berthing
area; (2) a width increase of 50 feet in the approach channel; and (3) expansion of CAD cell 3 to
accommodate the additional volume of dredged contaminated sediment (below 50 ppm PCBs). EPA
included the impacts this additional work as part of its evaluation. During the public comment period,
the National Marine Fisheries Service commented that the record did not support the need for this work
to meet the purpose and need of the proposed project, and the impacts of the project have not been
minimized to the maximum extent practicable.
EPA reviewed the record and did not find adequate justification for the additional work, and
therefore, does not approve the additional wprk as part of this Final Determination. If, in the future,
facts change that could justify additional dredging, the Commonwealth, up to the date the State
Enhanced Remedy work ends,14 may seek a modification of this Final Determination if additional
information becomes available that would justify the need for dredging or deep draft berthing area
or justify the additional dredging to widen the navigational channel beyond 175 feet. To avoid
segmentation concerns, EPA evaluated the impacts of the Project both without and with the
additional dredging. The additional impacts associated with the expansion would not alter EPA's
determination that, if properly mitigated, the impacts from the overall Project will not cause or
contribute to significant degradation of waters of the U.S.
With regard to the mitigation measures associated with this additional work involving creation of
additional winter flounder spawning habitat and subtidaj habitat, although EPA is not presently
approving this additional work, it is important for all of the mitigation work to be conducted at the
same time to avoid adverse impacts that could result from creating some habitat initially and then
doing additional work at the same areas at a future date. If, before completion of the mitigation for
this Project as approved, the Commonwealth decides that it is not going to seek a modification of
the Final Determination to allow the additional dredging and so notifies EPA in writing, then it need
not provide the additional mitigation for impacts to winter flounder and subtidal habitat associated
with the expanded dredging.
( •
14 Pursuant to the Memorandum of Agreement entered into in 2005 between EPA and the Commonwealth of
Massachusetts, the State Enhanced Remedy work ends on or before the date EPA completes all Remedial Action
dredging at the New Bedford Harbor Superfund Site. See Administrative Record AR #509397.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 10
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Similarly, with respect to shellfish mitigation, it is acceptable for the Commonwealth to reduce the
amount of shellfish seed by the amount proportional to the area of expanded dredging that is not
being approved at this time. Of course, if such additional dredging is approved in the future, the
shellfish seeding would be required to increase accordingly.
Finally, given that EPA is not approving the additional dredging, it is also not approving the
additional CAD cell excavation. Therefore, the size of the CAD cell authorized under EPA's Final
Determination is 8.54 acres. As discussed above, the Commonwealth may seek a modification of
this Final Determination if additional information becomes available that would justify the need for
additional channel and quayside dredging, and it may also seek approval for disposal of the
additional channel and quayside dredging. We have evaluated the impacts of the Project both with
and without the larger CAD cell construction, and the additional temporary impacts from the larger
CAD cell would not alter EPA's determination that, if properly mitigated, the impacts from the
overall project will not cause or contribute to significant degradation of waters of the U.S.
See response to G.l.a.l of the Responsiveness Summary (Appendix Q) of this Final Determination
for further explanation of EPA's decision not to include the additional work at this time.
4. Other Changes , -
Air monitoring performance standards for total particulates, tiered action levels for total particulates,
and air monitoring station locations for upland work have been clarified in Appendix A-
Finally, in addition to consultation with Indian tribes conducted pursuant to the National Historic
Preservation Act, EPA has identified Executive Order 13175 "Consultation and Coordination with Indian
Tribal Governments" which identifies general consultation.requirements with tribal governments. See
Appendix P for a detailed discussion of these requirements and EPA's consultations with the affected
Indian tribes.
Overview of the Project and Major Components
The Project consists of construction of a 28.45 acre site, comprised of a 6.91 acre shoreline CDF adjacent
to 21.54 acres of existing upland property (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 development15, 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
15 See pages 29-33 of the Commonwealth's June 18, 2012 submittal for a detailed description of how the marine
terminal CDF will be used to support offshore renewable energy development.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 11
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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 all of
this clean material.
The major components of the Project are set out below:
• Construction of an 8.54 acre CAD cell between the Route 195 and Route 6 bridges to hold
navigational dredged contaminated sediment;
• Navigational dredging of up to approximately 801,400 cubic yards* of material in the waters of
New Bedford including:16
o Up to approximately 225,600 cubic yards of sediment contaminated with average PCB-
concentrations of less than 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 575,800 cubic yards of clean, glacial material below the removed
. contaminated sediment and use of this material as clean fill for the CDF and upland
ancillary properties, capping of existing borrow pit and CAD cell 1, for use in associated
mitigation projects, and offshore disposal;
• Construction of a 28.45 acre multi-purpose marine terminal (including ancillary properties)
including:
o Construction of a 6.91 acre CDF with a 1200 foot linear cofferdam bulkhead and a pier
supported apron;
o Placement of approximately 134,000 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, and investigation and remediation of ancillary
properties if necessary;
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 creation of two new mooring
areas;
• Capping of the CDF and adjacent 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 of 1.02 acres of salt marsh at River's End Park in New Bedford;
o Creation/enhancement of 4.47 acres of intertidal habitat;
o Creation/enhancement of 14.91 acres of shallow subtidal habitat; and
16 The 934,600 cubic yards presented in the Draft Determination included the additional potential work of dredging
up to 300 feet to extend the deep-draft berthing along the bulkhead wail, the 50 foot widening of the channel, and
associated increase In the size of CAD 3 to accommodate additional impacted dredged material for disposal.
However, as explained on page 10, EPA is not approving that additional work as part of this Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 12
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o Seeding of 24,542,803 shellfish over 10 to 15 years.
• implementation of an Activity and Use Limitation on the CDF and certain upland areas to protect
the remediated areas and to limit 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 Figure2 of the Commonwealth's Final Mitigation
Plan dated November 14, 2012 and is attached as Figure 1 to this Final Determination.
~The total 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 all 59,000 .
cubic yards of the federal channel maintenance dredging be required to accommodate vessels that
support the offshore wind industry). For a breakdown of these volumes, see Attachment S of the
Commonwealth's June 18, 2012 submission, revised on October 30, 2012 (MassDEP2012m), a copy of
which is attached to this document as Table 1.
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 primarily 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 realignment of the existing Gifford Street boat
ramp channel and the creation/enhancement of two adjacent recreational mooring areas. Potential
impacts from dredging on fishing vessels, cargo -type ships, and barges and small recreation and
commercial craft use of the Harbor and docking areas will be coordinated through local harbor officials
and with the Coast Guard. The Commonwealth anticipates a robust public outreach program including
regular public information meetings, mailings to announce upcoming events and availability of
documents and establishing a local repository for such documents.
For additional discussion of beneficial and detrimental public impacts, see section 9 of Appendix E and
Appendix M to this Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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RESOURCE IMPACTS
the proposed Project will impact wetlands and other waters of the U.S., flood plains, and aquatic life
(including substantial impacts on shellfish and winter flounder). Two paleosol17 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, also an endangered species, has been identified as potentially present in the
area; however, with appropriate mitigation measures, the Project is not likely to cause adverse effects
to the Atlantic sturgeon. Subtidat rock removal, if necessary, could be accomplished through a variety
of non blasting techniques which will generate a small amount of noise that would impact finfish.
Impacts to Wetland and Other Waters: The Project includes activities that would impact wetlands and
other waters of the U.S.; specifically, filling of 7.02 acres of intertidal and shallow, near-shore subtidal
habitat, salt marsh, and freshwater wetland areas and dredging of up to 47.16 acres of near-shore
subtidal and subtidal areas.18 In its Draft Determination, EPA specifically requested comments on these
impacts. Following a review of the public comments, EPA makes the following final determination with
respect to wetlands and other waters.
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 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.19 See Appendix E for full discussion of
impacts to wetlands and other waters.
Therefore, EPA has also determined that the proposed South Terminal Project is the least
environmentally damaging practicable alternative ("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 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
17 Typically former or "fossilized" soil preserved within a sequence of geological deposits that are indicative of past
conditions.
18 These amounts have changed slightly since the Draft Determination was issued.
19 Information regarding EPA's analysis of impacts under Section 10 of the Rivers and Harbors Act, 33 U.SX. §403
may be found in Appendix E. . '
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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compensatory mitigation. See Appendix E of this Final Determination for full discussion. EPA has also
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 determined that the
Commonwealth's mitigation plan will satisfy the federal requirements. See Appendix E of this Final
Determination for full discussion.
Floodplain Impacts: The Project involves filling 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 environment. In its Draft
Determination, EPA specifically requested comments on the Project's impacts on floodpfains. Following
a review of the public comments, EPA makes the following determination with respect to floodplains.
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. 1
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. EPA has
determined that, given other alternative locations and 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, and, as a condition of this Final Determination, must be completed within
one year of completion of the CDF. 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.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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Risk-based TSCA Determination; In its Draft Determination, EPA specifically requested comments on its
proposed TSCA Determinations. After considering all public comments, EPA makes the following final
determination with respect to TSCA requirements:
Consistent with Section 761.61(c) of the Toxic Substances Control Act (TSCA), based on information
provided by the Commonwealth, EPA has determined 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 Final
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, with this Final Determination, EPA is issuing a second modification to an existing TSCA
Determination that was previously issued on November 12, 2008, and modified on June 18, 2012, to
include dredging and disposal of PCB-contaminated sediment dredged from within the footprint of CAD
cell 3 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 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 Second Modification to the November 12, 2008 TSCA Determination are more fully
described within Appendix J(2).
State Enhanced Remedy Timeline20
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 ¦ _ .
20 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.Rov/nbh.
EPA Final Determination for the Proposed South Terminal Project"
New Bedford Harbor State Enhanced Remedy
Page 16
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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 Regulatory 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 111 work plans reviewed and Phase III work completed, including
construction of CAD 2 .
2010: New Bedford/Fairhaven Harbor Plan renewal approved; includes proposed navigation dredging
projects
January 2010: Commonwealth requested that EPA evaluate proposed South Terminal Project as part of
the SER
August 2010 - June 2012: EPA received significant Commonwealth submittals with information about '
the proposed Project
July 16, 2012: EPA issued a Draft Determination for the proposed South Terminal Project
July 16 to August 21: Public comment period and public hearing held for Proposed Project
August 2012 - November 2012: EPA received additional details from the Commonwealth about the
proposed Project
November 19, 2012: EPA issues this Final Determination that South Terminal Project is included in the .
State Enhanced Remedy for the New Bedford Harbor Superfund Site
Alternative Sites Evaluated
Included in EPA's Final 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.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 17
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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 Final Determination. ,
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 CERCIA 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...".2122
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 22), 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 Proposed Plan noted that the benefits of such a linkage would primarily stem from a streamlined
permitting process for navigational sediment disposal facilities23, 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 in the lower Harbor. Finally, the Plan noted
21 NCR §515(f)(l)(ii), 40 C.F.R. §300.515(f)(l)(ii). .
22 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 §30C.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.
23 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 Final Determination for the Proposed South Terminal Project Page 18
New Bedford Harbor State Enhanced Remedy
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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
CFR 300.515(f)(l)(ii) and complied with CERCLA and other dredging-related regulations.24 Since then,
two phases of SER work have been completed, Phase II and Phase III,25 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. The Commonwealth proposed to build 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
"24 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."
25 See Phase II and Phase III Work Plans in the Administrative Record for a description of that work. .
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 19
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requirements of the applicable or relevant and appropriate state and federal environmental laws that
would normally apply as part of a permitting process.26
!
EPA has compiled all of the documents it relied on to reach this Final Determination in the
Administration Record in support of this Project, which will be available at the New Bedford Public
Library, EPA New England Records Center and on line at www.epa.gov/nbh.
EPA's Final 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, and all public
comments received, and after completing consultations with all federal and state agencies, EPA has
determined that the Commonwealth's Project, which consists of constructing a 28.45 acre marine
terminal (consisting of 7.02 acres of filled waters (the CDF and the freshwater wetland on the upland
area) and approximately 21.54 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, 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 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 approving inclusion of the 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 the following conditions are met by the Commonwealth:
1. To ensure that no harm to the aquatic environment occurs as long as the actual site control
is uncertain, the Commonwealth must demonstrate full site control before it commences
any work in waters of the U.S.
2. Although upland parcels are not subject to Superfund remediation, because this Project is
authorized as part of the State Enhanced Remedy, the Commonwealth must pursue due
diligence by conducting further investigations on any parcel where a Finding or Recognized
26 As indicated above, this Final 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 5. However, in analyzing the Commonwealth's Project as a whole,
including CAD cell 3, EPA did consider the additional dredging and filling to be performed in order to construct the
proposed CAD.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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Environmental Condition (REC )27 was noted in the 21E assessments, and that remediation, if
contamination is found, occur in accordance with 21F and with EPA'sTSCA program if PCBs
are found.
3. All currently paved parcels and all parcels used as transportation corridors, as depicted in
Figure 4 to this Final Determination, must remain paved, maintained and monitored as long
as these parcels are used as part of the New Bedford Marine Commerce Terminal.
4. For work conducted on the excluded area of Map 31, Parcel 288, the vacant Shuster parcel,
as identified on Attachment 5 to Appendix J(l), the following shall apply:
a. If the Commonwealth is capable of obtaining temporary ownership of this excluded
area: The Commonwealth will retain ownership and/or site control until such time as
the Commonwealth has completed work within the excluded area. Material excavated
from within this excluded area will be moved to the area of the TSCA Determination and
will be used as backfill within the TSCA Determination area. (See Attachment 5 of
Appendix J(l) for the location of the TSCA Determination area.) Clean fill will be
imported from offsite and utilized to backfill the excluded area. Prior to excavation of
this area, sampling will be conducted to determine the presence of contamination,
including PCBs in this area. PCB-contaminated soils with > 25 ppm will be removed and
disposed of at a TSCA-approved disposal facility or a RCRA hazardous waste landfill in
accordance with § 761.61(a)(5)(i)(8)(2)(//7). Hazardous waste and PCB-contaminated
soils with > 1 ppm but < 25 ppm shall be relocated to the main facility parcel for
consolidation beneath the final clean cap; or
b. If the excluded area remains privately owned: The Commonwealth shall sample the
soil in this area prior to excavation or alternatively, this soil shall be excavated and
disposed of off-site as a > 50 ppm PCB waste at a TSCA-approved disposal facility or a
RCRA hazardous waste landfill in accordance with § 761.61{a)(5)(i)(B)(2)(//7). If sampling
is conducted, in the event that PCB concentrations are > 1 ppm and/or hazardous waste
is identified, the soil shall be disposed of off-site at an appropriate disposal .facility. Soil
with PCB concentrations < 1 ppm and that do not contain hazardous waste may be
backfilled into the excluded area along with any imported clean fill as necessary to
restore to the final grade.
5. In the event any work is planned in the area of the former dwellings in the former Acushnet
Mills company housing area depicted on Attachment 1 of Appendix G, prior to any ground
27 In its Phase 1 Environmental Site Assessment (ESA), dated January 3,2012, the Commonwealth states, "As
defined by ASTM standards, the terms "RECs" or "Recognized Environmental Conditions" mean the presence or
likely presence of any hazardous substances or petroleum products on a property under conditions that indicate
an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum
products even under conditions in compliance with the laws." It also states, "Issues of concern may also be
identified in this report as a "Finding". Findings are issues identified during the performance of the Phase I ESA
that may be a REC under certain circumstances or that may require some level of follow-up actions which are
beyond the scope of this Phase 1 ESA." Commonwealth submission MassDEP2Q12f.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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disturbance of more than 12 inches, a Phase IB archeological survey of the area is
submitted to EPA for review and approval,
6. In the event that new environmental conditions are identified during remedial or other land
excavation activities, the Commonwealth shall report the new conditions to EPA and
identify what, if any, modifications are necessary to the air monitoring plan and/or remedial
plan. Modification to or a new TSCA Determination may also be necessary.
7. All the conditions contained in Appendix E to this Final Determination.
8. Compliance with all applicable and relevant and appropriate requirements is maintained
including the following:
a. Completion of the Marsh Island mitigation project to compensate for flood storage
loss within one year of completion of the CDF;
b. 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 Construction
General Permit (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.
9. The following workplans are provided to EPA for review and approval at least thirty (30) days
before land or water activities take place:28 .
a. A characterization, removal, and disposal work plan (Soil and Sediment Work Plan)
for both soil and sediment that will remain in-place or that will be excavated during
mitigation activities at River's End Park. The Plan shall detail the procedures that
will be employed for characterization of soil and sediment within the mitigation
area. This Plan shall also include information on the required criteria for either
leaving soil/sediment in-place, and/or for removal, storage, handling, and disposal
to meet all applicable or relevant and appropriate state and federal standards;
b. A Phase IV work plan for dredging and disposal of sediment;
c. 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;
d. A Contingency Plan as required by the Water Quality Performance Standards in
Appendix C;
e. An air monitoring plan that meets minimum requirements in Appendix A;
28 EPA acknowledges it has received, among others, Phase IV work plans, a Construction Management Plan, and an
Air Monitoring Plan. As stated on page 3, EPA is not reviewing these plans as part of this Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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f, A Contractor work plan for the PCB remediation work of the upland area within the
TSCA Determination area shown on Attachment 5 to Appendix J (1). Any additional
PCB remediation work in areas beyond those shown on Attachment 8 to Appendix
J( 1) will require review by EPA and may result in an issuance of a new or revised
TSCA Determination; and
g. If it occurs, a work plan for Federal channel dredging.
This Final 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 Final Determination and potentially reissue it for public comment. .
Description of Proposed Location
A description of the 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 will construct 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
City of New Bedford and into 17,000 adjacent acres of Buzzards Bay.
(Mew 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.
EPA Final Determination for the Proposed South Terminal Project Page 23
New Bedford Harbor State Enhanced Remedy . .
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Project Location - New Bedford Harbor Contamination29
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.
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 ("ICE"), 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 Final 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 lower 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 F'CB 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.
29 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 Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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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 250,000 cubic yards of contaminated sediment have been dredged.
Project Location - South Terminal Area
General Area Description: The 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 28.45 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 interface of Waterfront Industrial and
"Industrial B" zoning districts. The main portion of the facility where heavy and light loading will occur
would be comprised of approximately 11.1 contiguous acres of existing upland and 6.91 acres of
additional |and created by construction of a CDF in adjacent waters. An additional 10.4 acres of ancillary
upland west and south of the main portion would be used for wind blade lay-down and as
transportation corridors. See Figure 4.30 The parcels of existing upland that would comprise the
terminal facility and ancillary properties are owned by the New Bedford Redevelopment Authority, the
City of New Bedford, 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.31 A TV/radio tower on one ancillary property west
of the main terminal facility property will be relocated; there is no need to relocate any water
dependent users. Several properties will serve as a transportation corridor to provide access to ancillary
properties for storage. With the exception of the Radio Tower property, the upland parcels are
currently 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
terminal (identified as "Main Facility" on Figure 4) consists of approximately 18 acres, with
approximately seven acres of the 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
30 When the Draft Determination issued, the Commonwealth was considering two different configurations. Figure
4 is slightly different from configuration A in the Draft Determination..
31 As previously stated in condition No. 1 of this Final Determination, the Commonwealth must demonstrate full
site control before it commences any work in waters of the U.S.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
T"» «"* l-»
Page 25
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is within the footprint of the proposed marine terminal. Parcels included in the main terminal facility
that were also part of the Potomska Mills complex are identified as map 31, parcel 263 (Shuster,parcel),
map 31, parcel 288 (vacant Shuster parcel), map 25A, parcel 53 (north DMF parcel), parcel 49 (south
DMF parcel) and parcel 48 (coastal area parcel). (See Figure 4 of the 21E Phase 1 Environmental Site
Assessment (Phase I ESA), submitted by the Commonwealth on October 1, 2012). 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 (0.11 acre) which is degraded. There are no local water supply wells or reservoirs located
within the Project area.
Soil and groundwater sampling was conducted as part of a 21E Phase 1 ESA for the main facility upland
area.32 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 6W-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 rf suits.33
In addition, within a portion of this upland area (south DMF parcel) 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. •
Ancillary Properties: The ancillary properties consist of approximately 10.4 acres located west and south
of the main facility properties. Three of the properties will be used for equipment storage and wind
blade laydown areas; the remainder will be used as transportation corridors to access the larger storage
and laydown areas. The Commonwealth has indicated it will either acquire full ownership or an
easement for these corridors; it is currently engaged in negotiations to acquire the necessary property
interestsfor these and the remaining ancillary properties. Most of the areas to be used for
transportation corridors are already paved as are parcel 7 on Map 25A (an ancillary blade laydown area)
32 See the Commonwealth's January 18, 2012 submission. 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 Final
Determination.
33 The Commonwealth confirmed that the Phase 1 ESA dated January 3, 2012 (MassDEP2012f) included the same
information as was provided in the Commonwealth's January 18, 2012 submission for the Shuster parcel, the
vacant Shuster parcel, both north and south DMF parcels and the coastal area parcel. See MassDEP2012l.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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and parcel 263 on map 31 (part of the main facility but subject to lighter loading). Currently, lot 7 is
used by Bayline Boat Yard (under lease with the City of New Bedford) for boat storage and access to the
Gifford Street Boat Ramp.
The Commonwealth provided EPA with Phase I ESAs on a subset of these ancillary properties;
specifically, map 25A, parcel 7 (NS Gifford Street), parcel 30 (Hathaway Mills) and parcel 45 (the former
Dartmouth Finishing site), and Map 31, parcel 234 (Radio Tower).34 Except for the area on the Hathaway
Mills parcel, assessments were not performed on the transportation corridor properties. Further, no
sampling was performed on the parcels identified below as part of the Phase 1 ESA; however, the
following information was provided:
With regard to the Hathaway Mills parcel; Privately owned, this parcel contains the former Hathaway
Mills building and is occupied by multiple small companies. The northeastern portion of the property
(north of the Former Dartmouth Finishing Site) contained storage buildings connected with the original
mill which were demolished between 1995 and 2009. This area is now vacant, with a large pile of
building rubble, including boulders, concrete and ash-like material. This part of the parcel is targeted for
use as a transportation corridor for this Project. A state 21E cleanup was conducted in 2001 on this
parcel to address petroleum hydrocarbons and PAHs in soil. Although the cleanup was completed,
impacts from contamination may still remain and could impact offsite disposal when work is conducted
on this property. '
With regard to the former Dartmouth Mills parcel: Owned by the City of New Bedford, the parcel is
vacant, overgrown with vegetation, and contains piles of rubble. The former mill buildings were
demolished between 1995 and 2007; however, the basement floor slab and foundation walls of a
former boiler room remain on the western portion of the property. This parcel was also subject to past
federal and state remediation in 2004 to empty and remove drums and two underground storage tanks,
one aboveground storage tank (AST) and four vats. A subsequent Phase 1 ESA was completed in 2010
which identified conditions that led to a Phase II Comprehensive Site Assessment in June 2011.
Contamination found beneath the concrete slab in soil (petroleum, lead and semi-volatile organic
compounds (SVOCs) and metals) and groundwater (silver) was detected above applicable state reporting
limits as was contamination found in the stockpiled soil staged above the slab. The Commonwealth
represented that it is aware that some contaminants (particularly lead) have been detected in soil in
concentrations exceeding the RCRA 20 times rule (i.e. concentrations of 100 mg/kg or greater, which is 5
times the TCLP limit of 5 mg/L) and that it is unaware of any TCLP tests that have been completed on
this material to date and that lead was not found in groundwater.35
With regard to the Radio Tower parcel: Privately owned, the parcel contains a 580 foot vertical
radio/television transmitter, a storage or utility building and an electric transformer mounted on a
concrete pad surrounded by security fencing. The tower transmits for three radio stations. The
Commonwealth has indicated it will relocate these structures so that this area can be used for
equipment storage and blade laydown area. The surrounding area outside of the security fence is a
34 This Phase 1 ESA also included other properties. See footnote 33.
35 See MassDEP2012l. :
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 27
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maintained grass area; areas to the east are heavily wooded with small trees and shrubs. The parcel
appears to have been part of the the Potomska Mills complex along with most of the parcels that
comprise the main terminal facility. According to the Phase I ESA, the mills used coal to fire a series of
on-site steam boilers as well as oil fired engines. Coal appears to have been stored in a large bin located
on this parcel. While RECs were not identified on the parcel, there were issues identified as Findings as a
result of the former textile mill activities. These include the potential for contamination from metals,
volatile organic compounds and petroleum hydrocarbons and bulk asbestos in soil from demolition
activities (although bulk asbestos was not detected in subsurface investigations at the adjacent
property). In addition, according to the Phase 1 ESA, based on the high concentrations (over 900
mg/kg) of PCBs detected in soil at the adjacent parcel (which may or may not be associated with
industrial activity at the former Potomska Mills complex) and that the property boundary between the
two parcels is not clearly marked and relatively undeveloped, PCBs may also be present on this parcel.
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 area.36 No federal resource areas or state protected wetland resources are present
within the ancillary properties. A final resource area location map is included as Figure 5 in
MassDEP2012 r and is included in this document as Figure 5.
The Project is located within the 100-year floodplain and in a non-attainment area for ground level
ozone. In addition, the 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 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 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
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
the upland portions of the CDF; however, although work is not currently anticipated in the Acushnet
Mills company housing area, if it does occur, prior to any ground disturbance of more than 12 inches, a
Phase IB archeological survey must be conducted to test for the presence of intact archeological feature
and deposits associated with the former dwellings in this area. See Appendix 42 of the 1/18/2012 for a
summary of the archeological investigations arid map in Appendix 43; see also MassDEP20123 and
Attachment 1 of Appendix G for the location of the Acushnet Mills company housing area.
36 Additionally there is a 0.106 acre wetland on the upland portion of the site that will be filled.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 28
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Description of Proposed Work
Construction of CAD Cell 3 -
An 8.54 acre CAD cell 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").37 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 I.38) 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, (as well as portions of the
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 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 cover on the Main Facility and on one of the ancillary
properties, the former Dartmouth Mill parcel, and 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 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. ' * .•.'•••
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 in the CAD cells, although some passive
dewatering will occur during material handling and transport. The scows will be properly located over
37 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.
38 Construction of CAD cells-1 and 2 and associated dredging were completed as part of the State Enhanced
Remedy, Phases II and HI. See SER Phase II and SER Phase III workplansfora 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 Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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the CAD cell arid 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 Water Quality Performance Standards
in Appendix C and Significant Substantive Requirements discussion below.
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 Final Determination).
The CAD cells will be capped in the same manner as described above using clean, suitable material of
sufficient thickness to 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 (generally less than 50 ppm
PCBs) and clean sand, is necessary to both widen and deepen the approach to the proposed terminal
from the existing federal channel and turning basin, and to widen and deepen an area along the
bulkhead of the CDF to allow deep water vessels, approximately up to 90 feet wide and 500 feet long,
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 befow the harbor bottom within the dredge footprint, primarily along the
northern portion of the eastern face of the CDF bulkhead wall. This shallow rock must be removed. The
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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Commonwealth anticipates conventional removal of this rock with standard excavating equipment;
however, although EPA is not approving blasting as part of this Final Determination, the Commonwealth
may seek, in the future, to modify this Determination to allow blasting. (See discussion at page 9.) As a
result, impacts associated with standard rock removal techniques have been included in EPA's
evaluation of this Project,
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 3, 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. All depths below are expressed in feet.
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 seafloor under the piling area
with a rip-rap type material for structural integrity and to prevent erosion of the area under the pile-
supported apron.
Quayside area 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, and
remainder of 600 feet dredged to -20 down to -14 MLLW, moving south.39
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.40
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
39 The Commonwealth requested that additional deep draft dredging occur along either the northern or southern
portion of the northern end of the sheet pile wall to accommodate the potential for use of the facility by larger
vessels; however, EPA is not approving this additional work in this Final Determination. See discussion at page 10.
40 The Commonwealth also requested widening of this channel to accommodate the potential for larger vessels to
use the terminal. As discussed on page 10, EPA is not approving this additional work in this Final Determination.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
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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
depth of-30 to -32 MLLW, depending on the location {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 cell 3. Clean navigational dredged sand will be used
as fill within proposed CDF, on the main facility area and on one ancillary property, the former
Dartmouth Finishing site, for CAD capping, mitigation habitat creation and capping, and 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 Water Quality Performance Standards
in Appendix C and Significant Substantive Requirements discussion below.
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.41
The 28.45 acre marine terminal site consists of a 6.91 acre CDF, approximately 11.1 acres of adjacent
upland, and approximately 10.4 acres of ancillary properties (see Figure 4 for full description of
41 See p. 18-19 of the Commonwealth's June 18, 2012 submittal for additional criteria.
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acreage). The Commonwealth anticipates that ancillary properties will primarily be used as
transportation corridors and for wind blade storage when the CDF is used to support renewable energy.
To create the marine terminal facility, an existing sheet pile wall in the northern portion of the south
terminal area (the Shuster property) will be extended approximately 1000 linear feet 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 an 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 erosion and to provide structural
integrity: 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.
Construction of the CDF includes filling of a portion of the existing navigation channel to the adjacent
Gifford Street Boat Ramp. The Gifford Street channel will'be realigned and two new mooring areas will
be created.
Upland 21E remediation: As stated above, sampling conducted as part of the 21E process on the
approximately 11.1 acres of the upland area that will be incorporated into the main facility portion of
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,
except for the already paved portion of the Shuster property, 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 remediation performed at this upland area must be conducted consistent with EPA's TSCA
Determination attached to this Final Determination as Appendix J(l), This area will not be addressed as
part of the New Bedford Harbor Superfund Site or under any CERCLA authority.42 The Commonwealth
42 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 ("AOC") (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,
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anticipates excavating down to the high water mark 10.1 acres of this main facility upland area,
including the existing asphalt cap area on the DMF south parcel that was the subject of a past 21E
remediation, and stockpiling the material onsite.43 Soils with PCB concentrations exceeding 25 ppm will
be trucked offsite to a licensed TSCA disposal facility or RCRA hazardous waste landfill. The remaining
soil will be evaluated for its structural stability to support the heavy loads 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 main facility portion of the terminal, including the CDF, along with an Activity and Use
Limitation (AUL) on the covered area.44 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. (See the Commonwealth's
response to USEPA June 23, 2012 TSCA-Related Questions for additional details.)
In addition, although not included in the upland property for the marine terminal facility, a small portion
of the vacant Shuster property {the excluded portion) must be excavated and evaluated for its structural
integrity to support the surrounding soil that is included in the main facility area and which will incur
heavy loads. (See Attachment 5 of Appendix J(l) for location of this excluded portion of the vacant
Shuster parcel.) Because this area was not sampled as part of the Commonwealth's Phase 1 ESA and
because contamination was found on other parts of the vacant Shuster property, EPA has conditioned
its approval, depending on ownership of the excluded area and the levels of contamination found if
sampling is performed, on either offsite disposal of the material at an appropriate disposal facility,
consolidation as part of the remediation on the main terminal facility, or backfilled back into the
excavated area if sampling shows the material is not contaminated. See EPA condition No. 4 in this
document on page 21.
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
including requirements for an impermeable cover (to prevent leaching) were relevant and appropriate (c. 2iE 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).
43 See Figure 4 for location of existing asphalt cap on the DMF south parcel.
44 The Commonwealth will conduct these activities in accordance with the guidance document issued by MassDEP which
indicates that, so long as the soils are being re-graded onsite, will not be treated ex-situ or otherwise placed into containers,
tanks or a treatment or RCRA regulated unit, and will remain within the defined Area of Contamination (AOC) onsite, these soils
will not be "generated", exemptingthem from the Land Disposal Regulations, which will allow them to be managed under the
MCP and TSCA alone. For more details on the interface between RCRA and the MCP in the Commonwealth, please refer to
"MassDEP Technical Update August 2010: Considerations for Managing Contaminated Soil: RCRA Land Disposal Restrictions and
Contained-ln Determinations", attached as Attachment C to the Commonwealth's June 25, 2012 submission to EPA.
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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 Final ¦>
Determination). Small portions of the 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 Figure 4 will require some work in order to make them viable for use
of the marine terminal to support the wind industry. These, properties will be used as transportation
corridors and as laydown areas mainly for component storage for wind industry equipment, not for
heavy loading activities. For future use to support cargo shipping, the Commonwealth represents that
these ancillary parcels will still be considered part of the overall marine terminal but will have different
uses than the main facility given the various load bearing capacities of the various parcels.45 Although
upland parcels are not subject to Superfund remediation, because this Project is authorized as part of
the State Enhanced Remedy, EPA is conditioning its approval on the Commonwealth's pursuit of due
diligence by conducting further investigations on any parcel where a Finding or REC was noted in the
Phase 1 ESA, and that remediation, if contamination is found, occur in accordance with 21E and with
EPA's TSCA program if PCBs are found. This includes the Radio Tower parcel, the Hathaway parcel and
the former Dartmouth Finishing site parcel.
The transportation corridor includes 5 parcels. On four of the five parcels the Commonwealth wilt
obtain easements only, not full fee ownership. These parcels are identified as map 21, parcel 30 and
map 25A, parcels 5,45, and 47. The Commonwealth will be obtaining ownership of the Blackmer Street
extension from the City of New Bedford but will be making no changes to that parcel and expects it will
continue to serve as a public way {this area is currently paved and contains city-operated utilities). The
Commonwealth will pave these areas (if not already paved) and will maintain and monitor these paved
areas (MassDEP2012h). The fifth parcel, the Hathaway parcel, contains an existing debris pile which
must be moved. Should the owner wish the Commonwealth to remove the material itself, the
Commonwealth will collect samples of the debris piles to characterize the material for disposal prior to
disposal of the material offsite.
One property contains an existing overhead restriction in the form of a radio tower (Map 31, Parcel 234,
the Radio Tower parcel). The Commonwealth anticipates relocating the radio tower and purchasing
offsite fill to grade the parcel.
With regard to the former Dartmouth Finishing site, the Commonwealth plans to re-grade the existing
material on the parcel, cap the area with clean dredge material from the boat basin or channel dredging
45 See footnote 1 of MassDEP2012l,
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then, cover the area with a one foot layer of Dense Graded Aggregate. A total of three feet of clean
material will be placed over any existing material that is being re graded at this site.
The existing soil piles on the Dartmouth Finishing site are currently anticipated to be incorporated into
the re-grading efforts. Similar to the main facility upland remediation, the Commonwealth will conduct
activities on this parcel in accordance with the guidance document issued by MassDEP. (See footnotes
42 and 44.) Consistent with MCP standard practices, the Commonwealth plans to manage
lead-impacted soils onsite through the re-grading of onsite soils; implementation of a 3-foot thick cap of
granular material; and a deed restriction that will minimize direct contact with that material via an
Activity and Use Limitation. This remedy will be assessed for its potential and future risk to current and
future receptors via a Method 3 Risk Assessment, which will be completed prior to closure of the site. If
any significant unanticipated risk to future receptors is identified during the Method 3 Risk Assessment,
consistent with MCP standard practices, the proposed remedy will be re evaluated. The Commonwealth
understands that if PCBs are identified on this property in the future, that another TSCA determination
may be required.
Performance Standards
Below is a summary of the significant performance standards for the Project. Details and additional
standards can be found in the Appendices of the Final Determination.
Water Quality
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 all dredging, filling, capping, and rock
removal activities. Silt curtains and absorbent booms will be required at all times around any mitigation
filling and capping activities and any filling associated with CDF construction unless that area is
completely enclosed by the bulkhead walls, silt curtains, or a combination of the two. Silt curtains and
absorbent booms will also be required for dredging, any other filling and capping activities, and rock
removal activities from January 15 through June 15 unless otherwise directed in the water quality
performance standards. Final water quality turbidity levels and performance standards, which
represent the minimum actions that must be taken, are attached as Appendix C. Should these turbidity
levels be exceeded, engineering controls that, at a minimum, will include the use of additional silt
curtains and absorbent booms will be implemented. During the period of January 15 to June 15 of any
year, if turbidity levels are still exceeded, the work will stop until June 16, unless the Commonwealth can
demonstrate to the satisfaction of EPA that it has instituted measures sufficient to reestablish
compliance.
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Mitigation measures, ¦
Certain performance standards are incorporated into the Project to protect the Atlantic sturgeon and
other aquatic life. A fish deterrent program has been created and will be implemented during dredging
and other marine construction work that occur in shallow waters (<5 MLLW) during winter flounder
spawning months (January 15 through June 15). This includes a series of engineered barriers that will be
placed to exclude fish from entering these work areas where dredging and other marine construction
activities occur. The barriers will redirect, but not otherwise limit vessel traffic in the area of work. The
three types of barriers to be erected are a fish weir, silt curtains and.a bubble barrier. A weekly
monitoring program including the use of a sonar fish finder and a towed video system will ensure the
barriers are maintained and effectively working to exclude fish from marine work areas. In the event
fish are found in the marine work areas, a fish startle system consisting of the use of light, sound and
tactile systems will be implemented. See Attachment 1 to Appendix C for details of this fish deterrent
program. In addition, an environmental bucket will be used to dredge the fine grained sediment that
lies above the coarser, clean parent material to minimize water quality impacts from dredging.
Although blasting is not within the scope of this Final Determination, pile driving and rock removal-
activities will occur during construction of the marine terminal. To minimize noise and wave pressure
impacts from these activities on Atlantic sturgeon and other finfish, sheet piling will be installed through
the use of vibratory hammers, and drilling and grouting measures, which do not create noise impacts,
will be used for pile installation outside the sheet pile walls. Pilings constructed inside the sheet pile
wall are considered an upland activity that will not impact fishery resources and will be vibrated or
driven in. (For a more detailed description of these activities, see Appendix H and the Commonwealth's
letter to EPA dated October 4, 2012), Rock removal will be accomplished through conventional non-
blasting techniques, described in Appendix H.
Air Monitoring
An air monitoring program will 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 for review and
approve. At a minimum, four air monitoring stations will be established around each contiguous land-
based construction area with daily measurements of particulate matter, unless otherwise approved by
EPA. 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.
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Archeological Resources
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 wiil take place within
100 feet of this area without a temporary excavation support {anticipated to be in the form of sheet
piling to support the paleosois.)
Best Management Practices
Best management practices will be used during construction of the 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 CDF 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.46
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. Any PCB-contaminated stockpile soil shall be managed in
accordance with TSCA § 761.65(c)(9), including covering, berming, and marking.
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.
In general, stormwater will be rerouted around the construction area using swales, diversions,
checkdams and temporary sediment basins. Sediment and erosion 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.
46 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.
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New Bedford Harbor State Enhanced Remedy
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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 concentrations greater than 1 ppm. 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 required for use
of the CDF.
Mitigation Measures
To compensate for impacts caused to resource areas, the Commonwealth is required to implement
mitigation measures, a summary of which is provided below. See Appendices E and H for more detailed
discussion of these mitigation measures.
1. Addition of clean sand to existing Superfund pilot cap located south of hurricane barrier to
create or enhance 19.38 acres of aquatic;
2. Creation of 22.73 acres of winter flounder habitat in the Outer Harbor;
3. Reseeding of 24,542,803 shellfish over 10-15 years; and
4. Creation of 1.02 acre salt marsh at River's End Park.
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 clean sand from
navigational dredging into an area outside the Harbor, adjacent to the hurricane barrier between the
barrier and the existing Superfund pilot cap47. This mitigation will create intertidal and subtidal areas
with clean sand generated from dredging activities while simultaneously capping and isolating
sediments with less than 10 ppm 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 Appendix 1 of the Commonwealth's November 14, 2012 Final Mitigation Plan for
engineering plans for this area.
Creation of 22.73 acres of winter flounder habitat in Outer Harbor:48 This measure consists of creating
22,73 acres of winter flounder habitat in an area just south of the hurricane barrier, west of the Federal
47 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.
48 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
EPA Final Determination for the Proposed South Terminal Project
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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. The
sediments in the 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
placed in this area to raise the bottom elevation from -20 MLLW to a depth of approximately -16.4
MLLW, a depth more amendable to winter flounder spawning activities. 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.
Seeding of 24,542.803 shellfish over 10 -15 years: A quahog seeding program will be conducted in
open shellfishing areas south of the hurricane barrier. The Commonwealth will seed 24,542,803 clams
to offset the expected loss of 9,817,121 shellfish, subject to two potential modifications discussed
below. The quahog seeding will occur in several locations in New Bedford waters. Due primarily to the
availability of seed, this replacement will take place over a 10-15 year time period. This shellfish
mitigation plan may be modified in the future in two possible ways. The first potential modification of
this shellfish mitigation plan relates to the NMFS's desire for the Commonwealth to include oysters as
part of this mitigation effort. Accordingly, the Commonwealth has proposed to include oysters as part
of this mitigation plan representing somewhere between 10-20% of the total shellfish seed to be
planted. The Commonwealth has not yet developed an oyster reef mitigation plan so EPA cannot
approve this mitigation component at this time. The Commonwealth can submit an oyster reef plan to
EPA for approval and ask for an amendment to the Final Determination. The second potential
modification relates to the Commonwealth's request to adjust the number of shellfish to be seeded if
the full extent of the dredging as described in the Commonwealth's June 18, 2012 submission (MassDEP
2012a) is reduced. In that event, the Commonwealth would recalculate the expected shellfish impacts
from a smaller dredge footprint and then size the mitigation effort accordingly. This approach is
acceptable to EPA, provided that the Commonwealth provides EPA with information to document the
reduction in impact and the planned reduction in mitigation and obtains EPA's written approval.
Because EPA is not, at this time, authorizing expansion of the deep-draft quayside dredging area and
additional widening of the deep-draft channel, the Commonwealth may calculate the related reduction
in shellfish loss and obtain EPA's approval of an equivalent reduction.
Creation of 1,02 acre Salt Marsh at River's End Park: Approximately 1.02 acres of salt marsh will be
created at the Rivers End Park Mitigation Site, located on the Acushnet River, to the north of the Wood
Street Bridge in New Bedford, Massachusetts. This salt marsh creation is intended to compensate for
and deepening of the deep draft channel. As discussed at page 10, while EPA is not approving the additional
dredging at this time, if, in the future, facts change that could justify additional dredging, the Commonwealth, up
to the date of the State Enhanced Remedy work ends, may seek a modification of this Final Determination if
additional information becomes available that would justify the need for dredging of deep draft berthing area or
justify the additional dredging to widen the navigational channel beyond 175 feet.
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the functions and values associated with the 0.11 acres of salt marsh and 0.11 acres of freshwater
wetlands that will be lost when they are filled during construction of the Project.
CERCLA Requirements
The Project complies with CERCLA § 121:
The Project is Protective of Human Health and the Environment
As described more completely in Sections V and VI of the 1998 ROD, EPA found 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 225,600 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 residences49). The great majority of PCB
concentrations in sediment in the Project area are below 50 ppm. Dredging will also remove heavy
metals in sediment that are co-located with PCBs. Mitigation capping measures will address additional
sediment contamination south of the New Bedford/Fairhaven Hurricane Barrier that may not otherwise
be addressed through the Superfund remediation. These actions enhance the 1998 ROD by further
reducing the likelihood of 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 offish. 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 likely would not otherwise be addressed in the forseeable future if this Project did
not occur. PCBs greater than 25 ppm in soil and certain soils with extractable and total petroleum
hydrocarbons will be excavated and disposed offsite; remaining contaminants will be capped with a
state and TSCA-compliant engineered barrier to prevent direct contact with remaining contamination.
Ancillary properties will also be subject to 21E requirements and if necessary, remediated pursuant to
21E and TSCA; additional TSCA Determinations also may be necessary.
Both the CADs and the upland caps will remain protective through long-term operation and monitoring
requirements, and through land use and navigational restrictions as necessary.
49 The 1998 ROD also includes a cleanup level of 10 ppm for the upper harbor subtidal and mudflat sediment.
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The Project Utilizes Permanent Solutions and Alternative Treatment or Resource Recovery
Technologies to the Maximum Extent Practicable
The Project provides a permanent solution to the widespread arid persistent PCB contamination in the
lower harbor sediment. CADs (and the CDF to the extent any remaining sediment after dredging the
CDF footprint is contaminated) permanently isolate these contaminated sediment from human and
environmental receptors by containing them in perpetuity using a safe and protective technology.50
The Project Does not Satisfy the Preference for Treatment as a Principal Element
The 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 the sediment 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 Project, treatment would likely add significant cost to this project without added
protectiveness.51
The Project is Cost Effective
The Commonwealth has not provided cost information that would enable EPA to analyze the cost-
effectiveness of this particular Project; however, no Superfund money will be used to finance the
Project.
The Project Attains ARARS
A detailed discussion of how this Project complies with ARARs follows below.
50 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.
51 As part of the Superfund remediation, 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.. .
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Significant Substantive Requirements
Because EPA has integrated the State Enhanced Remedy into the 1998 ROD, this Project must comply
with §121{d) of CERCLA52 and §300.450 of the NCP which requires the work to meet the substantive
requirements of all applicable or relevant and appropriate regulations (ARARs).53 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.54 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 site risk assessment and may be
used in determining the necessary level of cleanup for protection of health or the environment.55
Tables reflecting the federal substantive requirements for this Project are presented in Table 2 of this :
Final 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 Final Determination as
Appendix D,
52 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
contaminants released into the environment and of control of further release at a minimum which assures
protection of human health and the environment."
'^Section 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 federa! 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.
54 CERCLA Compliance with Other Laws Manual: Interim Final, OSWER/EPA/540/G-89/006 (August 1988), p, 1-10.
55 .
• id. at p. xiv.
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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)
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
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. EPA has
determined that the Project as approved in this Final Determination, 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 Final Determination.
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 South Terminal Project and has determined that the Project, as approved in this
Final Determination, is not contrary to the overall public interest.
For a more detailed discussion, see Appendix E to this Final 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)(l5); 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, conducted as part of the State Enhanced
Remedy, will be 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 Terminal (January
18,2012), EPA has concluded that if the construction operations and storm water management
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measures are undertaken as described, the storm water discharges should meet the terms of the CGP.
This 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 oh 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 Final 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.
National Historic Preservation Act, 16 U.5.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 a determination in this matter is considered a Federal
undertaking, EPA is required, after consultation, to determine whether the undertaking could have an
effect on historic properties in advance of the subtidal and intertidal issuing the Final Determination.
Two paleosol areas were found in 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 SHPO and consulting parties, the footprint of the proposed CDF was altered to avoid
impacts to 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 proposed
redesign. In addition, the Project planners will take several additional actions to protect the paleosol
areas from the inadvertent impacts.
The Commonwealth and Tribes have also agreed that the Tribes will be provided with the opportunity to
monitor construction activities, and that a suitably trained archeologist will be on board dredging vessels
to monitor ground disturbing activities. Unanticipated historic properties discovered during
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implementation of the Project must be treated in accordance with the provisions contained in 36 CFR §
800.12 and 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.
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.
A 2010 assessment of the original 12 acre upland area 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 21.54 acres to allow for additional lay down space. Because of this expansion,
the Commonwealth conducted a second assessment, Cultural Resources and Background Study and
Archeological Sensitivity Assessment, in September 2012. The September 2012 assessment, which
included the June 2010 study area, confirms the findings of the June 2010 assessment and concluded
that no additional cultural resources background research or archeological sub-surface investigation is
necessary in the expanded upland study area. However, as a condition of this Final Determination, a
Phase B1 survey must be performed and submitted to EPA for review and approval before any ,
contemplated ground disturbance of more than 12 inches in the Acushnet Mills housing company
portion of the upland area is undertaken. (See Attachment 1 to Appendix G for the location of this
sensitive area.) "
EPA has reviewed ali of the archeological investigations concerning the areas projected to be impacted
by the Project and considered the input of the SHPO and consulting parties including the MBUAR,
Wampanoag Tribe of Gay Head (Aquinnah), and Mashpee Wampanoag Tribe. In light of the
investigations, project design modification, determinations and conditions discussed above, EPA has
found that the Project will not affect historic properties. EPA notified the SHPO and consulting parties
of its no affect finding on September 28, 2012. The SHPO concurred with this finding on October 16,
2012. Because the consulting parties did not object within 30 days of receipt of this finding and the
SHPO concurred, EPA may proceed with its Final Determination.
For a more detailed discussion, see Appendix G to this Final Determination.
t
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.
EPA consulted with NMFS on this Project. Following issuance of EPA's Draft Determination, NMFS
provided conservation recommendations to EPA on August 21, 2012, which led to several meetings
EPA Final Determination for the Proposed South Terminal Project Page 46
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among EPA, NMFS, and the Commonwealth to discuss measures that could be taken to address NMFS's
concerns. EPA completed consultation on October 30, 2012, by providing responses to NFS's
recommendations, including identification of additional steps that the Commonwealth would be
required to take to protect EFH.
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, installation of absorbent booms and silt
curtains, and other measures 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 salt marsh,
intertidal habitat, winter flounder spawning (shallow subtidal) habitat, and deeper subtidal habitat. The
Commonwealth will also conduct a quahog seeding program in open shellfishing areas south of the
hurricane barrier to offset the expected loss of over 9 million shellfish. EPA has 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
For a more detailed discussion, see Appendix H to this Final 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 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. FWS did not provide any comments on the Project. EPA believes the Project, if conducted in
accordance with the terms of this Final Determination, will ensure the conservation offish and wildlife
resources and will not cause significant adverse effects.
For a more detailed discussion, see Appendix 0 to this Final Determination.
EPA Final Determination for the Proposed South Terminal Project
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Endangered Species Act, 16 U.SX. §1531 et seq.
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 received final written confirmation from FWS on July 17, 2012. EPA 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. FWS concurred with EPA's conclusions by letter dated August 29, 2012.
See Appendix K1 for EPA's Biological Assessment for the roseate tern.
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.
NMFS provided comments to EPA on June 19, 2012 stating that the species may be present in New
Bedford Harbor. After obtaining technical assistance from NMFS, EPA initiated informal consultation
and transmitted its Biological Assessment and conclusions to NMFS on October 31, 2012. (See Appendix
K2 for EPA's Biological Assessment for the Atlantic sturgeon.) As discussed in the Biological Assessment,
EPA concluded the proposed South Project may affect the Atlantic sturgeon but, with specified
mitigating measures, is unlikely to adversely affect the species. NMFS concurred with EPA's conclusions
by letter dated November 14, 2012.
For a more detailed discussion, see Appendix I to this Final 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 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 under § 761.61(c) requires a determination by EPA that the proposed action
will not pose an unreasonable risk of injury to health or the environment. The Commonwealth has
determined that the PCB-contaminated soil to be excavated, disposed and capped, and sediment to be
EPA Final Determination for the Proposed South Terminal Project
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dredged, disposed arid capped meets the definition of PCB remediation waste as defined in §761.3. As
such, this soil and sediment are regulated for cleanup pursuant to § 761.61.
Based on information provided by the Commonwealth, EPA has determined that the proposed
excavation, disposal and capping of the upland soils and dredging, disposal and capping of certain PCB-
contaminated sediment, including dredging and disposal activities relating to CAD cell 3, all of which are
included in the South Terminal Project, do not pose an unreasonable risk to human health or the
environment as long as the conditions set forth 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(i).
In addition, EPA is modifying an existing TSCA Determination issued on November 12, 2008, as first
modified on June 18, 2012, to include dredging and disposal of PCB-contaminated sediment dredged
from within the footprint of CAD cell 3 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, as amended on June 18, 2012, are met, EPA is determining that disposal
of CAD ceil 3 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).
See Appendices J{ 1) and J(2) for full description of the TSCA Determinations conditions.
i
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
93.153.56 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.
55 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 S.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 o* VOCs.
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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 Final Determination for minimum air monitoring requirements.
Executive Orders and Policies
Pursuant to EPA guidance, "In additional to legally binding laws and regulations, many Federal and state
environmental and public health agencies—develop criteria, advisories, guidance, and proposed
standards that are not legally binding, but that may provide useful information or recommended
procedures.57 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.58 TBCs 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.59
Following is a list of significant federal Executive Orders that have been identified as TBCs for the
Project.
Floodplain Management Executive Order, Executive Order 11988
Executive Order 11988 setting out requirements for federal agencies in the management of floodplain
concerns 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 Final 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
57 See "CERCLA Compliance with Other Laws Manual: Interim Final", EPA/54C/G-89/006 (August 1988), p. 1-76.
58 See "Considering Wetlands at CERCLA Sites", EPA A54C/R 94/019 (May 1994), p. 11.
59 Id, at p. 12. .
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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,
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 significant,60 it has identified the planned Marsh
Island restoration project as providing mitigation for this loss of flood storage capacity.61 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 primary beneficial floodplain values identified for the area affected by this Project
is flood prevention. The New Bedford Harbor Trustee Council is currently funding a program to restore
Marsh Island. Through this project, the State assures that primary beneficial value of flood storage will
be restored. A fact sheet issued by the New Bedford Harbor Trustee Council in June 2012 states that
the Marsh Island restoration is anticipated to begin in late 2013. The Commonwealth has stated that as
long as the Marsh island restoration and the SER proceed on schedule, then the flood storage mitigation
work will occur on a schedule that will, to the extent practicable, parallel the loss of flood storage
capacity from construction of the SER project.62
EPA's determination that this Project meets the requirements of Executive Order 11988 is expressly
conditioned on the completion of the Marsh Island mitigation project within one year from the
completion of the CDF.
For a detailed discussion, see Appendix L to this Final 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.
60 EPA, through its own discretion, consulted with FEMA about the impact of flood storage loss to New Bedford
Harbor. FEMA did not believe the loss was significant.
61 When the Draft Determination issued, EPA had not received any information from the Commonwealth to
indicate that the flood storage created by the Marsh Island restoration project had been identified as a floodplain
mitigation measure for any other activity in New Bedford Harbor. Since the Draft Determination issued, the
Commonwealth has stated, as the permitting authority for such projects, it "...is unaware of any other project in
New Bedford Harbor that is currently, or is anticipated to be identified as mitigation for any other project or
activity occurring or scheduled to occur in New Bedford Harbor." (See Commonwealth submittal dated 10/12/12.)
Attachment B to the Commonwealth's June 26, 2012 submittal contains plans for the Marsh Island restoration
project.
62See MassDEP2012g. - , •
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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 evaluated 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.63
For a detailed discussion, see Potential Community Impacts on page 8 and Appendix M to this Final
Determination.
Wetland Executive Order 11990
Executive Order 11990 requires Federal agencies to take 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 no 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. As
discussed above and in Appendix E, EPA has concluded that there is no practicable alternative to filling
the 0.11 acre salt marsh and O.llfreshwater wetland for this Project. EPA has also concluded that all
practicable measures to minimize impacts to wetlands have been taken, and that the salt marsh
mitigation at River's End Park is large enough to address both the direct impacts to the wetlands and
any secondary impacts if they occur.
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 Final
Determination is considered a Federal undertaking, EPA has conducted a review of the proposed Project
to determine its impact on controlling and preventing the spread of invasive species.
The Commonwealth has developed and EPA approved a post-construction piling and bulkhead
monitoring plan to detect the presence of new invasive species that may colonize the Harbor waters as a
result of the construction of the terminal bulkhead and numerous pilings that will over time support
marine growth or that may arrive via international vessels (See MassDEP2Q12f).
63 As stated on-page 3, EPA has received a Construction Management Plan from the Commonwealth but will not be
reviewing that Plan until after the issuance of this Final Determination to ensure the Plan is consistent with the
Project as described in this document.
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In addition, there is a potential for invasive species to intrude into the salt marsh compensatory
mitigation area at River's End Park. The Commonwealth has incorporated an Invasive Species
Management Plan (ISMP) into its Compensatory Mitigation Plan described in Section 7.3 of Appendix E.
As discussed in that section, EPA believes the ISMP will 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.
See Appendix N and Section 7.3 of Appendix E for further discussion.
Executive,Order 13175: Consultation and Coordination with Indian Tribal Governments (November 6,
2000)
. EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984)
EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011)
On November 6, 2000, the President issued Executive Order 13175 in order to establish regular and
meaningful consultation and collaboration with tribal officials in the development of Federal Policies
that have tribal implications, to strengthen the United States Government-to-government relationships
with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes. Prior to that, "
EPA had a formal-policy in place specifying how it would interact with tribal governments and consider
tribal interests in carrying out its programs to protect human health and the environment. Signed in
1984, this EPA Policy for the Administration of Environmental Programs on Indian Reservations (1984
Policy) remains the cornerstone for EPA's Indian programs. On November 5, 2009, the President
signed a Memorandum of Tribal Consultation (Presidential Memorandum) directing each executive
department to develop a detailed plan of action to implement Executive Order. As a result of the
Presidential Memorandum, EPA, on May 4, 2011, issued the EPA Policy on Consultation and
Coordination with Indian Tribes. '
In accordance with the Executive Order and EPA policies, tribal consultation involving the New Bedford
South Terminal State Enhanced Remedy project has been ongoing since the start of the project64 Since
this State Enhanced Remedy project has the potential to affect tribal interests, EPA New England
initiated consultation that established coordination and communication among EPA, the
Commonwealth of Massachusetts, the Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee
Wampanoag Tribe. Both tribes claim cultural affiliation with the project area.
64 Consultations with potentially affected Indian tribes commenced prior to the effective date of the EPA Policy on
Consultation-arid Coordination with Indian Tribes (May 2011). Nevertheless, EPA has conducted the consultations
with these tribes in a manner generally consistent with that policy.
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 53
-------
Tribal environmental and historic preservation representatives participated in the consultation and
communication activities that have been ongoing since December 2010 through October 2012. These
consultation and communication activities included conference calls, on-site visits and other face-to-
face meetings in the vicinity of the project or at the National Oceanographic and Atmospheric
Administration campus in Woods Hole, Massachusetts, which was a mutually agreeable and convenient
meeting location for both consulted tribes.
EPA has fulfilled its responsibilities under the authority Executive Order 13175 for conducting
government-to-government consultation with the tribes regarding this Final Determination concerning
the South Terminal Project. EPA has understood and considered the tribes' request that the
Commonwealth include certain freshwater species in the project wetlands mitigation plan. EPA has
concluded that doing so would not be practical because the mitigation will be focused on saltwater
vvetlands.
For a detailed discussion, see Appendix P to this Final Determination.
For the foregoing reasons, by my signature below, I approve the issuance of this Final
Determination for inclusion of the South Terminal Project as described in this document in the State
Enhanced Remedy which is incorporated into the 1998 Record of Decision for the Upper and Lower
Harbor Superfund Site.
Declaration
Date
EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Page 54
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List of Figures for EPA Final Determination for the South Terminal
New Bedford Harbor State Enhanced Remedy
Project
Figure 1 Final Map of Work Components
Figure 2 Map of Geographic Areas of Niew Bedford Harbor Site
Figure 3 Map of New Bedford and Fairhaven Designated Port Area
Figure 4 Map of Final Site Configuration
Figure 5 Maps of Resource Areas (including Palesol and Shipwreck)
Figures Map of Potential Federal Channel Dredging
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List of Tables for EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 1 Volume of Material to be Dredged
Table 2 Major Federal Substantial Requirements Referenced in EPA's Final
Determination
Table 3 List of Significant Submissions from the Commonwealth Referenced in EPA's
Final Determination
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List of Appendices for EPA Final Determination for the South Terminal
New Bedford Harbor State Enhanced Remedy
Project
Appendix A Minimum Air Monitoring Standards and Requirements ,
Appendix B EPA Guidelines for Fish Consumption in New Bedford Harbor
Appendix C Water Quality and Turbidity Performance Standards
Appendix D Commonwealth of Massachusetts Letters Concerning Applicable or Relevant
and Appropriate Regulations.
Appendix E Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act,
. and Executive order 11990
Appendix F Section 402 of the Clean Water Act (Stormwater)
Appendix G National Historic Preservation Act
Appendix H Essential Fish Habitat Assessment under the Magnuson -Steven Act
Appendix ! Endangered Species Act
Appendix J(l) Draft TSCA Determination (CAD and dredging of CDE ,
Appendix J(2) Draft Second Module to November 12, 2008 TSCA Determination
Appendix K(l) Final biological Assessment for Roseate Tern
Appendix K(2) Final Biological Assessment for Atlantic Sturgeon
Appendix L Floodplain Management Executive Order 11988
Appendix M Environmental Justice Executive Order 12898
Appendix N Invasive Species Executive Order 13122
Appendix O Fish and Wildlife Coordination Act
Appendix P Consultation and Coordination with Indian Tribal governments Executive Order
13175
Appendix Q Responsiveness Summary •
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 1
Final Map of Work Components
(Second map attached to show existing upland asphalt cap)
-------
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 2
Map of Geographic Areas of
the New Bedford Harbor Superfund Site
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 3
Map of New Bedford - Fairhaven Designated Port Area
-------
^ Massachusetts Office of Coastal Zone Management
251 Causeway Street, Suite 800
Boston. MA 02114
www.mass.gov/czm
New Bedford-Fairhaven
Designated Port Area (DPA)
For planning purposes only. In the event of conflict between
this map and the accompanying written description,
CZM shall issue a written clarification pursuant to the
Designated Port Area (DPA) regulations at 301 CMR 25.00.
O Point of Beginning
/V Designated Port Area Boundary
Chapter 91 Presumptive Line
Municipal Boundary
I I Assessor's Parcel
Base map: MassGIS 1:5,000 Color Ortho Imagery. 2001.
Map coordinate system: North American Datum of 1983,
Massachusetts State Plane Coordinate System,
Mainland Zone (FIPS zone 2001). meters.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 4
Map of Final Configuration for South Terminal Project
-------
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SUITE 502
BOSTON MA 02110
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 5
Map of Resource Areas
(including Paleosol and Shipwreck)
-------
rsMiMMONtlt l*»IV\nANnF(IMniNGtiOU1H1IMmM.aKOO*CI.rNU2d«q
-------
True North
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APEX Geotechnical Borings • Proposed Dredging Area
r~i Area of Moderate Submerged Prehistoric Potential
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2 DO
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Boat Ramp
Key To Vibracores and
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2 Vibracore NB-VC-02
l 3. Vibracore NB-VC-03
4 Vibracore NB-VC-04
| 5. Vibracore NB-VC-05
6. Boring A-2010-B6
1 7. Boring A-2010-B4
8. Boring A-2010-B3
9 Boring A-2010-B1
10 Boring A-2010-B2
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Figure 10. Map of South Terminal Marine Infrastructure Park Project Areas,
Depicting Vibracore and Geotechnical Boring Locations, and the
Subtidal Area Identified as Exhibiting Moderate Archeological
Potential.
-------
Tables
Figure 8. Location of Wreck Site in Relation to Existing Shorelines and Bulkheads.
Phase II Investigation of Target M4/S5
Proposed South Terminal Marine Infrastructure Park
New Bedford, Massachusetts
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Figure 6
Map of Potential Federal Channel Dredging
/
-------
-------
EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Table 1
Final Volume of Material to be Dredged
(engineering estimates)
-------
Material to be Dredged
Destination
of Dredged
Material
Mooring Northern
Mitigation
Mooring Southern
Mitigation
Gifford Street
Channel
Relocation
Top of Dredge
£
x:
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!-?S--0C1
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
-------
EPA Final Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
5 ,:,j v; •' .|«ederatRequirem%ij!v;
^•'Status/ '.v"%
''l-J-' ^3ynopsis.^;;"
•'v.-Aetion;to^be,Taken'- < -u V, '
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
determined that 404(b)(1) guidelines
will be met.
Rivers and Harbors Act of
! 1899,.(33 U.S.C. §403 el seq. /
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
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 Final 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 Final Determination. Finally, some federal requirements are implemented by the State. These are
referenced in the Administrative Record.
1
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EPA Final Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
Act, 33 U.S.C §1342
(Storm water)
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 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
TSCA determination is included in
EPA's Final Determination for CAD
cell 3; EPA is modifying the
existing TSCA determination for
CAD cell 2 and has included the
modified TSCA Determination in its
Final Determination. (Although the
upland remediation will be
performed independently under the
state cleanup program, EPA has
included this work in its TSCA
Determination for upland disposal -
of PCB remediation waste within
the upland portion of the terminal
2
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EPA Final Determination For South Terminal Project Table 2
New Bedford Harbor State Enhanced Remedy
Major Federal Substantive Requirements
and 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
NESHAPSareasetofair
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,
Dredging andpile driving will not
adversely affect the hurricane
barrier.
3
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EPA Final 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 USC 1451 eiseq.
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 etseq.
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. EPA has concluded, for the
reasons discussed in its final
Biological Assessment that while
the Project may affect the Atlantic
sturgeon, as long as the
Commonwealth fully implements all
the mitigation measures, it is
unlikely to adversely affect the
species.
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
EPA has determined that impacts to
EFH species will be minimized and
mitigated to the greatest extent
practicable provided that the
4
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EPA Final Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
regulated under a federal
fisheries management plan.
Consultation with National
Marine Fisheries Service must
be conducted.
Commonwealth folly implements all
of the proposed minimization and
mitigation measures.
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 concludes there are
potential impacts to Fish and wildlife
and has reviewed potential
mitigation measures and concludes
that the mitigation measures
included in the Final Determination
are adequate. See Appendix E and
Appendix 0 to this Final
Determination.
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 completing consultation, EPA
finds no adverse affect for the
upland, subtidal and intertidal areas
as long as the Commonwealth
agrees to abide by the conditions
imposed in the Final Determination.
5
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EPA Final Determination For South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 2
Major Federal Substantive Requirements
Preservation of Historical and
Archeological Data, 16USC
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
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EPA Final Determination For South TerminalProject
New Bedford Harbor State Enhanced Remedy
Table 2
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 determination that
there is no practicable alternative to
activities that will impact wetlands.
The 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 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
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EPA Final 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.
8
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Table 3
List of Significant Submissions from the Commonwealth
Referenced in EPA's Final Determination
>
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 3
List of Significant Submissions from the Commonwealth
Referenced in EPA's Final Determination
MassDEP 2012e-9/18/12 Submittal concerning cultural and archeological resources.
Submitted in response to EPA 8/13/2012 request for documents. Attachments include;
Attachment A - Confirmation Documentation for January 18, 2012 Distribution;
Attachment B - Commonwealth's Responses to USPEA Questions June 18, 2012;
Attachment C - Commonwealth's Responses to USEPA Questions June 26, 2012;
Attachment D - USEPA Draft Determination, July 16, 2012;
Attachment E - Map Showing Proposed Dredge Footprint;
Attachment F - Maps Showing Three Potential Site Configurations; and
Attachment G - Cultural Resources Background Study and Archeological
Sensitivity Assessment, September 2012
MassDEP 2012f -10/1/12 NBH Phase 1 Radio Tower and 9/21/12 Final, Phase 1
Environmental Site Assessment of Multiple Properties in New Bedford, MA
MassDEP 2012g -10/12/12 Response to USEPA Questions: Disposal Location for
Dredged Sediment (Q. 11 from EPA 8/13/12 letter); Marsh Island restoration work (Q.
13 from EPA 8/13/12 letter); Alternate non-blasting methods with descriptions of hoe
ram, bucket removal, drill and fracture, and cutter head dredging techniques (Q. 4 from
EPA 10/5/12 letter). Attachments include:
New Bedford Harbor Trustees Council Project Update, June 2012; and
New Bedford Harbor Trustees Council Funded Land Preservation Projects
MassDEP 2012h - 10/17/12 Revised Response to USEPA Questions: Upland
Transportation Corridors (Q. 2 from EPA 10/5/12 letter); and Fish Deterrent Plan with
transects (Q. 7 from EPA 10/5/12) with maps and figures
MassDEP 2012i -10/19/2012 email from (Gary Davis, Massachusetts EOEEA to Carl
Dierker, EPA confirming commitment to develop based on Configuration 2A and
confirming taking authority
MassDEP 2012j -10/22/12 Response to USEPA Questions: Endangered Species
consultations (Q. 2 from EPA 10/5/12 letter); Response to EPA comments on section 9.0
of draft Mitigation Plan dated 10/19/12. Attachments include:
Appendix 1 -10/4/12 letter to Elaine Stanley, EPA, from Commonwealth;
Appendix 2 -10/19/2012 Essential Fish Habitat Assessment Addendum; and
Appendix 3 -10/22/2012 Biological Assessment of the Atlantic sturgeon
1
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Table 3
MassDEP 2012k - 10/24/12 Response to USEPA Questions: Final design for silt and
bubble curtains (Q. 1 from EPA 10/17/12 email); Aquatic toxicity of expandable grout (Q.
3 from EPA 10/17/12 email) with MSDS sheets attached
MassDEP 20121 -10/27/12 Response to additional Phase 1 questions from EPA emails
on 10/22/12 and 10/24/12 with New Bedford Marine Commerce Terminal Proposed
Configuration A2, last update 10/25/2012
MassDEP 2012m - 10/30/12 Revised Appendix S from June 18, 2012 submission
(MassDEP2012a) and Revised Figure 1 of project components, last updated on
10/30/2012
MassDEP 2012n - 10/30/12 New Bedford Marine Commerce Terminal Proposed
Configuration A2,
MassDEP 2012o - Chet Myers email of 11/8/12 to Ann Williams confirming 0.41 acres of
existing salt marsh at the terminal site
MassDEP 2012p - 11/8/12 Response to USEPA request for additional information on
expanded dredging
MassDEP 2012q - 11/13/2012 Fish Deterrent Plan
MassDEP 2012r - 11/14/12 Final Mitigation Plan with appendices and figures; ISMP for
Bulkhead, Pilings, and Facility
MassDEP 2012s - 11/16/12 email from Chet Myers to Phil Colarusso with 10/15/2012
Final Underwater Acoustic Modeling of Construction Activities for Marine Commerce
South Terminal in New Bedford, MA attached
MassDEP 2012t - 11/16/12 email from Gary Davis confirming there will be no further
changes to the Commonwealth's ARAR letter of June 18, 2012.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix A
Final Minimum Air Monitoring
Standards and Requirements
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
APPENDIX A
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 South Terminal Project upland work.
The means and methods shall be designed and implemented in a manner that
. minimizes airborne PCBs, particulates, lead, and asbestos, if present, to the
maximum degree practicable. The Plan will detail the means and methods to be
used to maintain airborne contaminant levels at'the-performance standards .
specified in Item 4, below. The Plan will be in effect continuously until
completion of the work.
b. A description of how the Commonwealth 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. The Commonwealth must first propose, and EPA must approve, the method
for the comparative analysis prior to its implementation.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State'Enhanced Remedy '
APPENDIX A
3. The Commonwealth shall use best management practices to comply at all times during
performance of the work, with air quality performance standards. Except for the
transportation corridors, a fence shall be constructed along the contiguous upland parcel
boundaries during all work activities and the point of compliance for air quality
performance standards shall be the fence line. Except for the transportation corridors, on
the non-contiguous parcels a fence shall be constructed along the property boundary
during all work activities and the point of compliance for air quality performance
standards shall be the fence line,
4. PMjo results are used to provide information about the effectiveness of emission controls
. and thus when kept under control, emissions from other contaminants, such as PCBs and
asbestos, will also be controlled. In order to better control conditions during the Project,
tiered action levels based on real time PM;o results shall be taken. The Commonwealth
shall initiate dust controls at levels lower than the 100 pg/m3 10-hour TWA, and'shall
apply these action levels to shorter time periods as specified below. At no time during .
the performance of the remedial, work shall levels exceed the following standards:
^III
Airborne Particulates
(PMio)
Any visible dust emissions
from Project activities
Implement corrective
measures to control dust •
(e.g., water sprays)
Airborne Particulates (a)
(PMio)
• >75 pg/mJ
Increase application rate of
dust controls
Airborne Particulatesia)
(PMjo)
>150 pg/m3
Continue wetting of source
area. Suspend Project
activities and notify EPA
Airborne Particulates (b)
' (PMio) '
> 100 pg/m3
Continue wetting of source ,
area. Suspend Project
activities and notify EPA
Airborne PCBs ^
>0.10 pg/m3
Suspend Project activities
and notify EPA,
Airborne asbestos
> 0.1 fiber/cc
Suspend Project activities
and notify EPA
- Airborne Lead
> 50 pg/m3
Suspend Project activities
and notify EPA ,
(a) Based on 5-minute average TEOM® data or equivalent
(b:) Based on a 10-hour Time Weighted Average (TWrA)
5. The Commonwealth may propose an alternate airborne PCB standard (Not To Exceed
0.260 jJ-g/m ) for properties along the fence line, where no residential property exists
within 200 feet of said" fence line.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
APPENDIX A
6. In the event of an exceedance and work stoppage is required, the Commonwealth shall
submit a proposed corrective action plan to address the exceedance. Work shall resume
only with EPA's approval and upon implementation of the corrective action plan,
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix B
EPA Guidelines for
Fish Consumption in New Bedford Harbor
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Fish Consumption Regulations and Recommendations | EPA Cleanups: Communities aro... Page 1 of 6
rrm st«..
APnl Env fonrr«-nt«l Pr*j?ector
EPA Cleanups: Communities around New Bedford Harbor
Fish Consumption Regulations and Recommendations
Since 1979, Massachusetts regulations have prohibited eating fish and/or shellfish caught in certain areas of New
Bedford Harbor. The Massachusetts Department of Environmental Protection samples local fish and shellfish every
year to determine whether PCB concentrations are declining as a result of cleanup activities around New Bedford
Harbor.
U.S. EPA recommends that recreational fishermen, shell fishermen and everyone else follow the Massachusetts
regulations. In addition, we recommend limited eating of certain species not covered by the 1979 state regulations.
*Please see below for information on species specific information and recommendations for sensitive groups -
pregant women, nursing mothers, children under age 12 and women who may become pregnant.
Updated 2010 EPA
Recommendations
Dp NOT «at shellfish
No coma manscos
Ndocoma manscos
Do NOT vat fish
No coma pescado
Nao coma poixo
<&
Do NOT cat lobster
No come tangos!*
N*o coma tagosta
Do NOT cat bottom feeding fish:
No coma p«»cado eki fondo
NAo coma pcote de fundo
• «!»*&» HJutVtJ
•ifyA
On this page:
• Partnering with Mass Dept. of Environmental Protection
• Assessment with Mass Dept. of Public Health
• Recommendations
• Inner Harbor - Closure Area 1
• Outer Harbor - Closure Area 2
• Buzzards Bav - Closure Area 3
More Information
• Information about Massachusetts
fish consumption advisories
• Contaminant monitoring reports for
seafood harvested in the NBH area
http://www.epa.gov/nbh/seafood.html
11/16/2012
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Fish Consumption Regulations and Recommendations j EPA Cleanups: Communities aro... ' Page 2 of 6
Partnering with Mass Dept. of Environmental Protection
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 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 fad sheet will be issued as appropriate.
Assessment with Mass Dept. of Public Health
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 consumption of
any fish/shellfish 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.Qov/dph/fishadvisories. EPA supports this additional advice, and 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. ¦
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 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 (one meal per week in Clark's Cove). See map above for a summary of EPA's recommendations.
It is important to recognize the substantia! benefits offish 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.
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. ,
http://www.epa.gov/nbh/seafood.html
11/16/2012
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Fish Consumption Regulations and Recommendations | EPA Cleanups: Communities aro... Page 3 of 6
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) (1 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, including bottom Do not eat it
feeders
http://www.epa.gov/nbh/seafood.html
11/16/2012
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Fish Consumption Regulations and Recommendations | EPA Cleanups: Communities aro... Page 4 of 6
Closure Area 2
Closure Area 2
Outer Harbor:
South of the hurricane barrier to Ricketsons Point and tip of Sconticut Neck (Wilbur
Point)
— Includes Clarks Cove —
MaD of the uDDer and lower harbors (PDF) (1 oa. 3.3MB. about 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:
Do not eat it
Flounder
<3&*
Do not eat it
Scup
Do not eat it
Tautog
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 12, 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 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
http://www.epa.gov/nbh/seafood.html
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Fish Consumption Regulations and Recommendations | EPA Cleanups: Communities aro... Page 5 of 6
html '
If you catch.
- Includes area south of the West Island Causeway --
Mao of the three fish closure areas in the NBH area
then...
Fish:
Black sea bass
Eat no more than one meal per month
Bottom-feeding fish:
Eel
There are no eating restrictions
Flounder
There are no eating restrictions
Scup
Do not eat it
Tautog
¦ 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 (clams, quahogs, mussels etc.)
There are no eating restrictions
NOTE: Pregnant women, nursing mothers, children underage 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 month of shellfish caught in Area 3.
WGMS
Last updated on Saturday, May 05, 2012,
http://vvww.epa.gov/nbh/seafood.html
11/16/2012
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Fish Consumption Regulations and Recommendations | EPA Cleanups: Communities aro... Page 6 of 6
http://www.epa.gov/nbh/seafood.html 11/16/2012
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix C
Final Water Quality Performance Standards
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
Water Quality Performance Standards
I. Introduction
1. These Water Quality Performance Standards ("Performance Standards") shall apply to the
South Terminal Project as defined by EPA's Final Determination for the South Terminal
Project issued on November 19, 2012,
2. The Commonwealth of Massachusetts is the lead agency for the State Enhanced Remedy
work, arid' has a designated State Enhanced Remedy Project Manager ("SER PM"). ¦
3. Pursuant to the Memorandum of Agreement entered into between EPA and the
Commonwealth in 2005 relative to the New Bedford Harbor State Enhanced Remedy, the,
SER PM shall continue to coordinate with the Regulatory Agencies for this South
Terminal Project. In addition, to ensure consistency with EPA's Final Determination
for the South Terminal Project, EPA shall have review and approval authority as
described in these Water Quality Performance Standards.
4. No modifications may be made to these Water Quality Performance Standards without prior
written agreement of EPA. ,
5. In the event of a conflict between these Performance' Standards and the Final Mitigation Plan
included in EPA's Final Determination, the Final Mitigation Plan shall prevail.
II MADEP 401 Water Quality Program Standards:
1. Anti-degradation' provisions of the Massachusetts' Surface Water Quality Standards
protect- all waters, including wetlands. The Commonwealth shall ensure that all
necessary steps are taken to assure that the proposed activities will be conducted in a
manner, which will avoid violations of said standards.
2. Environmental Monitor. The Commonwealth shall ensure that the contractor shall
employ an "Environmental Monitor" (EM) and that the contract requires the EM to report
directly to the, SER PM and EPA. 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 SER PM and the
Regulatory Agencies so that s/he may be contacted on a 24-hour basis, seven days a
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
week to address any emergency situation. The EM shall be authorized to contact .the SER
PM and EPA directly for any matter involving wetland protection. The EM shall submit
bi-weekly reports to the SER PM and EPA, following the commencement of construction
and continuing until completion of the work in resource areas. The bi-weekly reports
shall summarized, 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.
3. All in-water work shall meet EPA's Final Determination conditions to protect aquatic
life, including winter flounder spawning & the alewife'fish run that passes through the
, harbor to the Acushnet Sawmill Pond spawning area.
4. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project as required by
EPA's Final Determination, 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 SER PM for prior review and written approval prior to
commencement of construction. The SWPPP shall emphasize measures to contain and
prevent sediment laden water from being discharged from dewaitering, 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 EPA's NPDES
Construction Stormwater 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 specific measures to be taken to adjust the pi I to acceptable limits
[for example, carbon dioxide (C02) bubbling when concrete pouring is also
occurring].
5. The Commonwealth shall ensure that the contractor shall implement the use of silt
curtains and absorbent booms, and/or the Fish Deterrent Program as outlined below:
*
a. CDF Filling: At all times of year, when filling below Mean High Water
occurs in association with construction of the CDF, the area being filled shall
either be completely encircled with .steel sheet piling, or completely encircled
with a combination of steel sheet piling and silt curtains, or completely encircled
with silt curtains.
,1. Monitoring: Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section II.9 must be
satisfied, '
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
b. Compensatory Mitigation: At any depth and at all times of year, all areas
where there is filling and capping associated with compensatory mitigation
(i.e. winter flounder mitigation creation and intertidal and subtidal mitigation
capping) will be completely encircled by silt curtains and absorbent booms for the
duration of the filling and capping activity.
1. Monitoring; Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section 11.9 must be
satisfied.
c. Dredging, Filling Capping, and Rock Removal at Depths Shallower Than
-5 Meters MLLW; In all areas where.dredging, filling (except for filling below
Mean High Water associated with construction of the CDF. addressed in
Section II.5.a. and compensatory mitigation activities, addressed in Section
II.5.b.), capping, and other activities such as rock removal will occur, the
following is required:
1. From January 15 through June 15 of any year, the Fish Deterrent
Program (see Section II.8 and Attachment 1) must be implemented.
This Program requires that absorbent booms, silt curtains, bubble curtains
and fish weirs be erected around the work area to prevent fish, particularly
winter flounder, from entering the work area. [Note: other Fish Deterrent
Program requirements as specified in Section II.8 must also be employed.]
• A, Monitoring: Inside the silt curtain (except for areas
below Mean High Water to be filled in association with
construction of the CDF), turbidity monitoring is required at a
reference location established approximately 200-feet up-current
• from the dredge and at a monitoring location established 200-feet
down-current from the dredge, unless dredging is conducted within
200 feet of the silt curtain, in which case turbidity monitoring must
be conducted outside of and within 15 feet from the silt curtain and
at a reference site located 200 feet from the silt curtain.
Turbidity standards outlined in Section 11.9 must be satisfied.
2. From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards.
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section 9
must be satisfied.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
B. If silt curtains are deployed to ensure compliance with turbidity,
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located
200 feet from the silt curtain. Turbidity standards outlined in
Section II.9 must be satisfied.
d. Filling and Capping At Depths Equal To or Greater Than -5 Meters
MLLVV: In all areas (except for filling associated with construction of the GDF
(addressed in Section II.5.a.) that are not already enclosed, and compensatory
mitigation activities (addressed in Section Il.S.b), where filling (including CAD
cell capping) will occur, the following is required:
1. From January 15 through June 15 of any year, CAD cells (including
the borrow pit) that are being filled or capped shall be completely
encircled by silt curtains and absorbent booms for the duration of the
filling activity.
A. Monitoring: Turbidity monitoring must be conducted outside
of and within 15 feet from the outside edge of silt curtain and at a
reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section II.9 must be satisfied.
2. From June 16 through January 14 of any year, CAD cell filling and
capping may proceed without silt curtains unless necessary to ensure
compliance with turbidity standards.
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
. dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
11,9 must be satisfied.
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the outside edge of silt curtain and at a
reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section II.9 must, be satisfied.
e. Dredging At Depths Equal to or Greater than -5 Meters MLLW: In all
areas where dredging and associated activities such as rock removal will occur in
depths equal to or greater than -5 meters MLLW:
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
1, From January 15 through June 15 of any year, silt-curtains and
absorbent booms shall be deployed to enclose all areas being dredged.
A, Monitoring: Inside the silt curtain, turbidity monitoring is
required at a reference location established approximately 200-feet
up-current from the dredge and at a monitoring location ,
. established 200-feet down-current from the dredge, unless
dredging is conducted within 200 feet of the silt curtain, in which
case turbidity monitoring must be conducted outside of and within
15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section II.9
(below) must be satisfied.
2. From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards.
A. Monitoring: Turbidity monitoring is required at a reference .
location established approximately 200-feet up-current from the
, dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
11.9 must be satisfied.
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located
200 feet from the silt curtain. Turbidity standards outlined in
Section II.9 must be satisfied.
6. The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit a plan for deployment of silt curtains, absorbent booms, fish weirs
and bubble curtains in accordance with Section II.5 to SER PM and to EPA for review
and approval.
7, The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit to the SER PM and to EPA for review and approval, a Contingency
Plan,, outlining the steps that the contractor will take, should dredging, filling, capping or
rock removal activities cause an exceedance of the Water Quality Monitoring criteria
.outlined within these Performance Standards (see Section 11.9). At a minimum, the
Contingency Plan shall include measures that may be undertaken by the contractor to
reduce turbidity such as reduction of the rate of operations, use of silt curtains and
absorbent booms, alternate dredging and capping methodologies, and the total halt of
operations. The Contingency Plan shall also include a provision that if the deployment of
silt-curtains and absorbent booms cannot be implemented in accordance with Section II.5
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EPA Final Determination for the South Terminal Project Appendix C
New Bedford Harbor State Enhanced Remedy
during the period of time from January 15 to June 15 of any year, work in the area may
not begin until June 16 of that year and the SER PM and EPA shall be notified.
8. Fish Deterrent Program - A Fish Deterrent Program in accordance with the Fish
Deterrent Plan in Attachment 1 shall be implemented for any work conducted within
waters shallower than -5 Mean Lower Low Water between January 15th and June 15th of
any year. If the Fish Deterrent Program is not implemented in an area shallower than -5
Mean Lower. Low Water prior to January 15th of any year, work in the area may not begin
until June 16th of that year. Proposed modifications to the Fish Deterrent Plan must be
submitted to the SER PM and to EPA for review.
9. Water Quality Monitoring Schedule and Methods
a. When in-water work is contained within a silt-curtained area in accordance
with Section II, 5, the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and once a week
thereafter and during those times when dewatering activities are ongoing from the
CDF filling operation:
1. 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.
2. Turbidity shall be measured at both the monitoring and reference site
prior to the start of dredging, and once every two hours during dredging.
3. 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 Over
Reference
<10
20 NTUs
11-20.
15 NTUs
>21
30% of reference
4. 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
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
be collected and submitted for analysis of Total Suspended Solids, total and
dissolved PCBs, and total metals for 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
Commonwealth shall, ensure that its contractor takes operational action(s)
designed to limit such exceedances (as outlined within the approved
Contractor's Contingency Plan, see Section II.7), 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 II.9.a until.compliance is reestablished.
5, If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the SER PM and EPA, in consultation with the
Environmental Monitor and the Commonwealth's 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. EPA, in consultation with the SER PM and the
Environmental Monitor, shall have final authority to determine the
requirements for additional mitigation, if any.
6. In the event the exceedence occurs during an activity and in an area in
which silt curtains are required from January 15 through June 15 in
accordance with Section II.5, if all additional mitigation measures exercised
in accordance with Section II.7, and compliance cannot be reestablished
within 48 hours of the implementation of the additional mitigation measures,
the work shall stop and may not resume again until June 16, unless the
Commonwealth can demonstrate to the satisfaction of EPA that, it has
instituted, measures sufficient to reestablish compliance and EPA concurs
that work may proceed with such measures.
b. When in-water work is not conducted within a silt curtain area in accordance with
Section II.5 the following water-quality monitoring program shall be carried out daily
for the first three days of activities commencing and twice a week thereafter and
during those times when dewatering activities are ongoing from the CDF filling
operation:
1. 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. .
7
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
2. Turbidity shall be measured at both the reference location and the
monitoring site (see-Section II.5) prior to the start of dredging, and once
every two hours of dredging.
3, An exceedance of the project turbidity standard shall be attributed to
project activities when the average turbidity at the monitoring site exceeds
the reference site turbidity plus the permissible turbidity increase, as
outlined in the following table:
, Reference Site Turbidity (NTUs).
Permissible Turbidity Increase Over
Reference
<10
20 NTUs
11-20
. 15 NTUs ;
21-30
10 NTUs
¦ >31
30% of reference
4. If, in two consecutive monitoring events, the average turbidity at the
monitoring site 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 site and the monitoring site
shall be collected and submitted for analysis of Total Suspended Solids,
total and dissolved PCBs. and total metals for arsenic, cadmium, copper,
chromium, lead, mercury, nickel, and zinc. When samples are submitted to
the laboratory, a 36-hour tum-round time shall be requested. Additionally,
the Commonwealth shall ensure that its contractor takes operational
action(s) designed to limit such exceedences (as outlined within the
approved Contractor's Contingency Plan, see Section II.7), such as
increasing the dredge cycle time, deployment of .silt curtains, 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 II.9.b.iii, until compliance is
reestablished.
5. If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the SER PM and EPA, in consultation with the
Commonwealth's 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. EPA,
in consultation with the SER PM. shall have final approval to determine the
requirements for additional mitigation, if any.
10. 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 piling/debris
8
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
removal shall be minimized to the greatest extent practicable. Should dredging with the
environmental bucket become infeasible or unsuccessful, such dredging must halt and the
SER PM and EPA must be notified. EPA, in consultation with the SER PM, must
approve any contaminated sediment dredging not using the environmental bucket before
such dredging may recommence. The contractor must continue to meet the project Water
Quality Standard Performance Standards when an alternate dredging method is used.
11. Water discharged from the barge shall be appreciably free of suspended sediment
and meet the water quality criteria established in Section II.9. 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 SER PM) prior to discharge.
12. The SER PM and EM shall be responsible for anticipating the need for and
installation of additional erosion/sediment/turbidity controls and shall have the authority,
subject to EPA review and approval, 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. Within 30 days of the completion of all dredging, all bathymetric surveys of the
dredge footprint shall be sent to the SER PM and EPA.
HI MADEP Chapter 91 Waterways Standards .
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Commonwealth to ensure its contractors conform to all terms and conditions herein.
2. Within 90 days after completion of the authorized South Terminal Project work, the
Commonwealth shall require its contractors to furnish to the SER PM a suitable plan
showing the depths at mean low water over all filled (except areas filled above Mean
High Tide) and dredged areas. Dredging 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 Commonwealth shall at
its expense, remove the shoal areas. The Commonwealth shall pay all costs of
supervision, and if at any time the SER PM deems necessary a survey or surveys of
the filled and dredged areas, the Commonwealth shall pay all costs associated with
such work. ,
3. The Commonwealth shall ensure that its contractor shall, at least three business days
prior to the commencement of any dredging and filling in tide,water, give written
notice to the SER PM and EPA of the time, location, and amount of the proposed
work.
IV Special Waterways Conditions
9
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix C
1. Dredged material shall be transported to suitable disposal facilities; unregulated
dumping of dredge materials is not permitted.
2. The Commonwealth shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during dredging and filling activities.
3. The Commonwealth 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 Commonwealth shall maintain vehicular access to water-dependent users
throughout construction activities. As part of the final design plan, the
Commonwealth shall ensure it 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 Commonwealth 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, fish weirs, bubble
curtains, and siltation curtains.
10
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Attachment 1 to Water Quality Performance Standards
FISH DETERRENT PLAN
Project Summary
The New Bedford Marine Commerce Terminal (NBMCT) (see Figure 1 for,a site location plan) in
New Bedford Harbor has been promulgated in order to develop a multi-purpose marine
terminal, a primary purpose of which will be to provide critical infrastructure to serve offshore
renewable energy facilities arid accommodate international shipping at the new facility. The
proposed facility will also be capable of supporting other industries within New Bedford, and
will beneficially re-use sand from navigational dredging or the construction of confined aquatic
disposal facilities to the extent approved by US EPA.
An assessment of the potential locations for supporting offshore renewable energy facilities
and international shipping completed within the document entitled "State Enhanced Remedy in
New Bedford, South Terminal", promulgated by the Commonwealth on January 18, 2012 has
resulted in the conclusion that South Terminal in New Bedford, Massachusetts is the only
practicable location due to a number of constraints, including: horizontal clearance, jack-up
barge access, overhead clearance, total wharf and yard upland area, berthing space, site
control/availability, and proximity. Due to the lack of other practicable alternatives, and the
avoidance and minimization of impacts to resource areas to the maximum extent practicable,
the South Terminal CDF is the Least Environmentally Damaging Practicable Alternative that will
meet the primary Project Purpose.
During construction of the NBMCT, many activities (including dredging) may have a temporary
detrimental effect to the fish that may be present within New Bedford Harbor. A Fish
Monitoring Workgroup (including members from NMFS, EPA and MassDMF) was convened to
prepare a Fish Deterrent Plan that could be utilized to reduce the impact to fish by excluding
them from a proposed area. The input from the Fish Monitoring Workgroup has been
incorporated jnto this Fish Deterrent Plan. This Fish Deterrent Plan (FDP) will include all
measures to be taken that will decrease the chance of mortality to marine species of concern
and their spawning activities (where applicable), including: Atlantic sturgeon, Winter and
Windowpane Floudners, Scup, and Anadromous fish species as directed by the National Marine
Fisheries Service (NMFS).
Objectives
1
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The objective of this FDP is to construct the NBMCT without restricting access to daily fishing
traffic and have the "least environmentally damaging as practicable alternative" in place to
deter fish species from the NBMCT construction area, so that none are harmed or inadvertently
"taken." The system is also intended to prevent spawning within the area of work, such that
the eggs of the species in question will not be present when work commences, and therefore
will not be damaged or destroyed. The fis'h species in question are as noted in the "NMFS
comments on the Draft Determination for South Terminal in New Bedford, MA" dated August
21, 2012 and included below;
• Atlantic Sturgeon;
• Winter Flounder;
. • Windowpane Flounder; (
• Scup;
• Black Sea Bass.
Methods
Engineered Barriers
A series of engineered barriers will be in place to exclude fish from entering the areas where
dredging and other marine construction are to take place. The barriers will re-direct, but not
otherwise limit vessel traffic in the area of work. The three types of barriers to be erected are a
fish weir, silt curtain, and bubble barrier. Coupled with an extensive monitoring program, the
system is intended to exclude fish from using the area while work is taking place. The layout of
the engineered barriers is depicted on Figure 2,
Fish Weir
A fish weir is a net which is placed in the water column and extends approximately 4 feet off
the bottom. It is designed to channel ground fish away from the area where work is to take
place. The weir will be placed on the outside of all the engineered barriers in close proximity to
the bubble curtain and silt curtain. A detail of the fish weir is depicted on Figure 3.
Silt Curtains
Turbidity Barriers, also known as turbidity curtains, silt barriers, and silt curtains in the industry
are designed specifically to contain and control the dispersion of floating turbidity and silt in a
water body related to marine construction, pile driving, site work, and dredging activities. Silt
curtains or silt protectors minimize these impacts by improving settling times and settling
suspended solids in a defined area well away from natural resources.
2
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For the NBMCT project, a modified silt curtain will be used both for turbidity control and also as
a fish barrier. Traditional silt curtains may or may not touch the harbor bottom, in the past silt
curtains which do not touch the bottom have been utilized in the Harbor during disposal
activities at CAD Cell #2, and during dredging activities during the posted time of year (TOY)
. restriction when water depth is greater than 4 feet. The water depth is critical as when there is
a tidal exchange the bottom of the curtain creates turbidity as it moves up and down in the
mud. The Commonwealth proposes to create a solid barrier extending silt curtains to the
harbor bottom; however the curtain will be modified so that the curtain does not create
turbidity. Two sections will be at the site of the proposed New Bedford Marine Commerce
Terminal and the third section will be at the proposed CAD Cell #3. The silt curtain will utilize a
tidal flux pocket, the tidal flux pocket consists of a continuous line of floatation running the
length of the silt curtain that is 4 feet from the harbor bottom, ensuring that the portion of the
silt curtain nearest the bottom is always held taut and vertical preventing the contact which
often is the cause of increased turbidity common in traditional silt curtain installations. This
floatation accounts for the tidal range of New Bedford Harbor, which is ± 5 feet. When the tide
is high, the silt curtain will be extended and will be stretched to its full length. When the tide
falls, the floats at the 4 foot level will hold the bottom portion of the silt curtain off of the
harbor floor, while the upper portion of the silt curtain will be supported on one side by the
lower floats and on the other side by the surface floats. This modified silt curtain design will
eliminate potential turbidity generation by the silt curtain, while allowing the silt curtain to
, extend from the water surface to the harbor floor. (See cross section Figure 4).
Bubble Barrier
The bubble barrier is a fairly recent addition to the mitigation techniques used in marine
construction. Bubble barriers are, in their simplest form, a perforated pipeline running along
the bottom of a waterway. Compressed air is pushed through the pipeline creating an array of
bubbles along the northern limits of proposed construction site. This barrier carries three
significant functions. First, fish species see the bubble array as a solid barrier, in effect a wall of
air bubbles. Second, the air bubbles dampen sounds created by construction activities. Third,
because the bubble barrier is a non-physical barrier, vessels may still use the existing South
Terminal and Gifford Street channels during construction.
For the NBMCT project, one bubble barrier will be incorporated into the fish barrier. The
bubble barrier will be placed on the northern end of the channel leading from the Gifford Street
Boat Ramp. The bubble barriers and silt curtain will be overlapped to eliminate the potential
for fish swimming around the barriers. A cross section of the barrier is attached as Figure 5.
The combination of fish barrier silt curtain and bubble barrier for a fish barrier system.
3
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Fish Monitoring
After the fish exclusion efforts are installed, a weekly monitoring procedure will be carried out.
This procedure will be first implemented one day after the initial fish exclusion efforts are
undertaken and once a week thereafter. The survey will be done with a sonar fish finder and a
towed video system. The perimeter of the area will be surveyed twice: first to verify the silt
curtain and bubble curtains are in place and second to verify the weir leader net is in place).
Then the dredge area will be surveyed to determine if fish are present using the following
procedure:
• Run transects parallel to shore or-depth contours with a randomly selected start point
for each survey.
• The survey area is approximately 1200 feet in length and runs parallel to shore. Survey
will be run at approximately 1 nautical mile per hour.
• Transects will be spaced 100' on center and will begin 50' from the eastern boundary of
the Silt Curtain.
• Two methods for detecting fish will be utilized: a fish finder used for identifying pelagic
fish schools, and a video surveillance system used to identify flat fish.
• The video method is most appropriate for detecting flat fish. In order to ensure that
visibility is acceptable for the survey, a laser scaling method will be used at each
transect to visually confirm the seafloor,
• If a transect fails the visibility test, the monitoring them can select up to 5 additional
grids to transect. .
• If more than 5 transects fail the visibility test, then divers will complete the survey.
Since the camera survey will image at a maximum 3% of the dredge area; the
conservative measure of a single fish being imaged will be used as the threshold for
implementing additional fish exclusion efforts.
The following decision tree will be used for the implementation of fish exclusion efforts:
VIDEO
If no flatfish are encountered the area will be considered free of fish.
If 1 or more flatfish are encountered -> fish removal procedure will be initiated.
SONAR
4
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If <5 pelagic schools are encountered on sonar -> the area will be considered free of fish.
If >=5 pelagic school are encountered on sonar -> fish removal procedure will be initiated.
Reporting
A video monitoring report will be provided to the Fish Monitoring Workgroup weekly within 4
days of the monitoring. For every video monitoring event the report will describe:
1. The condition of the engineered barriers (silt curtain, bubble curtains, and weir leader
net);
2. The prevalence of flatfish and other fish at the base of the fish exclusion devices;
3. Any actions taken to improve the conditions of the fish exclusion devices;
4. The total count of grid/transects completed; ,
5. The total count of grid transects skipped due to visibility - if grid survey method used;
6. Description of any survey alterations due to lack of visibility;
7. Total count of flatfish encountered;
8. Total count of other fish encountered;
9. Total count of schools on the sonar record;
10. Description of any actions taken to remove fish from the area;,
11. Any turbidity monitoring exceedances; .
12. Recommendations to improve the survey methodology, the fish exclusion devices, or
the fish removal tactics;
13. Field notes from video and sonar survey (note that the video and sonar data will be
observed in the field but will not be recorded).
Fish Exclusion Efforts
In the event that fish are found to be present during the monitoring surveys (the first video
survey), measures will be taken to use a "fish startle system" to move fish outside the
aforementioned barriers. The bubble barrier will be turned off and fish exclusion techniques
will the deployed. The three different types of systems that will be mounted to the survey
vessel to startle fish species are:
• Light
• Sound
• Tactile
All three systems will be used during all fish startling activities. The light system will include
strobe lights mounted on either side of the helm with extendable poles. The lights range in size
-------
from four to eight feet in length. Range of the color of light projected will vary, as will the
intensity of light emitted. Bright lights have been shown to startle fish in many studies. The
extendable poles will allow the lights to startle fish farther down in the water column than if
the system was mounted to the helm. The sound emitting part of the startle system will be an
underwater speaker capable of sound ranges from 100-1200 hertz. The speaker will hang on a
tether into the water column. The tactile fish deterrent will be made of a fish net with light
chain hanging to the harbor bottom. The net will be large enough gauge line that the fish will
see it but will have large openings so they are not caught. The system will progress through the
deterrence area at 2-4 knots on a calm day. During the fish startle activities the bubble barrier
will not be active to allow fish to pass through these areas unimpeded (see Figure 7 for
schematic of fish startle boat mount set up). The bubble curtain will then be turned on.
The video survey will be repeated (second video survey). If fish are found again, time
permitting a second attempt at removing the fish will be attempted and the video survey will
be repeated again. If fish are still found in the work area during the third video survey, the
Commonwealth will re-inspect the integrity of the fish exclusion methodology. If there is a
breach or other issue with implementation of the fish exclusion methodology, it will be repaired
and monitoring will begin again.
If, after one month of deployment, the fish exclusion methodology does not appear to be
meeting all of the goals of the fish exclusion program, the Commonwealth will meet with the
Fish Monitoring Workgroup (FMW), the Commonwealth's monitoring team, and others with
relevant expertise, to discuss issues and potential mitigation measures. The procedures
implemented will be reviewed with the FMW, and potential alternate methods for monitoring
and/or silt curtain maintenance, mitigation, or additional fish exclusion methods will be
discussed.
Once a breach, issue, or problem, or once a potential alteration/mitigation measure is
implemented, the monitoring will begin again to determine its effectiveness. Should fish be
found in three consecutive video surveys after implementation of the mitigation measure, the
Commonwealth will first re-inspect the integrity of the fish exclusion methodology. If there is a
breach or otherwise issue with implementation of the fish exclusion methodology, it will be
repaired and monitoring will begin again. Otherwise, either a subsequent alteration/mitigation
measure will be implemented, or a meeting with the FMW will be scheduled to discuss whether
or not modifications to the engineering controls could be made.
6
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FISH WEIR
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CENTER (TYP)
FISH WEIR
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NOTE: ALL DIMENSIONS
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FIGURE 3:
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APEX Phone: (617) 728-0070
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SPECIFICATIONS
• FABRIC - POLYESTER REINFORCED
VINYL HIGH VISIBILITY YELLOW
• CONNECTOR - SECTIONS ARE LACED
TOGETHER THROUGH GROMMETS AND
LOAD LINES ARE BOLTED TOGETHER.
• FLOTATION - 6" EXPANDED
POLYSTYRENE
•OVER 9 LBS./FT. BUOYANCY.
• BALLAST - 1/4" GALVANIZED CHAIN
(.7 LBS/FT)
POLYESTER
VINYL. REINFORCED
HIGH VISIBILITY
FABRIC
>
4.0"
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- FLOTATION
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NOTE: ALL DIMENSIONS
ARE APPROXIMATE
• FIGURE 4:
SILT CURTAIN
DETAILS
FISH PROTECTION
PLAN
NEW BEDFORD MARINE
COMMERCE TERMINAL
A 184 High Street, Suite 502
Boston, .Massachusetts
APEX Phone: (617) 728-0070
-------
NOTE: ALL DIMENSIONS
ARE APPROXIMATE
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FISH
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PLAN
NEW'BEDFORD MARINE
COMMERCE TERMINAL
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184 High Street, Suite 502
Boston, Massachusetts
Phone: (617) 728-0070
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix D
Commonwealth of Massachusetts ARAR Letters
August 27, 2010
February 10, 2012
June 18, 2012
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Commonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
One Winter Street Boston, MA 09108 •617-292-5500
OEVAL L PATRICK ¦' " RICHARD X. EIJLLIVAN JR.
Governor , Secretary
TIMOTHY P. MURRAY ... , , • KENNETH L KIMMELL
Lieutenant SoVBftror • ] Commissiorw
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' fntertidal 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,
inis Information is availablo In alternate format. Cat! Michelle Waters-EKanem, Diversity Director, at 817-292-5751. TDD# 1-866-539-7622 or 1-617-574-6868
MassDEP Website: www.mass.gov/d8p >. '
Printed on Recycled Paper
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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 habilat creation will be increased by 5
acres, from 17.73 acres to 22.73 acres.
o The OU-3 Ilot-Spot Capping Mitigation Area will be increased in size such
that the following increases in habitat creation or enhancement area realized:
2
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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 he
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 (UPA), 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.
•• "3
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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 110 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 not 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. BIO 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 withi50,000
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
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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 GAD 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(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 betaken 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 storm water 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(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.
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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
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constructed with fill, provided that neither pile supported, nor floating structures are a reasonable
alternative. 310 CMR 9.32(1 )(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
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 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.
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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. 21E. 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 inteitidal 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.
In addition to the foregoing, the construction of the terminal is also subject to the following
Waterways Regulations, at 310 CMR 9.00. et scq.:
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
9.3 5(2)(a) -Navigation
9.35(3)(a) - Fishing/fowling
9.35(3 )(b) - Qn-foot passage
9.35(4) - Compensation
9.36 - Standards to Protect Water-Dependent Uses
9.37 - Engineering Standards
9.37(1 )(e) 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
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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 Tier 1-3 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.
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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 disruptiveto 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.
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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 intcrtidal and subtidai areas. In addition, some blasting may be
required if the necessary channel depths cannot be achieved through conventional means. The
water quality regulations require a "LEDPA"-type analysis for dredge projects (314 CMR
9.07(1 )(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(1 )(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.
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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% 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(1 )(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
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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.:
Land Under Ocean
Designated Port Areas
Coastal Beach
Coastal Bank •
Salt Marsh
Land Containing Shellfish
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, intcrtidal 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
310 CMR 10.25-
310 CMR 10.26-
310 CMR 10.27 -
310 CMR 10.30-
310 CMR 10.32-
310 CMR 10.34-
310 CMR 10.35-
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approximately 1.9 acres of a combination of successional marshareas (mudllat, 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, 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.
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Commonwealth of Massachusetts
Executive Office of Energy & Environmental Affairs
Department of Environmental Protection
One Winter Street Boston, MA 02108 * B17-292-5500
DEVAL L PATRICK ' RICHARD K SULLIVAN JR.
Governor • • ¦ - ' Secretary
TIMOTHY P, MURRAY KENhffiTH L KIMMELt
Lieutenant. Gtwor nor ' Commisstorw
To: Matt Schweisberg, EPA Region 1
From; Philip Weinberg, MassDBP, 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, subtidal 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 DP A. 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.
TWs Information Is available In alternate format, Call Michelle Waters-Ekanem, Diversity Otrectofj at 617-292-8761. TDD# 1-886-539-7622 or 1-617-S74-68S8
MassDEP Website: WYW.mass.gov/dep
Printed on Recycled Paper
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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 DP A 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
Alternative{ "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
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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,Q7(lXe)> 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 bcnthic 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. ,
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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
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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
th
salt marsh. Therefore, the discussion in the Department's August 25 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"-type 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 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, 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
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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 15t,rand June 15fll 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.
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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, 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.
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Commonwealth of Massachusetts
Executive Office of Energy & Environmental
Affairs
DEPARTMENT OF ENVIRONMENTAL PROTECTION
OMR WTNTFR STWF.RT MOSTDM MA n?tOH fi'7.9{19.-KMin
DEVALL. PATRICK
Governor
IAN A. BOWLES
Secretary
TIMOTHY P. MURRAY
I.iflUfflnanf. Govfirnni*
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 Teiminal-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 b available in alternate format. Call Donald M, Gomes, ADA Coordinator at6J7-S56-10S7. TDD# 1-866-SJJ-7622 or I-617-574-S868.
MassDEP on the Wortd Wide Web: http://www.mass.gov/cfai)
Printed or> Recycled Paper _ x"
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Sincerely,
(/
Gjbiy Moran,
eputy Commissioner for
Operations and Environmental Compliance
Cc: 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
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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, Governor
IAN A. BOWLES
Secretary
LAURIE BURT
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 and 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
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
o Pnnted on Recycled Paper
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\
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 docs 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
(CAD) 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
PCBs.
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.
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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.
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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 OMR 9.07(9) as reuse of
sediment within a DP A. 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
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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 marsh, 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(1 )(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 314 CMR 9.G7(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(1 )(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
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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 15th and June 15tn 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..
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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-watcr 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 verily 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 ale wife 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
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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 S WPPPs 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 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 areaiand a
monitoring location shall be established outside of and within 15-
feet of the silt-curtain.
ii. Turbidity shall be measured, using an optical baekscatter 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:
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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.
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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
VI-20
Reference plus 15 NTUs
21-30
Reference plus 10 NT.Us
>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
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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 Flan: 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
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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.
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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. "
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EPA Final Determination for the South Terminal Project
New Bedford 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)
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ENVIRONMENTAL PROTECTION AGENCY
REGION I
' i
SOUTH TERMINAL PROJECT, NEW BEDFORD HARBOR
FINAL 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") final evaluation and
compliance determination for the State Enhanced Remedy, New Bedford Harbor - South
Terminal project proposed by the Commonwealth of Massachusetts. This final determination
finds that the project complies 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 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
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.
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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). As of the date of EPA's Draft Determination, the Commonwealth had 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). Between the Draft Determination and the Final Determination, the
Commonwealth provided numerous additional documents. A list of significant submissions
referenced in EPA's Final Determination, including this Appendix E, can be found in Table 3 of
. the Final Determination. The relationship between the proposal to construct a marine terminal
and the SER is discussed more fully in EPA's November 19, 2012 Final Determination for the
South Terminal Project.
The project's components include:
1. Installation of a 1000 linear foot bulkhead in the Harbor adjacent to an existing 200
foot bulkhead to form a 1200 linear foot bulkhead, and placement of approximately 134,000
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 21.5 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 |n 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."
2
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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 CDF1:
Intertidal area:
Shallow, near-shore sub-tidal area:
Salt marsh:
Total:
For areas to be filled for construction of the main terminal site:
Freshwater wetlands
Total waters to be filled:
2.07 acres
4.73 acres2
0.11 acres
6.91 acres
0.106 acres
7.016 acres
For areas to be dredged (depths are expressed in feet):
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
Shallow, near-shore sub-tidal area (to be dredged from between
-I and -6 MLLW to -30 to -32 MLLW)(Quayside Areas): ' 3.68 acres3
Total:
Total Permanent Impacts:
12.14 acres
19.16 acres
1 These figures have changed slightly from the information presented in EPA's Draft Determination as a result of a
site visit conducted by EPA and the Commonwealth on September 13.2012.
2 4.06 acres will be completely filled and 0.67 acres will be dredged and partially filled.
3 The Commonwealth had also sought approval to dredge 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. As discussed in Appendix Q of the Final Determination, EPA is not
approving that additional dredging at this time.
3
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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): " • 8.54 acres4
Deeper, sub-tidal area (to be dredged from between -20 to -25
MLLW to-30 MLLW)(South Terminal Channel): 7.01 acres.5
Deeper, sub-tidal area (to be dredged from between -26 to -30
MLLW to -30 MLLW)(Maintenance Dredging of Federal Navigation
Project): 13.3 acres6
Total: 35.02 acres
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. .
4 The Commonwealth had also sought approval to dredge an additional 0.22 acres to accommodate additional
excavate from the potential expansion of the deep-draft quayside dredging area and potential additional widening of
the deep-draft channel. See MassDEP 2012b, pp. 3-4. As discussed in Appendix Q of the Final Determination, EPA
is not approving that additional dredging at this time.
5 The Commonwealth had also sought approval to dredge 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. As discussed
in Appendix Q of the Final Determination, EPA is not approving that additional dredging at this time.
6 Some or all of the 13.3 acres of dredging may not need to occur depending on the elevations in the existing
channel, so this is the worst case scenario. The Commonwealth had also sought approval to dredge an additional
1.74 acres in the Federal Channel associated with potential additional widening of the deep-draft channel. See
MassDEP 2012a at pp. 2-3, 4-5, and 10. As discussed in Appendix Q of the Final Determination, EPA is not
approving that additional dredging at this time.
4
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2.4 Scope of Analysis: This CWA § 404 and R1IA § 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 clean
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 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
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 a 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 several areas on the upland portion of the site that require
remediation to address PCB and petroleum-related contamination. One of these areas, southwest
5
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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 0.11 acre freshwater wetland 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 acre) in area.7 EPA confirmed the results of the investigation during a site visit
on September 13,2012. 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, flood
flow 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/resources7l01ist3.pdf. The
7 The Commonwealth characterized this wetland as "isolated" and therefore not subject to federal jurisdiction.
However, given that it is located within approximately 150 feet from the Harbor's high tide line, EPA believes that
it is adjacent to (i.e.. neighboring) a traditional navigable water and therefore subject to CWA jurisdiction.
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)(10). The City of New Bedford has a long term CSQ control plan and has been working to reduce CSO
discharges through wastewater collection system improvement projects.
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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, Finfish, Shellfish, Benthie 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
EPA on July 11, 2012. The salt marsh resource is estimated to be approximately 0.41 acres in
size. (MassDEP 2012o.) ¦ 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 alterniflora. Spartina patens, and trace amounts of Salicornia yirginiana.
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
pseudoharengus
Atlantic herring
Clupea harengus
Blueback herring
Alosa aestivalis
Winter flounder
Pseudopleuronectes
omericanus
Atlantic menhaden
Brevoortia tyrannus
Mummichog
Fundulus
heteroclitus
Tautog
Tautoga onitis
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Striped killifish
Fundulus majalis
• Black sea bass
. Centropristis striata
~Four-spined
stickleback
Apeltes quadracus
Bluefish
Pomatomus saltatrix
scup
Stenotomus
chrysops -
Butterfish
Peprilus Iriacanthus
Atlantic silverside
Menidia menidia
Striped bass
Morone saatilis
As part of a Draft Environmental Impact Report ("DEIR"), Massachusetts Coastal Zone
Management (MassCZM) conducted fmfish sampling in New Bedford Inner Harbor for a 12
month period between 1998 and 1999 (MassCZM, 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 (MassCZM, 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
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
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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
mummichog.
Table 3C: Percent of fish caught in trawl samples from New Bedford Harbor from June
1998 to May 1999 (MassCZM, 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 ale wife (Howes and Goehringer, 1996). MassCZM sampling in 1998-1999 found alewife in
the fall sampling, and rainbow smelt in the spring and the summer (MassCZM, 1999). White
perch was collected in the spring, while blueback herring and American shad were not observed
during the sampling (MassCZM, 1999).
Endangered species: The National Marine Fisheries Service recently listed the Atlantic sturgeon
(.Acipenser dxyrinchus 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 initiated consultation with NMFS and provided its biological assessment
on October 31, 2012. As discussed further in Section 5.3 below and Appendix K2, EPA has
concluded that with appropriate mitigation measures, the project is not likely to cause adverse
effects to the Atlantic sturgeon. NMFS confirmed EPA's conclusion on November 14, 2012.
Benthos: The term benthos refers to organisms that live in or on the seafloor. 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
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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 harvesting of shellfish has been banned.
Sampling sponsored by MassCZM in 1999 was conducted in New Bedford Inner Harbor to
characterize the general condition of the benthic eommunity. 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
Strehlospio benedicti and Mediomastus ambiseta (MassCZM, 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 detaijs of the shellfish resource are
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).
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 edidis
Bivalvia
Modiolus modiolus
' Bivalvia
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Crepidula fornicate
Gastropoda
Retusa canalicular
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 (MassDMF) in the late
1990s showed a large abundance of commercial shellfish throughout New Bedford Inner Harbor.
Quahogs (.Mercenqria mercenaries) were the dominant species found throughout the Harbor, but
soft shell clarn (Mya armaria), 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 MassDMF. 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).
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
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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 is discussed in Section 5.3
below and in Appendix K(l). ' *
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
i
Chimney swift
Eastern kingbird
Eastern towhee
Gadwell
Gray catbird
Great crested
flycatcher
Killdeer
Least tern
Mallard
Nelson's sparrow
Northern flicker
Saltmarsh sparrow
Snowy egret
Spotted sandpiper
Willet .
Willow flycatcher
Wood duck
\y
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 fdl
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
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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").
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 feasibility 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
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.
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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.)
The Region has 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 (Rl); 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) (MassDEP 2012). 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 agrees that South Terminal is the LEDPA for the reasons
set forth below.
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/nprth-
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
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 29-3Q.) 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 greater than 20 acres and likely approximately 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,
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.
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as discussed above. Therefore the Region has determined that this site is not practicable in light
of the 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 Pott 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 0.11 acre of salt
marsh and 6.8 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 18.31 acres of shallow sub-tidal habitat and 7.01 of deeper subtidal areas that would
1 *3
be dredged for the Commonwealth's preferred project. (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 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
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.
Most important in EPA's analysis 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 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.)
The Region has determined that this site is not practicable to meet the basic project purpose
u Although the South Terminal Project also involves the potential for up to 13.3 acres of maintenance dredging in
the Federal Navigation Project, this dredging is expected to result in only minimal temporary impacts.
15
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because of the presence of unsuitable substrate.13 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.14
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 determined
that this site is, not practicable due to the unsuitable substrate, we have not reached any
conclusions about the effect of these factors on the practicability of this alternative.
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.
13 In the Draft Determination, EPA also tentatively concluded that another basis for rejecting the alternative on the
grounds of practicability is that only 13-14 acres of land are 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.' However, the
Commonwealth does have eminent domain authority; it is not clear how long it would take to exercise such
authority. In this Final Determination, EPA is not reaching a conclusion regarding the availability of this additional
land.
14 An additional site in Boston Harbor considered in the Tetra-Teeh 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.
16
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Because the acreage at the Fall River State Pier is only 9 acres and 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 has determined 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 2# 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. 15 (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 assembled units would extend 250 feet above the transport barge.
(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
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 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, Fair haven
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
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. ' ,
15 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. . ' '
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¦ For all of these reasons, the Region has 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.
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 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 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 has determined 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 determined that these issues render the Pope's Island .
site impracticable.16
16 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
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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
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 4 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 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 11.1 contiguous acres of existing upland and 6.91 acres of additional land created
by construction of a CDF in adjacent waters. There are an additional 1.3 acres that comprise a
'transportation corridor," and another 9.1 acres of upland west and south of the main portion that
would be used for wind blade lay-down. The overall facility is approximately 28.45 acres. The
configuration of the facility and the specific parcels and acreages,are depicted in MassDEP
2012m.17 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. (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.)
The Commonwealth has stated that it is committed to developing the terminal facility on parcels
identified in Configuration 2A. It has also stated that "[t]he Commonwealth commits to securing
its legal interest in all parcels that comprise the South Terminal site prior to commencement of
any activities covered under the final EPA determination for the South Terminal," and it
confirmed that "it has the requisite taking .authority to acquire any such parcels for the benefit of
the South Terminal Project." See MassDEP 2012i. Although the Commonwealth does not yet
have site control, EPA believes it is reasonable to issue its Final Determination based on
assurances that the Commonwealth has the necessary taking authority to obtain control.
whether the resulting aquatic impacts from terminal construction at these sites would be greater or less than what is
proposed for South Terminal.
xl This configuration A2 is slightly different from configuration A, one of the two alternate configurations discussed
in the Draft Determination,
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However, to ensure that no harm to the aquatic environment occurs as long as the actual site
control is uncertain, EPA is conditioning its final approval by requiring that the Commonwealth ¦
demonstrate full site control before it commences any work in waters of the U.S. See Section 20
below.
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 0.11 acres of salt marsh, 2.07 acres of
intertidal habitat, and 4.06 acres of shallow subtidal habitat in order 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; see also Appendix Q.) 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 a concrete
blanket to prevent erosion of the area under the concrete decking. See MassDEP 2012j,
Appendix 2 at page 2. 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 addition, the construction of the main terminal
facility adjacent to the CDF will involve filling approximately 0.11 acres of freshwater wetlands.
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 18.31 acres of shallow sub-tidal habitat and 7.01 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 13.3 acres of deeper subtidal
areas in the Federal Navigation Project channel. The Commonwealth also proposes to dredge
8.54 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
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
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18
temporary impacts.
EPA has determined that the South Terminal site is practicable in light of the basic project
purpose. The Commonwealth has the authority to obtain control of the site, and EPA is
conditioning its final approval on the Commonwealth's demonstration that it has control of all
necessary parcels necessary, for the terminal site before it conducts any work in waters of the
U.S. EPA has further determined that the South Terminal site represents the LEDPA, based on
the 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,
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 6.35
acres of waters to create uplands; partially filling approximately 0.67 acres of waters; and
deepening through dredging approximately 38.62 acres of waters. There will also be temporary
impacts associated with dredging an 8.54 acre confined aquatic disposal (CAD) cell and filling
several existing CAD cells, and creating compensatory mitigation areas.
. 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
18 As discussed above in footnotes 3-6, and in Appendix Q, the Commonwealth also sought approval of additional
dredging that it does not now intend to conduct but may decide to do so in the future. EPA is not approving that
additional dredging at this time because of its speculative nature, but EPA is willing to consider modifying the Final
Determination in the future to allow the additional dredging if the Commonwealth provides new information that
'would better justify the expansion.
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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; and
- • Storm water runoff from construction vehicle washing,, maintenance and storage
refueling areas could contribute oil, grease and fuel and foaming.19
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: '
• From January 15 through June 15 of any year, absorbent booms and silt curtains will
encircle areas where any dredging, CAD cell capping, and disposal of contaminated
sediments into CAD cells will occur, to prevent the migration of sediments from the work
area to the rest of the harbor. Stringent turbidity levels must be satisfied either inside or
outside the silt curtains (depending on the activity). From June 16 through January 14 of
any year, when silt curtains are not in place, stringent turbidity levels must be satisfied at
the edge of a 200-foot mixing zone, and control measures must be implemented if
necessary to ensure compliance with those levels.
• ' For CDF construction, and for capping to create intertidal, subtidal, and winter flounder
spawning habitat, absorbent booms and silt curtains will encircle areas of work at all
times of the year, for the duration of the work. Stringent turbidity levels must be satisfied
within 15 feet of the outer edge of the silt curtain.
• Erosion and migration of excavated, dredged and stockpiled materials will be controlled
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.
• From January 15 through June 15, silt curtains, bubble curtains and fish weirs will be
erected around areas of dredging, filling, and capping in water depths shallower than -5 -m
MLLW to prevent fish, particularly winter flounder, from entering the project area. Fish
startle systems will be deployed before construction begins to move fish out of harm's
way. Weekly monitoring will occur to ensure the barriers maintain their physical
integrity and that no fish have made it into the project area. Within the barriers, stringent
19 The Draft Determination also identified blasting as a potential impact on water quality, but the Final
Determination does not authorize blasting. See Section 6.2.2 below and Appendices H and 1 for further discussion.
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turbidity levels must be satisfied at the edge of a 200-foot mixing zone, and control
measures must be implemented if necessary to ensure compliance with those levels.
• 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 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
Permit20 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, capping, and filling activities are conducted consistent with the Performance
Standards in Appendix C of EPA's Final Determination.
5.1.2 Habitat, Fishery, and Shellfish Impacts: EPA's water quality
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)21. In this case, there will be a
permanent loss of approximately 7 acres of aquatic habitat as a result of the construction of the
South Terminal confined disposal facility ("CDF') and adjacent terminal site development, as
well as temporary and permanent impacts to approximately 47 acres of 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 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.22 Therefore, the project would not violate the
federal and state antidegradation provisions.
Based on the foregoing, EPA has determined that the proposed project will not cause or
contribute to violations of water quality standards.23
20 National Pollutant Discharge Elimination System General Permit for Discharges from Construction Activities,
effective February 16, 2012.
21 EPA, Questions & Answers on: Antidegradation, page 5, 1985.
22 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 secondaiy and cumulative impacts.
23 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.
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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 dougallu) 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. See Appendix K(l). For the reasons discussed in the final BA, EPA has concluded that the
proposed South Terminal project may affect the roseate tern, but is unlikely to adversely affect
the species. EPA transmitted its final Biological Assessment to FWS on August 2, 2012, and
FWS concurred with-EPA's conclusion in its letter dated August 29, 2012.
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. After
obtaining technical assistance from NMFS, EPA initiated informal consultation and transmitted
its Biological Assessment and conclusions to NMFS on October 31, 2012. See Appendix K(2).
As discussed in the BA, EPA concluded the proposed South Terminal project may affect the
Atlantic sturgeon but, with specified mitigating measures, is unlikely to adversely affect the
species. NMFS concurred with EPA's conclusions by letter dated November 14, 2010. 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. i0(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
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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.
All totaled, approximately 0.11 acres of salt marsh, 0.11 acres of freshwater wetlands, and
approximately 6.13 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 (partially filled) 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 GAD cell. All of
these impacts will be temporary and a significant improvement in sediment quality by isolating
the contaminated sediments from the environment. There will also be temporary impacts to 0.04
acres of an existing salt marsh during construction of the salt marsh mitigation area at River's
End Park.
Finally, approximately 47 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 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.
i / "
6.1.4 Alteration of Current Patterns and Water Circulation: The proposed
construction of the South Terminal Project as well as the dredging of associated navigational
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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 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, EPA believes that this
project will have limited impacts on wider current and water circulation patterns.
6.1.5 Alteration of Normal Water Fluctuatioiis/llydroperiod: The proposed
construction of the South Terminal Project 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,, 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 completed informal
consultation with FWS regarding the roseate tern.(see Section 5.3 above) and obtained FWS's
concurrence with EPA's determination that the proposed NBH-South Terminal project may
affect the roseate tern, but is unlikely to adversely affect the species. EPA also completed
informal consultation with NMFS regarding the Atlantic sturgeon and obtained NMFS's
concurrence with EPA's determination that the proposed NBH-South Terminal project may
affect the Atlantic sturgeon but, with specified mitigating measures, is unlikely to adversely
affect the species See Appendix I, Appendix K(l), and Appendix K(2) for additional
information.
6.2.2 Effect on 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 Secti'on 3.2 above). New Bedford Harbor substrates also
provide spawning and nursery habitat for economically-important fishery species such as winter
flounder (Pseudopleuronectes americanus), wiridowpane flounder (Scopthalmus aquosus), seup
(Stenotomus chrysops), and black sea bass {Centropristus striata). (For more details see
Appendix H.)
To construct the South Terminal Project, approximately 0.11 acres of salt marsh and 6.80 acres
of intertidal and sub-tidal benthic habitat will be permanently impacted by complete or partial
filling, pother 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 habitat 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. There will also be temporary
impacts to 0.04 acres of an existing salt marsh during construction of the salt marsh mitigation
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area at River's End Park. An additional 47.16 acres of subtidal benthie habitat will be deepened
associated with the dredging of adjacent navigation channels and mooring areas and construction
of CAD cell #3. These various dredging and filling activities will result in either the removal (by
dredging) or burial (by filling) of many of the benthie prey species. The benthie 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. Epibenthie
invertebrates with limited mobility (snails, sea stars, sand dollars, etc.) will also suffer significant
mortality from the dredging. More mobile epibenthie 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 are of special concern.
Regionally, the number of winter flounder has been greatly reduced in recent years. Winter
flounder, which typically spawn in water depths between 0.3 and 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 16.87 acres of winter flounder spawning and nursery
habitat.24 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 benthie species (worms, gastropods, mollusks, etc.) will
recolonize appropriate portions of the construction area. More mobile benthie species (crabs,
lobsters, shrimp,, etc.) as well as juvenile and adult fish will leave the construction'area and
forage in adjacent unimpaeted areas. As soon as the construction ceases, these more mobile
creatures will return to the area. Because of the potentially severe long term impacts on winter
flounder and shellfish habitat, EPA is requiring compensatory mitigation to ensure that
significant impacts will not occur (discussed further in section 7 below).
In addition to causing impacts due to habitat loss, the dredging and filling activities have the
potential to cause adverse impacts to aquatic life due to noise associated with pile driving and
24 The Commonwealth has stated that there would be 11.75 acres of permanent impact to winter flounder spawning
habitat. The Commonwealth's estimate does not include the 8.46 acres of dredging to -14 MLLW in the shallow-
draft quayside area and tug channel. EPA includes this acreage in its estimate of permanent impacts because of the
likely secondary impacts. Resuspension of sediments due to prop wash and vessel traffic will result in the burial of
winter flounder eggs; even minimal burial of winter flounder eggs can lead to mortality.' Berry et al., 2011.
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rock removal. To minimize the noise impacts to Atlantic sturgeon and other finfish from pile
driving to construct the CDF, the Commonwealth is required to use vibratory hammers for the
installation of sheet piles, and to eliminate the need to drive pipe piles into bedrock, a "rock
socket" installation method will be used. This technique involves drilling a "rock socket" in
place, placing the piling in the hole' and then grouting it in place. See Appendix I for more
information.
In the Draft Determination for this Project, EPA expressed concerns about potential adverse
- impacts to fish species from the use of blasting to remove fractured rock from within the
footprint of the dredge area. NMFS also expressed concerns about fisheries impacts from
blasting, and the Corps of Engineers expressed concerns about potential impacts from blasting on
the Hurricane Barrier. In this Final Determination, EPA is prohibiting the use of blasting as a
method of rock removal because there is not sufficient information to enable EPA to reach a
judgment about the potential effects of blasting on the aquatic environment and on the nearby
Hurricane Barrier. If blasting is ultimately deemed necessary, the Commonwealth will need to
seek a modification of the Final Determination, and will need to provide additional information
on potential impacts from blasting and mitigation steps needed to minimize or eliminate those
impacts.
In lieu of blasting, the Commonwealth has identified four alternate methods of rock removal,
commonly referred to as Hoe Ram, Bucket Removal, Drill and Fracture, and Cutter Head
Dredging. (MassDEP 2012g.) Based on the Commonwealth's submission of results from an.
acoustical study (MassDEP 2012j, Appendix 3), EPA finds the predicted environmental impacts
resulting from any of these techniques to be substantially lower than those predicted for blasting
and are unlikely to cause adverse effects on the Atlantic sturgeon and other finfish. On
November 16, 2012, the Commonwealth submitted the final acoustic modeling report,-which
includes the details for the model, assumptions, and how the model works. (MassDEP 2012s.)
Due to the late date of the submission of this report, EPA has not had adequate time to review it
and confirm the results of the study. EPA intends to review the report expeditiously. EPA is
conditioning its approval on the requirement that the rock removal activities may not proceed
until EPA evaluates the acoustic modeling study that the Commonwealth submitted and
determines the acceptability of the modeling methods and results, to ensure that the noise
impacts will not adversely affect fish species. See Appendix H and Appendix I for more
information.
J
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 0.11 acres of salt marsh wetlands will.be permanently
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filled as part of the creation of the confined disposal facility/marine terminal. Also,
approximately 0.30 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 0.11 acre in area, will be filled.25
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). The existing salt marsh resource is
approximately 0.41 acres in size. Soil sampling indicates that the wetland soils are contaminated
with PCBs and metals (MassDEP 2012, Appendix 36, Table's 2A and 2E). Wetland vegetation
present includes Spartina aliernifloru, Spartinapatens, 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. (MassDEP 2012c),
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 acre) in area.26 During a September 13, 2012 site visit,
EPA confirmed that the wetland is approximately 0.106 acres. 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 have 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
25 ¦
• In the Draft Determination, EPA referred to an additional 0.4 acre freshwater wetland on one of the properties
that the Commonwealth was considering incorporating into the terminal site, and noted that if the parcel were
included, the impacts of filling that wetland would need to be evaluated and additional mitigation would need to be
implemented. Since then, the Commonwealth has decided not to include that parcel as part of the terminal site.
26 As noted in footnote 7 above, EPA considers this wetland to be adjacent to a traditional navigable water and
therefore subject to federal jurisdiction.
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and the surrounding landscape. .
Wetland mitigation: The Commonwealth initially proposed a compensatory mitigation plan to
address the project's impacts to the salt marsh and freshwater wetlands through.salt marsh
restoration and enhancement in the vicinity of the existing tidal tributary adjacent to the
Hurricane Barrier. However, following issuance of EPA's draft determination, the
Commonwealth abandoned that plan and proposed an alternative compensatory mitigation plan.
See MassDEP 2012r. Under this plan, the Commonwealth will restore and create approximately
1.02 acres of salt marsh adjacent to the Acushnet River at River's End Park in New Bedford.
The plan and EPA's conclusions regarding the adequacy of the mitigation are discussed in more
detail in Section 7,3 below.
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 2.07 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
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
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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 hot 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;
and the reseeding of shellfish. These mitigation measures will be located in areas without
substantial fisheries resources outside of the main navigation channels or in areas that will be
temporarily closed to shellfishing. These-mitigation projects should not substantially affect
recreational or commercial fisheries users.
6.4.3 Effects oil Water Related Recreation: The construction of the South
Terminal Project 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.27 • '
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
27 The Commonwealth no longer-plans to use the Gifford Street boat ramp parcel as a lay down area for storing wind
turbine components; therefore the Project will not affect recreational boaters who use this parcel for access to the
Harbor. . . .'
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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.
The Commonwealth has proposed to manage construction consistent with requirements in EPA's
2012 Construction Storm Water General Permit and the Massachusetts Storm water 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 crashed 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
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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. Depending on future
activities at the site upon its completion, the facility may also become subject to NPDES permit
requirements for other discharges, including storm water requirements for discharges associated
with industrial activity. The operator of the facility would need to obtain any required NPDES
permit or general permit authorization from EPA before any regulated discharge could
commence.
6.5.2 Dredging: The largest quantity of secondary impacts will result from the
proposed dredging associated with the construction of South Terminal. Up to 47 acres of
seafloor will be disturbed by dredging. Approximately 3.68 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 and benthic species. To minimize these
impacts, the Commonwealth will comply with performance standards set forth in Appendix C of
EPA's Final Determination. Among other things, these performance standards provide for
turbidity levels that must be satisfied; the use of protective measures such as silt curtains and
absorbent booms from January 15 through J une 15 of any year, and at other times when
necessary to achieve the turbidity levels; and the use of an "environmental" bucket when
dredging contaminated fine sediment. EPA believes the turbidity levels are sufficiently
protective. Based on prior dredging conducted in this system using similar control technologies,
total 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 (both with and without the use of silt curtains) 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 that meets the turbidity levels and that
implements the aforementioned control techniques where necessary can be done with limited
impacts to the water column and aquatic species. Monitoring will be conducted during
construction to ensure that the Commonwealth's dredging performance standards are met.
In addition, to protect winter flounder during the sensitive spawning period, the Commonwealth
will erect silt curtains, bubble curtains and fish weirs around any dredging or filling work in
areas that are shallower than -5 meters Mean Lower Low Water ("MLLW") between January
15th and June 15th of any year, to prevent fish, particularly winter flounder, from entering the
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work area'. Fish startle systems will be deployed, before construction begins, to move fish out of
harm's way-. (MassDEP 2012q.) From January 15 to June 15, weekly monitoring will occur to
ensure the barriers maintain their physical integrity and that no fish have made it into the work'
area. As discussed in Appendix H of EPA's Final Determination, EPA believes these techniques
will ensure that dredging during this sensitive time period will not cause more than minimal
impacts to winter flounder and other finfish.
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, the Commonwealth will
implement an Invasive Species Management Plan. Pursuant to this plan, the Commonwealth
will conduct annual surveys of the pilings at the facility to inspect for the presence of invasive
species. A 3 person dive team will be deployed with video and still cameras to 'document marine
life on the pilings. The dive team will have copies of the Massachusetts Aquatic Invader
Identification cards with them on site. One third of the total number of pilings will be inspected
on any given year, so 100% of the pilings will be covered in 3 years. It is a virtual certainty that
the pilings will be colonized by invasive species. However, the intent of the inspection is to
identify "new" invaders, species that have not yet been documented in New England. Results of
the annual surveys will be sent to the Invasive Species Coordinator at the Massachusetts Office
of Coastal Zone Management ("MassCZM"), MIT Sea Grant, and EPA. If the survey identifies
an invasive species not previously identified in New England, the Commonwealth will work with
MassCZM to assess the ecological risk posed by the new invasive species and to develop and
implement an invasive species control plan for the new species. See MassDEP 2012r, "New
Bedford Marine Commerce Terminal Invasive Species Monitoring Plan — Facility, Bulkhead and
Pilings, "
In addition, there is a potential for invasive species to intrude into the salt marsh compensatory
mitigation area at River's End Park. The Commonwealth has incorporated an Invasive Species
Management Plan ("ISMP") into its Final Compensatory Mitigation Plan described in Section
7.3. See MassDEP 2012r, Appendix 12. The ISMP identifies existing vegetation the vicinity of
the project area, and notes that while many are indigenous and non-invasive, there are several
species present within the upland portion of the project area which pose,a threat of invasion. The
ISMP also identifies species that pose a threat of invasion due to previous land disturbances in
the area and their presence and persistence in the watershed, as well as other potentially invasive
species that will be monitored. Of the numerous species identified, due the tidal nature of the
creation and restoration project, common reed (Phragmites australis) is identified as a species
with especially high potential to spread into the mitigation area, potentially undermining its
ecological integrity.
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Invasive species control will be overseen by a wetland scientist with expertise in the area'of salt
marsh restoration and invasive species control. The ISMP establishes a monitoring program for
the mitigation site, consisting of baseline monitoring followed by inspections three times.
annually in May, July and September for each of the five years following the establishment of
the mitigation project. Methods of invasive species control are identified, and performance
standards for the mitigation site and invasive species control are established. Annual monitoring
reports will be submitted to EPA for review and approval. The ISMP notes that monitoring
beyond five years may be necessary, to confirm the efficacy of any necessary corrective actions
that may be needed to address failure to meet performance standards. Two years of follow-up
monitoring of corrective actions is required to assure the success of any corrective actions.
EPA believes the ISMP will 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.
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
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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. The Commonwealth has designed the 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). Based upon this
information, EPA believes that the interference with other adjacent boating users 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.
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
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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 part 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 F.SDs. 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.28 To date,
EPA has constructed two CDF facilities, the sediment dewatering CDF and the Sawyer Street
CDF. The latter is a pilot CDF facility used for the temporary disposal of contaminated dredged
sediments. Approximately 2.05 acres of waters of the United States were filled to create the
sediment dewatering CDF, and approximately 2.21 acres of waters were filled to create the
Sawyer Street CDF., 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 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"). FCB-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
28 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.
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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). . 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 and
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 Env ironmental Impact Report for New Bedford and
Fairhaven, ("DMMP") issued by the Massachusetts Office of Coastal Zone Management.30
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
29 Except for this proposed South Terminal project and those projects already included in the completed Phase II and
Phase 111 SER work plans, EPA's conclusions and findings in this Final 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.
30 The DMMP may be found in the'Administrative Record for this Final Determination and at
www.mass.gov/cam/dredgereports/2003/feirnm-f.htm. • -
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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 FairhavenMunicipal
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.
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,' apd 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 CDFs) 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 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
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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 (sec Section 4.3 above for more details: see also' MassDEP 2012,
MassDEP 2012a, and MassDEP 2012b). EPA's determination that the South Terminal
alternative is the least environmentally damaging practicable alternative ("LEDPA") is set forth ,
in Section 4 above. - _ .
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 taken
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 0.67 acre 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 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.
Impacts have been further minimized as a result of EPA's decision not to approve the
-Commonwealth's request for approval of additional dredging to expand the channel width and
the quay-side deep-draft dredge area in anticipation of a future need to accommodate larger
vessels. As discussed in Section 2 above and in Appendix Q, EPA has decided not to approve
such expansion at this time but is willing to entertain a request to modify the Final Determination
in the event that new information becomes available that would better justify the need for
additional dredging. ¦
EPA has determined that the project as authorized by the Final Determination 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
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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 conditions section (Section 20) of this decision document for details on these additional
measures to be taken,
7.3 Compensatory Mitigation: The Commonwealth submitted its Final Compensatory
Mitigation Plans on November 14, 2012, to provide compensatory mitigation for unavoidable
direct and secondary impacts to the various resources affected by the project. (MassDEP 2012r.)
EPA's evaluation of the final Compensatory Mitigation Plans is described below. EPA is
requiring that these plans be implemented as a condition of its approval of the Project. See
Section 20 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). According to the
Commonwealth's final mitigation plan to address impacts to winter flounder spawning habitat,
the Commonwealth will place clean sand excavated from the CAD cell and navigational
dredging to fill in an area south of the hurricane barrier to reduce the existing depths. 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 will create new winter flounder
spawning habitat over 22.73 acres of the seailoor, to compensate for the loss of winter flounder
habitat associated with dredging and with filling to construct the CDF. The Project will result in
approximately 16.87 acres of impact to winter flounder spawning habitat.31 As a result, the
Commonwealth has committed to a slightly greater than 1 to 1 replacement ratio of winter
flounder spawning habitat. 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 ail 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 that benthic community
ecology follows is 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
polychaetes (Rhoads and Germano, !986). Full recovery to a Stage III successional community
31 These impacts may increase if the Common wealth obtains future approval to increase dredging, as discussed
above. EPA is requiring the Commonwealth to provide sufficient mitigation now to address impacts from both the
approved and potential expanded dredging, to avoid adverse impacts that could result from creating some habitat
initially and then doing additional work at the same areas at a future date.
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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 and at several control stations. Sampling
will begin prior to construction to establish a baseline and continue for 3 years post construction.
The data will be statistically analyzed for differences between sampling locations and through
time.
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. 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 adequate winter flounder spawning habitat is replicated.
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 plan will replace
at a slightly greater than 1 to 1 ratio the quantity of winter flounder spawning habitat impacted
by the proposed project. EPA expects that the quality of the newly created spawning habitat is
likely to be superior to what it is replacing as it will be built with clean material free from any
PCB contamination. EPA has determined that this mitigation plan adequately offsets the
unavoidable impacts to winter flounder spawning habitat.
7.3.2 Intertidal habitat creation and near-shore, shallow, sub-tidal
enhancement; According to the Commonwealth's final mitigation plan to address impacts to
intertidal and near-shore, shallow subtidal habitat, the Commonwealth will place clean sand
excavated from the navigational dredging in an area referred to as the OU-3 Hot-Spot. 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 2.07 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 such habitat. This action
will also serv e 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 a beneficial effect from the proposed habitat creation arid enhancement.
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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. If, after 5 years, there have
been significant changes to the newly created habitat (especially the created intertidal area), the
Commonwealth must supplement the area with additional clean sand to ensure that the area of
habitat created adequately replaces 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 determined that equivalent compensation is necessary. The
Commonwealth's plan will compensate for these impacted habitats in a slightly greater than 1 to
1 ratio. 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 determined that this
mitigation will adequately address the proposed unavoidable impacts to intertidal and near shore
shallow sub-tidal habitats.
7.3.3 Shellfish mitigation: Shellfish arc 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). Nine to ten million shellfish, which is the range of expected shellfish loss
from construction of the Project, represent a substantial prey base, for demersal fish.
According to the Commonwealth's final mitigation plan to address impacts to the shellfish
resource, the Commonwealth will purchase and plant approximately 24,542,803 seed quahogs,
20-25 mm in size, in multiple locations south of the hurricane barrier. The number of seed to be
planted is based on an expected 40% survival rate for seed clams of this size. The planting will
occur in 10 separate sub-areas of approximately 150 acres each, on a rotational basis over 10-15
years. Each area that is planted will be closed to shellfishing for three to six years to allow for
the seed to grow and spawn and reach legal harvest size. Phasing of the shellfish mitigation ' -
effort is reasonable for several logistical reasons. Currently, the Commonwealth's hatchery can
reliably produce about 2 million spat a year. They do not have the facilities in place to
dramatically increase that number. The success of this effort depends on not just the quantity of
shellfish spat, but also the quality of it. At current production rates, the Commonwealth
produces high quality spat. Substantially scaling the operation upwards may risk compromising
the quality of the product. Finally, for management purposes, the Commonwealth will be
closing areas that are seeded for 3 years post seeding/ This is done'to allow the seed stock to
mature. Phasing the seeding operation allows the Commonwealth to stagger the closures, in
order to minimize the impact to recreation and commercial fishermen.
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EPA believes this plan will adequately compensate for the loss of shellfish due to the Project.
The shellfish mitigation plan may'be modified in the future in two possible ways. The first
potential modification of this shellfish mitigation plan relates to the NMFS's desire for the
Commonwealth to include oysters as part of this mitigation effort, since oysters will be lost
during construction of the Project. Accordingly, the Commonwealth intends to develop a plan
for an oyster reef, which would represent somewhere between 10-20% of the total shellfish seed
to be planted. Plan details regarding the number of shellfish, the apportionment of the species,
and the design and location of the oyster reef would be developed under the guidance of EPA,
NMFS, and MassDMF. The Commonwealth will submit the oyster reef plan to EPA for
approval, and the shellfish mitigation plan would be modified accordingly.-
The second potential modification relates to the Commonwealth's plan to adjust the number of
shellfish to be seeded if the full extent of the dredging as described in the Commonwealth's June
18, 2012 submission (MassDEP 2012a) is reduced. In that event, the Commonwealth would
recalculate the expected shellfish impacts from a smaller dredge footprint and then size the
mitigation effort accordingly. This approach is acceptable to EPA, provided that the
Commonwealth provide EPA with information to document the reduction in impact and the
planned reduction in mitigation and obtain EPA's written approval. In particular, because EPA
is not, at this time, authorizing expansion of the deep-draft quayside dredging area and additional
widening of the deep-draft channel (see footnotes 3-6 above), the Commonwealth may calculate
the related reduction in shellfish loss and obtain EPA's approval of an equivalent reduction in
shellfish to be seeded.
7,3.4 Wetland mitigation: Compensatory mitigation for the project's impacts to
wetlands at the South Terminal facility will be accomplished through a restoration and creation
mitigation project at River's End Park, situated just south of Main Street, and east of River Road
along the Acushnet River in New Bedford, Massachusetts. The goal of the River's End Park Salt
Marsh mitigation project is the creation and restoration of 1.02 acres of salt marsh. Currently, the
site contains approximately 0.402 acres of salt marsh immediately adjacent to the Acushnet
River.
'The mitigation work involves removal of historic fill from immediately adjacent to the existing
salt marsh, and to expand the salt marsh along and to the west of the Acushnet River. In order to
maximize the tidal flow of water into and out of the new marsh, final grading at the mitigation
site will result in temporary impacts to a small area (approximately 0.04 acre) of existing salt
marsh. This wetland area will be restored in place, resulting in no net loss of wetlands from
these temporary impacts.
The total size of the creation and restoration area mitigation will be 1.06 acres. Since 0.04 acre
of that total is the existing salt marsh that will be temporarily impacted and then restored in
place, the project will result'in a net increase of 1.02 acres of salt marsh. Engineering plans and
details for the mitigation project were provided in Appendix 2 of the Final Mitigation Plan.
Construction of the mitigation project will involve the removal of existing soil at the site, re-
grading, and planting appropriate native salt marsh species. The soil currently located at Rivers
End Park is contaminated with heavy metals (lead, cadmium, zinc, chromium, and nickel) and
Benzo(a)pyrene (a PAH constituent). This Final Determination is conditioned on the
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Commonwealth's submission of a characterization, removal, and disposal work plan (Soil and
Sediment Work Plan) for both soil and sediment that will remain in-place or that will be
excavated during mitigation activities at River's End Park. The Soil and Sediment Work Plan
must be submitted to EPA for review and approval at least thirty days prior to the start of land or
water work at River's End Park, and it must be approved before any land or water work at
River's End Park may occur.
Plantings at the mitigation creation and restoration area will consist of: smooth cordgrass
(Spartina alterniflora) within the low marsh zone; and, salt meadow grass (Spartina patens),
spike grass (Distichlis spicata), black grass (Juncus gerardii), marsh elder (Ivctfrutescens) and a
New England coastal salt tolerant grass mix within the high marsh zone. In addition, the
transitional buffer zone adjacent to the high marsh zone will be planted with seaside goldenrod
(Solidago sempervirens). marsh elder (Iva fr-utescens), eastern showy aster (Eurybia spectabilis),
threadleaf coreopsis (Coreopsis verticil lata), beach plum (Prunns maritima), northern bayberry
(.Myricapensylvanica), and a New England coastal salt tolerant grass mix.
In addition, a walkway will be constructed in the adjacent upland to the west of the mitigation
area. This will provide educational opportunities for the community using the park to view and
learn about the wetland creation and restoration project, and the value of wetlands in general.
The walkway will be separated from the mitigation area by a spilt rail fence, which, along with
signage, will discourage people from entering the mitigation area. Educational signage will also
be posted at the fence line.
The construction and ongoing maintenance of the mitigation area will be overseen by a wetland
scientist with expertise in the area of tidal marsh restoration and creation. Performance standards
have been established to assure successful salt marsh creation and restoration, and a monitoring
and reporting program has been developed. An invasive species control plan has also been
developed, to assure that the wetland mitigation area is not adversely impacted by invasive
species colonization.
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 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 result
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in the conservation of approximately 1.02 new acres of salt marsh at the mitigation area at
River's End Park. 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
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 0.11 acres of salt marsh wetlands will be permanently
filled as part of the creation of the confined disposal facility/marine terminal. Also,
approximately 0.30 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 0.11 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. The existing.salt marsh resource is approximately 0.41 acres
in size. 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 alterniflora, Spartina patens 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 oh Parcel 49, approximately 4,600 square feet
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(0.1 acre) in area.32 During a September 13, 2012 site visit, EPA confirmed that the wetland is
approximately 0.106 acres. The project will result in filling this wetland. 33
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, flood
flow 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: Compensatory mitigation for the project's impacts to wetlands at the South
Terminal facility will be accomplished through a restoration and creation mitigation project at
River's End Park, situated just south of Main Street, and east of River Road along the Acushnet
River in New Bedford, Massachusetts. The goal of the River's End .Park Salt Marsh mitigation
project is the creation and restoration of 1.02 acres of salt marsh. Currently, the site contains
approximately 0.402 acres of salt marsh immediately adjacent to the Acushnet River.
The mitigation work involves removal of historic fill from immediately adjacent to the existing
salt marsh, and to expand the salt marsh along and to the west of the Acushnet River. In order to
maximize the tidal flow of water into and out of the new marsh, final grading at the mitigation
site will result in temporary impacts to a small area (approximately 0.04 acre) of existing salt
marsh. This wetland area will be restored in place, resulting in no net loss of wetlands from
these temporary impacts.
The total size of the creation and restoration area mitigation will be 1.06 acres. Since 0.04 acre
of that total is the existing salt marsh that will be temporarily impacted and then restored in
place, the project will result in a net increase of 1.02 acres of salt marsh. Engineering plans and
details for the mitigation project were provided in Appendix 2 of the Final Mitigation Plan.
Construction of the mitigation project will involve the removal of existing soil at the site, re-
grading, and planting appropriate native salt marsh species. The soil currently located at Rivers
End Park is contaminated with heavy metals (lead, cadmium, zinc, chromium, and nickel) and
32 As noted in footnote 7 above, EPA considers this wetland to be adjacent to a traditionally navigable water and
therefore subject to federal jurisdiction. • "
33 In the Draft Determination, EPA referred to an additional 0.4 acre freshwater wetland on one of the properties
that the Commonwealth was considering incorporating into the terminal site, and noted that if the parcel were
included, the impacts of filling that wetland would need to be evaluated and additional mitigation would need to be
implemented. Since then, the Commonwealth has decided not to include that parcel as part of the terminal site.
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Benzo(a)pyrene (a PAH constituent); This Final Determination is conditioned on the
Commonwealth's submission of a characterization, removal, and disposal work plan (Soil and
Sediment Work Plan) for both soil and sediment that will remain in-place or that will be
excavated during mitigation activities at River's End Park. The Soil and Sediment Work Plan
must be submitted to EPA for review and approval at least thirty days-before the start of land or
water work at River's End Park, and it must be approved before any land or water work at
River's End Park may occur.
Plantings at the mitigation creation and restoration area will consist of: smooth cordgrass
(Spartina altemiflora) within the low marsh zone; and salt meadow grass (Spartina patens),
spike grass (Distichlis spicata), black grass (Juncus gerardii), marsh elder (Iva frutescens) and a
New England coastal salt tolerant grass mix within the high marsh zone. In addition, the
transitional buffer zone adjacent to the high marsh zone will be planted with seaside goldenrod
(Solidago sempervirem), marsh elder (Iva frutescens), eastern showy aster (Eurybia spectabilis),
threadleaf coreopsis (Coreopsis verticillata), beach plum (Primus maritima), northern bayberry •
(Myricapensylvanica), and a New England coastal salt tolerant grass mix.
In addition, a walkway will be constructed in the adjacent upland to the west of the mitigation,
area. This will provide educational opportunities for the community using the park to view and
learn about the wetland creation and restoration project, and the value of wetlands in general.
The walkway will be separated from the mitigation area by a spilt rail fence, which, along with
signage, will discourage people from entering the mitigation area. Educational signage will also
be posted at the fence line.
The construction and ongoing maintenance of the mitigation area will be overseen by a wetland
scientist with expertise in the area of tidal marsh restoration and creation. Performance standards
have been established to assure successful salt marsh creation and restoration, and a monitoring
and reporting program has been developed. An invasive species control plan has also been
developed, to assure that the wetland mitigation area is not adversely impacted by invasive
species colonization.
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). EPA initiated consultation under section 106 of the National Historic
Preservation Act with the Massachusetts State Historic Preservation .Officer ("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. In
accordance with comments from the SHPO and consulting parties, the Commonwealth changed
the footprint of the proposed CDF to avoid the Paleosols. Following issuance of EPA's Draft
Determination, the Commonwealth confirmed the findings of the 2010 uplands area assessment
and concluded that no additional cultural resources background research or archeological sub-
surface investigation is necessary in the expanded upland study area. After considering all
pertinent information, EPA, on September 28, 2012, issued its finding that no historic property
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will be affected by the Project, On October 16, 2012, the SHPO issued its concurrence with
EPA's determination. 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 0.11 acres of salt marsh, 0.11 acres of freshwater wetlands, and 6.80 acres of
intertidal and sub-tidal benthic habitat will be permanently impacted due to filling to construct
the CDF and adjacent terminal site. 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 47 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
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 16.87 acres of winter flounder spawning and nursery
habitat and the loss of 9-10 million individual shellfish.
As part of the South Terminal Project, approximately 225,600 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 2012m).34 Removal and segregation of
these contaminated sediments will result in long-term positive impacts for fish and wildlife
habitat within New Bedford Harbor. As mitigation for the aquatic impacts from the South
Terminal Project, the Commonwealth will 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 ten shellfish areas with over 24 million shellfish in the
Outer New Bedford Harbor to mitigate for unavoidable shellfish impacts associated with this
project. It will also restore and create 1.02 acres of salt marsh at River's End Park.
34 This figure 'does not include contaminated dredged material associated with the expanded dredging that EPA is
not approving at this time.
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As discussed in Section 6.2.2, activities associated with the dredging and filling to construct the
Project may cause adverse impacts to aquatic life due to noise. To minimize these impacts, EPA
is requiring the CDF to be constructed by using vibratory hammers to install sheet pilings and by
using the "rock socket" installation method for installation of a portion of the pipe pilings. In
addition, EPA is prohibiting the use of blasting to remove fractured bedrock. 5 The
Commonwealth may employ any of four alternate methods of rock removal, but only after EPA
evaluates the acoustic modeling study that the Commonwealth submitted on November 16, 2012
and determines the acceptability of the modeling methods and results, to ensure that the rock
removal will not have adverse impacts on the Atlantic sturgeon or other finfish.
As discussed in Section 5.3 above, EPA completed informal consultation with FWS regarding
the roseate tern and obtained FWS's concurrence with EPA's determination that the proposed
NBH-South Terminal project may affect the roseate tern, but is unlikely to adversely affect the
species. EPA also completed informal consultation with NMFS regarding the Atlantic sturgeon
and obtained NMFS's concurrence with EPA's determination that the proposed NBH-South
Terminal project may affect the Atlantic sturgeon but, with specified mitigating measures, is
unlikely to adversely affect the species. See Appendix I, Appendix K(l), and Appendix K(2) for
additional information.
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
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. The
Commonwealth has documented that the New Bedford Harbor Trustee Council will be
implementing the 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; MassDEP 2012g). The New Bedford Harbor Trustee Council
issued a fact sheet in June 2012, which states that the 12-acre salt marsh restoration at Marsh
Island in Fairhaven is anticipated to begin in late 2013. See
http://www.darrp.noaa.gov/northeast/new bedi"ord/pd 17FINAL2 fact sheet New Bedford 6-8-
12.pdf. The Commonwealth has stated that, as long as the Marsh Island restoration and the
' South Terminal project proceed on schedule, the flood storage mitigation work will occur on a
schedule that will, to the extent practicable, parallel the loss of flood storage capacity from
construction of the South Terminal project. EPA has determined that the proposed Marsh Island
Restoration Project will adequately mitigate for unavoidable floodplain storage losses associated
with the South Terminal project. Completion of the mitigation project within one year of
35 If blasting is ultimately deemed necessary, the Commonwealth will need to seek a modification of the Final,
Determination, and will need to provide additional information on potential impacts from blasting and mitigation
steps needed to minimize or eliminate those impacts
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completion of the CDF is a condition of EPA's approval of 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 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. .
9.1.12 Shore erosion and accretion: The construction of the South
Terminal/Confined Disposal Facility will result in the filling of approximately 0.11 acres of salt
marsh, 0.11 acres of freshwater wetlands, as well as 6.8 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 lill/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
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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. . , ,
Construction vessel traffic to arid 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
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 flnfish 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
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state, municipal, and/or private properties as part of the main South Terminal site and 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
underground utilities. With this in mind, the South Terminal Project is not expected to result in
any substantial property ownership impacts.
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 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 0.11 acres of salt marsh, 0.11 acres .of
freshwater wetlands, and 6.80 acres of tidal waters will be fully or partially filled. In addition,
the Commonwealth proposes to cap the existing Borrow Pit and CAD cell 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 dredging to construct the CAD cell 3; 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; and possible maintenance dredging of portions of the existing New Bedford
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Harbor Federal Navigation Project. All dredging will result in the removal of PCB-contaminated
sediments with construction areas. Approximately 47 acres of sub-tidal benthic 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
requested the Commonwealth to develop and implement a plan to mitigate for this lost flood
storage. The Commonwealth has documented that the New Bedford Harbor Trustee Council will
be implementing a 12-acre salt marsh restoration and creation project at Marsh Island in
Fairhaven, 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; MassDEP
2012g.) EPA has determined that the proposed Marsh Island Restoration Project will adequately
mitigate for unavoidable floodplain storage losses associated with the South Terminal Project.
Completion of the mitigation project within one year of completion of the CDF is a condition of
EPA's approval of the South Terminal Project. See Appendix L for more details on this issue.
The Commonwealth's compensatory mitigation plans have been designed to compensate for
impacts to specific habitat types. The River's End Park wetland mitigation project will result in
the creation and restoration of 1.02 acre of salt marsh within the same watershed as the South
Terminal facility. The goal of the River's End Park mitigation is to compensate for the lost or
impaired ecological functions and values of the wetlands impacted by the construction and
operation of the South Terminal facility. 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 will 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 projects involve partial filling of sub-tidal areas with clean sand excavated from CAD
cell 3 and navigational dredging. Finally, the Commonwealth will 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 plans, 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 determined
that the Final Mitigation Plan with additional EPA conditions-provided in Section 20 below 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,
Massachusetts. Factors considered included conservation, economics, aesthetics, general
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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 determined that
the South Terminal Project is not contrary to the overall public interest.
OTHER FEDERAL LAWS AND EXECUTIVE ORDERS
10.0 Endangered Species Act: For detailed discussion, see Appendix I — Endangered Species
Act, Appendix Kfl) Final Biological Assessment for the Roseate Tern, and Appendix K(2),
Biological Assessment for the Atlantic Sturgeon. Summary information is also available in
Section 5.3 of this Appendix.
11.0 Essential Fish Habitat: For detailed discussion, see Appendix II - Essential Fish Habitat.
Summary information on winter flounder is 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 is 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 and Appendix P — Tribal Consultation
15.0 Environmental Justice Issues (E.0.12898): For detailed discussion, see Appendix M—
Environmental Justice.
16.0 Floodplains E.O. (E.0.11988): For detailed discussion, see Appendix L - Floodplain
Management Executive Order. Summary information on floodplain management issues is 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
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 an approximately 0.11 acre freshwater depressional wetland as well as 0.41 acres of salt
marsh wetland within the South Terminal/Confined Disposal Facility project area. The 0.11 acre
freshwater wetland is located within the middle of the proposed terminal site and there are no
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practicable alternatives to avoid filling this wetland. In designing the South Terminal Project,
the Commonwealth was able to minimize direct'fill impacts to only 0.11 acre of salt marsh by
carefully choosing the alignment of the facility bulkhead. The remaining 0.30 acres of existing
salt marsh will be directly adjacent to the facility bulkhead. It is possible that secondary impacts
(salt marsh erosion) will affect the remaining salt marsh, although the Commonwealth has
explained why it does not believe that will occur. (MassDEP 2012b at 6-7.) The
Commonwealth will provide compensatory mitigation for these unavoidable wetland impacts
through the restoration and creation of 1.02 acres of salt marsh at River's End Park in New
Bedford, adjacent to the Acushnet River. This mitigation is large enough to address both the
direct impacts and any secondary impacts if they occur.
18.0 Invasive Species E.O. (E.0.13112): For detailed discussion, see Appendix N. Summary'
information is provided in Sections 6.5 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 proj ect.
SPECIAL CONDITIONS
20.0 Conditions
A. Overall Project Special Conditions:
1. Within 30 days of EPA's Final Determination, the Commonwealth shall submit a final
and complete set of plans and figures for all project components consistent with the conditions
set forth in EPA's Final Determination. Upon EPA's approval, the Commonwealth shall
complete the project in accordance with the approved plans. If in the future the Commonwealth
proposes to increase the scope of construction within or adjacent to the Acushnet River/New
Bedford Harbor, it must contact EPA immediately to discuss modification of this authorization.
EPA must approve any changes prior to their implementation.
2. All work associated with the South Terminal Project shall be completed in accordance
with all of the requirements in the Final Determination including those contained in Appendix A
and Appendix C of EPA's Final Determination and the conditions in the TSCA Determinations
in Appendix J(l) and Appendix J(2) of the Final Determination.
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3. No dredging or filling activities in waters of the U.S. may occur until the
Commonwealth demonstrates to EPA's satisfaction that it has ownership or control over all
parcels that make up the South Terminal Project site.
4. At least ten working days in advance of the start date, the Commonwealth or its
contractor shall notify the First Coast Guard District, Local Notice to Mariners Office, (617 )
223-8356, and Aids to Navigation Office, (617) 223-8358, of the location and estimated duration
of the dredging, filling, and capping operations.
5. Except where stated otherwise, reports, drawings, correspondence and any other
submittals required by EPA's Final Determination shall be marked with the words "South
Terminal Project in New Bedford, Massachusetts" and shall be addressed to:
Elaine Stanley
Remedial Project Manager
Office of Site Remediation and Restoration
EPA Region 1, Suite 100, OSRR 7-04
5 Post Office Square
Boston, MA 02176
with a copy to:
Cynthia Catri
. Senior Enforcement Counsel
EPA Region 1, Suite 100, OES04-2
5 Post Office Square
Boston. MA 02176
Documents which are not marked and addressed in this manner may not reach their intended
destination and do not comply with the requirements of these conditions.
B. Dredging, Filling, and Capping Special Conditions:
1. Dredging of fine grained materials must be conducted using an environmental bucket.
2. The Commonwealth shall implement the Fish Deterrent Program set forth in
Attachment 1 to Appendix C of the Final Determination, for any work conducted within waters
shallower than -5 meters Mean Lower Low Water ("MLLW") from January 15th through June
15th of any. year.
3. Dredging in the New Bedford Harbor Federal Navigation Project channel shall only
occur in areas that are above target depths of -30 MLLW. The Commonwealth has indicated that
it is possible that no dredging will be necessary. The estimate of 13.3 acres is a worst case
scenario.
C. Pile Driving Special Conditions:
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1. To avoid the need to drive pipe pilings into bedrock, a "rock socket" installation
method shall be used for 87 of the pipe pilings, consistent with the Commonwealth's description
' set forth in MassDEP 2012j, Appendix 1. This technique involves drilling a "rock socket" in
place, placing the piling in the hole and then grouting it in place.
2. Only vibratory hammers shall be used for the installation of sheet pilings.
D, Rock Removal Special Conditions;
1. Blasting for removal of bedrock or for any other under-water purpose is prohibited.
2. The Commonwealth may. use any of the rock removal techniques identified in
MassDEP 2012g that are approved by EPA (or approved with conditions) following EPA's
evaluation of the Commonwealth's acoustic modeling study and determination of the
acceptability of the modeling methods and results.
E. Mitigation Special Conditions:
1. The Commonwealth shall implement the Final Mitigation Plan and revised .
Appendices dated November -14, 20-12 (MassDEP 2012r). This mitigation requirement will not
be considered fulfilled until the Commonwealth has demonstrated mitigation success consistent
with the Final Mitigation Plan and has received written verification from EPA.
2. The shellfish mitigation plan may be modified with EPA's approval in two ways:
a. The Commonwealth has proposed to include oysters as part of this mitigation
plan, representing somewhere between 10-20% of the total shellfish seed to be planted. To
implement this proposal, the Commonwealth shall develop the details regarding the number of
shellfish, the apportionment of the species, and the design and location of the oyster reef under
the guidance of EPA, NMFS, and MassDMF. The Commonwealth must submit its oyster reef
plan to EPA for review and approval and receive an amendment to this Final Determination,
prior to constructing the oyster reef.
b. The .number of shellfish to be seeded may'be modified if the full extent of the
dredging as described in the Commonwealth's June 18, 2012 submission is reduced. In that
event, the Commonwealth must recalculate the expected shellfish impacts from a smaller dredge
footprint and then size the mitigation effort accordingly. The Commonwealth must provide EPA
with information to document the reduction in impact and the planned reduction in mitigation
and obtain EPA's written approval. In particular, because EPA is not, at this time, authorizing
expansion of the deep-draft quayside dredging area and additional widening of the deep-draft
channel, the Commonwealth may calculate the related reduction in shellfish loss and obtain
EPA's approval of an equivalent reduction in shellfish to be seeded.
3. The Commonwealth shall hire a wetland scientist with experience in salt marsh
creation projects and invasive species control to oversee the construction of the River's End Park
Salt Marsh Creation Project.
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4. Determination of the success of salt marsh establishment by the onsite wetland
scientist shall include an estimate of percent cover of salt marsh vegetation (in accordance with
the planting plan) for each planting zone over the entire site, and shall include the identification
and relative abundance of species present.
v
5. The Commonwealth shall submit a characterization, removal, and disposal work plan
(Soil and Sediment Work Plan) for both soil and sediment that will remain in-place or that will
be excavated during mitigation activities at River's End Park to EPA for review and approval at
least thirty days prior to the start of land or water work at River's End Park. The Soil and
Sediment Work Plan must be approved before any land or water work at River's End Park may
occur. The Soil and Sediment Work Plan shall detail the procedures that will be employed for
characterization of soil and sediment within the mitigation area. The S.oil and Sediment Work-
Plan shall also Include information on the required criteria for either leaving soil/sediment in-
place, and/or for removal, storage, handling, and disposal to meet all applicable or relevant and
appropriate state and federal standards.
6. The Commonwealth shall execute and record a conservation restriction ("Restriction")
to protect the River's End Park mitigation area in perpetuity from any future development. The
Restriction shall be in a form substantially similar to the Draft Declaration of Restriction ("Draft
Restriction") provided in Appendix 13 of the Final Mitigation Plan, and consistent with any
modifications required by EPA following its review and comment on the Draft Restriction. The
Restriction shall be executed and recorded with the Bristol County District Registry of Deeds
within 90 days of the date of EPA's Final Determination, or within 60 days of receipt of EPA's
comments on the Draft Restriction, whichever is later. A copy of the executed and recorded
document must be sent to EPA within 30 days of the date it was recorded. The Restriction shall
expressly allow for the creation, restoration, remediation and monitoring activities required by
the Final Mitigation Plan and the Soil and Sediment Work Plan. It shall prohibit all other filling,
clearing, and other disturbances (including vehicle access) on the mitigation site except for
activities explicitly authorized in the Plans.
7. In the event a Massachusetts c. 2IE ("2IE") remediation is required for the mitigation
area of River's End Park, the Commonwealth shall execute and record an Activity and Use
Limitation ("AUL"). if necessary pursuant to 2 IE.
8. The Commonwealth shall execute a Site Protection Instrument for the River's End
Park mitigation area, and a Long-term Site Control Instrument for the winter flounder habitat and
OU-3 capping mitigation areas, within 60 days of receipt of EPA's comments on the proposed
templates for those documents provided in Appendix 9 and Appendix 18, respectively, of the
Final Mitigation Plan. A copy of the executed documents must be sent to EPA within 30 days of
signature.
9. The Commonwealth shall provide financial security for the construction of the
mitigation in the form of a construction bond consistent with the draft provided in Appendix 17
of the Final Mitigation Plan. The Commonwealth shall provide a complete draft (identifying a
proposed surety and penal sum of the bond) to EPA for review and comment within 30 days of
EPA's Final Determination, and shall execute a final bond consistent with EPA's comments
59
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within 30 days of receipt of those comments. A copy of the executed construction bond must be
sent to EPA within 30 days of signature.
10. The Commonwealth shall provide financial security for the monitoring and -
maintenance activities, and any necessary corrective actions, at the mitigation areas during the
initial 5 year post-construction monitoring period, plus an additional 2 years' worth of follow-up
monitoring and maintenance activities after any corrective actions are taken.. The security shall
be in the form of a performance bond consistent with the. draft provided'in Appendix 17 of the
Final Mitigation Plan. The amount of the bond shall be sufficient to cover not only the c.osts for
the 5 year performance maintenance period (identified in section 13 of the Final Mitigation
Plan), but also to cover the costs of any necessary corrective actions and the costs for monitoring
and maintenance for up to an additional 2 years' worth of follow-up monitoring and maintenance
activities after corrective actions are taken. The Commonwealth shall provide a complete draft
(identifying a proposed surety and penal sum of the bond) to EPA for review and comment
within 30 days of EPA's Final Determination, and shall execute a final bond consistent with
EPA's comments within- 30 days of receipt of those comments. A copy of the executed
performance bond must.be sent to EPA within 30 days of signature.
F. Invasive Species Management Special Conditions:
1. Invasive species management within upland and salt marsh portions of the South
Terminal project site, and at the bulkhead and pilings, shall be managed in accordance with the
Invasive Species Management Plan ("ISMP") titled: "New Bedford Marine Commerce Terminal
Invasive Species Monitoring Plan - Facility, Bulkhead and Pilings, " November, 2012
(MassDEP 2012r). '.• ¦¦¦
2. Invasive species management for the River's End Park mitigation project shall be
conducted in accordance with the Invasive Species Management Plan titled: "New Bedford
Marine Commerce Terminal Invasive Species Monitoring Plan - Mitigation Locations, "
November, 2012 (MassDEP 2012r, Appendix 12).
3. Photographic documentation shall be included in the annual monitoring reports
specified in the ISMPs.
- 4. The annual surveys of pilings shall be submitted to MIT Sea Grant and EPA, in
addition to and at the same time that they are submitted to MassCZM.
G. Conditions to Protect the New Bedford Harbor Federal Navigation Project* ("FNP"):
¦ 1. The Commonwealth and its contractors shall locate all structures (including vessels
and floats) far enough outside the New Bedford Harbor Federal Navigation Project ("FNP")
limits so neither the structures, nor any vessels tied to these structures, encroach into the FNP
unless expressly authorized as part of a U.S. Coast Guard Notice to Mariner review process. The
Commonwealth will need to move construction equipment and allow access within the New
Bedford FNP if adequate access cannot be provided by other means.
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H. Miscellaneous Special 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 to the
New Bedford Harbor Hurricane Barrier at all times,
2. Environmental Monitor: The Commonwealth shall appoint an environmental
compliance monitor who shall not be subject to the authority of the resident engineer, design
consultant, contractor or others associated with the design and construction of the project; shall
have unrestricted access to the construction sites: and shall be required to report directly to the
Commonwealth's State Enhanced Remedy Project Manager ("SER PM") and to EPA, The
purpose for appointing and maintaining an environmental monitor is to help ensure compliance
with the terms and conditions of this Final Determination, and the monitor shall work with the
resident engineer toward that end. The environmental monitor is to observe, report, and
recommend and shall not have authority over activities or, personnel. Before the start of any on-
site construction, the name, affiliation and contact'information of this monitor shall be provided
to the EPA points of contact referenced in paragraph A.5 above. The environmental monitor
shall report any non-compliance and the proposed resolution to the EPA within 48 hours of the
occurrence. The environmental monitor shall provide monthly reports to the EPA points of
contact until project construction is complete. The monthly reports shall summarize the status of
construction, the condition of the site, the general weather conditions and shall report any
erosion, sedimentation or pollution problems and how they were corrected, along with
recommendations on how to prevent similar problems in the future. The environmental monitor-
shall immediately report any problems to the Commonwealth's SER PM, who shall take
immediate steps to correct those problems.
REFERENCE LIST
ASMFC. 2009. Status of winter flounder stocks, www.asmfc.org/managedspecies/winterflounder
Berry, W.J., N.I. Rubinstein, E.K. Hinchey, G. Klein-MacPhee and D.G. Clarke. "Assessment of
Dredging-Induced Sedimentation Effects on Winter Flounder (Pseudopleuronectes americanus)
Hatching Success: Results of Laboratory Investigations," Proceedings of the Western Dredging
Association Technical Conference and Texas A&MDredging Seminar, Nashville Tennessee,
June 5-8,2011. / - . ' ~ •
Buzzards Bay National Estuary Program. 2012. Buzzards Bay Comprehensive Conservation and
Management Plan 2012 Update.
Chang, S., Berrien, P.L., Johnson, D.L., Morse, W.W, 1999. Essential fish habitat source
document: Windowpane, Scophthalmus aquosus, life history and habitat characteristics. NOAA
Tech Memo NMFS NE 137; 32 p. ,
Docring, 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.
61
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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/s 12237-012-9518-7.
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. .
MassCZM. 1999. The New Bedford/Fairhaven Harbor Dredged Material Management Plan
(DMMP) Draft Environmental Impact Report (DEIR).
Pereirai, 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, F.W., Zetlin, C.A.. Berrien, P.L., 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, F.W., Zetlin, C.A., Berrien, P.L., Johnson D.L., 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.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix F
Determination of Compliance -
Section 402 of the Clean Water Act (33 U.S.C. § 1342)
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EFA Final Determination for the Proposed South Terminal Project . Appendix F
New Bedford Harbor State Enhanced Remedy
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 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)(including construction activity disturbing greater
than one acre); those associated with construction activity as defined in 40 C.F.R. §
122.26(b)( 15); and those designated by EPA as a significant contributor of pollutants.
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/egp2012 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
Site map
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
1 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 industrial storm water program. 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.
f
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• 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.
Appendix E of EPA's Draft Determination noted that the Commonwealth's submission
entitled State Enhanced Remedy in New Bedford, South Terminal (January 18, 2012)
contained an abbreviated storm water plan and explained that 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. Appendix E also identified the key elements'
that the Commonwealth needed to address more completely in its SWPPP. On
November' 1, 2012 the Commonwealth submitted a draft/template of a complete SWPPP
plan, which will be finalized after a contractor is procured and information is obtained
from the contractor.
Based on the information contained in the Commonwealth's submission, EPA has
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.
Final Condition
EPA's authorization of storm water discharges associated with construction activities as
part of the State Enhanced Remedy is conditioned upon the Commonwealth's 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; on the Commonwealth's implementation of
the SWPPP consistent with the terms and conditions of the CGP; and on the
implementation of the best management practices requirements of 314 C.M.R; § 9.06(6),
310 C.M.R. § 10.05(6)(k) and the Massachusetts Storm water Handbook.
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\
EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix G
Determination of Compliance -
National Historic Preservation Act (16 U.S.C. §470)
36 C.F.R. Part 800
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
. ' National Historic Preservation Act ,
The National Historic Preservation Act (NI IP A) 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 pr-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 suph 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 Natipnd 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. 36 CFR § 800.2(a)(3). If the agency determines that the
undertaking does not 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 section 106 of the National Historic Preservation Act and at the
behest of EPA, the Commonwealth commissioned a number of archeologica]
investigations and assessments of the area projected to be impacted by the Project to
determine its impacts, if any, on historic properties. After reviewing the archeological
investigations and assessments of the areas projected to be impacted by the Project, and
in consideration of input by the Massachusetts Historical Commission (MIIC) and the
consulting parties, including the Massachusetts Bureau of Underwater Archaeological
Resources (MBUAR), and the federally recognized Wampanoag Tribes of Gay Head
(Aquinnah), and Mashpee (collectively, the Tribes), EPA finds that no historic properties
will be affected within the Project's area of potential effects.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
The areas of investigation associated with this Project include the subtidal, intertidal, and
upland portions of the Project site. In particular, the Project includes the construction of
a Confined Disposal Facility in the intertidal and subtidal.portions, navigational dredging
in the intertidal and subtidal portions, and construction of a marine terminal facility on
the upland portion of the site. The archeological investigations and assessments of these
areas are summarized in the following reports (listed chronologically):
• Cultural Resources Background Study and Archeological Assessment, South
Terminal Marine Infrastructure Park (Upland Portion) by John Milner Associates,
Inc. (June 2010);
• Phase I & IB Underwater Archeological Investigations. South Terminal Marine
Infrastructure Park. New Bedford, MA, submitted, to MBUAR by Dolan
Research, Inc. (September 2010);
• Assessment of Prehistoric Archeological Site Potential: Subtidal Portions of the
Proposed South Terminal Marine Infrastructure Park. New Bedford. MA. •
submitted to the Massachusetts Historical Commission and MBUAR by John
Milner Associates, Inc. (October 2010);
• Assessment of Prehistoric Archeological Site Potential: Intertidal Portions of the
Proposed South Terminal Marine Infrastructure Park. New Bedford. MA,
submitted to the Massachusetts Historical Commission and MBUAR by John
Milner Associates, Inc. (October 2010); .
• Phase II Investigation of target M4/S5. Proposed South Terminal Marine
Infrastructure Park. New Bedford. MA, submitted to MBUAR by Dolan
Research, Inc. (January 2011); and'
• Cultural'Resources and Background Study and Archeological Sensitivity
Assessment, submitted to the Massachusetts Historical Commission and MBUAR
by John Milner Associates, Inc. (September 2012).
These studies,- with the exception of the September 2012 Cultural Resources Background
Study and Archeological Sensitivity Assessment of the upland portion of the site, were
initially submitted to the Tribes on March 23, 2011. The studies were resubmitted to the
MHC and the consulting parties as part of the Commonwealth's January 18, 2012
comprehensive submittal to EPA entitled State Enhanced Remedy in New Bedford, South
Terminal. The September 2012 Cultural Resources Background Study and Archeological
¦Sensitivity Assessment was transmitted to the MHC and consulting parties on September
18,2012. ,
The June 2010 study and assessment, Cultural Resources Background Study and
Archeological Assessment, South Terminal Marine Infrastructure Park (Upland Portion).
concerns a cultural resources background research and an archeological sensitivity
assessment of the upland portion of the Project. Because this portion of the Project
expanded as the Project developed, a second assessment, Cultural Resources and
Background Study and Archeological Sensitivity Assessment, was conducted in
September 2012. The June 2010 assessment noted that the upland area was extensively
disturbed by 19th century industrial development and concluded that no additional
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EPA Final Determination for the South Terminal Project Appendix G
New Bedford Harbor State Enhanced Remedy
cultural resources background research or archeologieal subsurface investigation was
necessary in the upland area. In the July 6, 2010 letter from the MHC to the U.S. EPA,
the MHC concurred with the findings and recommendations of this report.
The September 2012 assessment, which included the June 2010 study area, confirms the
findings of the June 2010 assessment mid concluded that no additional cultural resources
background research or archeologieal sub-surface investigation is necessary in the
expanded upland study area. (See Attachment A to this document which depicts the June
2010 and September 2012 study areas.) Note, however," that this assessment
recommended, that a,Phase I B archeologieal survey be performed to test for the presence
of intact archeologieal features and deposits associated with the former dwellings in the
former Acushnet Mills company housing before any Project-related construction
activities intrude more than 12 inches below present ground surface.' In response, the
Commonwealth confirmed that the Project will not impact this culturally sensitive area
because activities contemplated in the final designs will not involve the disturbance of .
soil in this area. In addition, as ^condition of this final decision, before any
contemplated ground,disturbance of more than 12 inches in the Acushnet Mills company
housing area i s undertaken, a Phase IB archeologieal survey of this area must be
submitted to EP A for review and approval. (See Attachment A for location of former
Acushnet Mills company housing.)
The Commonwealth also conducted intensive marine archaeological reconnaissance
Survey? of the subtidal portions of the Project area to identify any previously recorded or
unrecorded historic properties. The Phase I & IB surveys, Phase I & IB Underwater
Archeologieal Investigations. South Terminal Marine Infrastructure Park. New Bedford.
MA.'were .submitted to'MBUAR In September 20101 The Phase I survey found, and the
Phase IB survey confimied, the-presence of a late 2Qth/earJy 19th century saijing ship, The
report concerning the results of additional archeologieal research into the wreck site,
Phase II Investigation of Target M4/S5. Proposed South Terminal Marine Infrastructure
Park. New Bedford. MA (January 2011). concluded that because of the deteriorated
condition of this vessel, the archeologieal research potential of the wreck site is, limited.
In addition, the report recommended that, further investigation was not warrsinted. On
February 17, 2011, EPA and the Commonwealth's consultant, Apex Companies, LLC
(Apex) received concurrence letters from the MHC and MBUAR which agreed that the
shipwreck does not meet the Criteria of Eligibility for listing in the National Register of
Historic Places (36 CFR Part 60), the site lacks integrity, and no further investigation is
warranted.
In addition, the Commonwealth conducted assessments of prehistoric archeologieal site
potential for the intertidal and subtidal portions of the Project. The intertidal report.
Assessment of Prehistoric Archeologieal Site Potential; Intertidal Portions of the
Proposed South Terminal Marine Infrastructure Park. New Bedford. MA. concluded that
the portion has low prehistoric archeologieal potential, and recommended that no further
prehistoric evaluation of the intertidal portions of the Proj ect areas be performed.
v
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
The subtidal report, Assessment of Prehistoric Archeological Site Potential: Subtidal
Portions of the Proposed South Terminal Marine Infrastructure Park, New Bedford, MA,
concluded that this portion 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 activities. In accordance with this report, .
and in consultation with the Tribes, the Commonwealth agreed to have a suitably trained
archeologist on board dredging vessels to monitor ground disturbing activities.
The consulting parties also noted concerns about the preservation of paleosol, i.e.,
fossilized soils preserved within a sequence of geological deposits that are indicative of
past conditions, in the subtidal and intertidal areas. In particular, in MHC's November .
18, 2010 letter to EPA regarding the intertidal and subtidal investigations, the MHC
noted that both the subtidal and intertidal zone investigations identified areas with intact
paleosol, and requested that the Project planners consider an alternative to avoid and
protect these soils.
In its January 12, 2011 letters to the MHC and to the MBUAR, Apex confirmed that "in
keeping with the comments of MHC and MBUAR. the project footprint has been re-
evaluated and Re-designed Isiel such that it avoids the mapped Paleosol areas [emphasis
in original]." Moreover, the Project planners will take the following actions to protect
subtidal and intertidal paleosol from inadvertent impacts;
• The location of the paleosol will be identified on' contract drawings and
within the specifications issued to contractors as an off-limits area
(without identifying it as an archaeological feature). The areas will be
marked as off-limits (with only very minor exceptions for maneuvering
small craft on the water surface if necessary).
• Physical indicators will be installed at the waiter surface prior to the start
of construction to show the location of the paleosol and assist in keeping
contractors, subcontractors and delivery personnel from entering and
inadvertently impacting the area. *
• Pathways for use by heavy equipment, established to Specifically avoid the
paleosol area, will be clearly identified on the Project plans.
• Locations for material stockpiles and other components of construction
will be identified in locations that safely avoid the location of the paleosol.
• Construction site supervisory staff, trained in the location of paleosol
areas, will alert contractors to its presence on an as-needed basis and
ensure that the Harbor bottom above the paleosol remains undisturbed.
Because of recent changes proposed by the Commonwealth to the dredge footprint in the
intertidal and subtidal portions of the site, EPA requested written confirmation that the
October 2010 assessments of prehistoric archeological site potential for the subtidal and
intertidal portions of the Project were broad enough to cover all potential work in these,
areas. In its September 18. 2012 response to this request, Apex stated that "all areas of
4
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EPA Final Extermination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix G
the proposed dredge footprint as,well as proposed expansions fall entirely within area of
cultural resources investigation that has been completed for the Project."
In light of the surveys, assessments, and investigations described above and actions that
will be taken to avoid effects to historic properties, in accordance with 36 CFR 800.4(d),
EPA has determined that the proposed Project will not affect historic properties. On
September. 28, 2012, EPA notified, the MHC and consulting parties of its no affect
finding. On October 16, 2012, the MHC concurred with this finding. Accordingly, EPA
has fulfilled its responsibilities under section 106, and may proceed with its final decision
concerning the Commonwealth's South Terminal Project Application, subject to the
provisions contained in 36 CFR Section 800.12 for treating historic properties discovered
during implementation of this Project.
5
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O - A-tfocU [\
Previous
Project Area
Area of Archeological
Sensitivity
Figure 11. Aerial photography view (2009) depicting the location of the current Study Area, as well as the
previous Project Area (JMA June 2010), and location of archeologically sensitive area.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix H
Determination of Compliance -
Essential Fish Habitat Assessment under the Magnuson-
Stevens Act (16 U.S.C. §§ 1851 et seq.)
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix H
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 this final 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 with regard 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 comer and a description of landmarks.
10' x 10' Square Coordinates
Boundary
.North
! East
South
West'
Coordinate'
41° 40.0' N
I 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.
Species
Eggs
Larvae
Juveniles
Adults
Atlantic cod (Gadus morhua)
X
X
X
X
-------
haddock (Melanogramm us 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)
n/a
witch flounder (Glypiocephalus cynoglossus)
'
winter flounder (Pleuronectes americanus)
¦X
X
x
X
yellowtail flounder (.Pleuronectes ferruginea)
windovvpane flounder (Scopthalmus aquosus)
X
x
x
X
American plaice (Hippoglossoid.es platessoides)
X
X
ocean pout (Macrozoarces americanus)
Atlantic halibut (Hippoglossus hippoglossus)
Atlantic sea scallop (Placopecten magellanicus)
Atlantic sea herring (Clupea harengus)
X
X
monkfish (Lophius americanus)
bluefish (Pomatomus saltatrix)
X .
X
long firmed squid (Loligo pealei)
n/a
n/a
X
X
short finned squid (///ex illecebrosus) ~
n/a
n/a
Atlantic butterfish (Peprilus triacanthus)
X
X
X •
X
Atlantic mackerel (Scomber scombrus)
X
X
x
X
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
2
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surf clam (Spisula solidissima)
n/a
n/a
X -
X
ocean quahog (.Artica islandica)
n/a
n/a
spiny dogfish (Squalus acanthias)
n/a
nla.
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 thymus)
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). As of the date of EPA's Draft Determination, the Commonwealth had updated and
supplemented its January 18,2012 submission with 4 additional submissions (including
attachments), dated June 18, 2012 (MassDEP 2012a), June 29, 2012 (MassDEP 2012b), July 11,
2012 (MassDEP 2012c) and July 12, 2012 (MassDEP 2012d). Between the Draft Determination
and the Final Determination, the Commonwealth provided numerous additional documents. A
list of significant submissions referenced in EPA's Final Determination, including this Appendix
E, can be found in Table 3 of the Final Determination.
The project's components include:
1. Installation of a 1000 linear foot bulkhead in the Harbor adjacent to an existing 200
foot bulkhead to form a 1200 linear foot bulkhead, and placement 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 21.5 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
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Project channel and turning basin;
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; and . ' . .
5. Compensatory mitigation to address impacts to wetlands, intertidal habitat, subtidal
habitat, and shellfish resources.
Species Least Likely to be Impacted: Not all of 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 (NO A A).
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 determined that the species listed below may not be impacted at all or at most
may suffer minor temporary impacts. EPA's Final Determination approving the South Terminal
Project is conditioned upon the Commonwealth employing a variety of safeguards (discussed on
pages 11-14 below) to minimize the size and duration of any temporary impacts from dredging.
Atlantic cod
Haddock
Red hake
American plaice
Atlantic butterlish
Atlantic mackerel
Sandbar shark
Bluefin tuna
Atlantic sea herring _
Bluefish "
Long finned squid
Surf clam
King mackerel
4
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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
americanus)
larval
Nauplii, invertebrate
eggs, protozoans,
polychaetes
Pereira et al. 1999
juvenile
Sand dollar, bivalve
siphons, polychaetes,
amphipods -
adult
Amphipods,
polychaetes," bivalves
or siphons, eapelin
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.
5
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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
Steimle et al. 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 2.07 acres of
intertidal habitat, 4.73 acres of near-shore shallow subtidal habitat and 0.11 acres of fringing salt
marsh, for a total permanent loss of just over 6.91 acres of habitat.
There will also be temporary impacts from filling. First, the final 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. See MassDEP 2012r. 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 enhance/restore approximately 14.91 acres of shallow subtidal habitat.
Throughout these restoration areas, PCB concentrations in the sediments range from 1-8 ppm.
Covering these sediments with clean sand will eliminate exposure of elevated levels of PCBs to
the biological community. The impacts from these fill activities will be temporary, because
aquatic habitat will be available for recolonization and use by organisms upon completion. There
will also be temporary'impacts to 0.04 acres of salt marsh during construction of the salt marsh
mitigation area at River's End Park.
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.
6
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Temporary filling impacts from this proposal will affect approximately 53,21 acres of marine
aquatic habitat. The impacts due to filling are summarized in Tabic 2.
Table 2; Summary of filling impacts from South Terminal Project
Habitat type
- Acreage
Permanent/temporary
Intertidal
2.07
Permanent'
Shallow subtidal
4.73
Permanent
Salt marsh' •
0.11
Permanent
Winter flounder spawning
habitat creation
' 22.73
Temporary
Intertidal
creation/enhancement
4.73
Temporary
Near shore subtidal
enhancement
14.91
Temporary
CAD Cells 1 and 2 and the
"Borrow Pit"
10.8
Temporary
The dredging associated with the project will potentially impact a cumulative total of 47.16 acres
of seafloor. 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
3.681.
-1 to -6
-30 to -32
Quayside areas/tug
channel
8.46 , '
-1 to -6
-14
Gifford St. mooring
6.17
-1 to.-6
' -6 to -7
CAD cell #3'
¦ B.542 .
-4 to -6
-45 then filled to
original elevation and
capped
1 The Commonwealth had also sought,approval to dredge 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, As discussed in Appendices E and Q , EPA is not
approving that additional dredging at this time. •
2 The Commonwealth had also sought approval to dredge an additional 0.22 acres to accommodate additional
excavate from the potential expansion of the deep-draft quayside dredging area and potential additional widening of
the deep-draft channel. See MassDEP 2012b, pp. 3-4. As discussed in Appendices E and Q EPA is not approving
that additional dredging at this time, . •
.7
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South Terminal
Channel
7.013
-20 to -25
-30
Federal Channel
' 13.34
Existing depths
¦ -30
Total = 47.-16
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.
The impacts associated with the filling to construct the terminal will be permanent and represent a
loss of approximately 6,91 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 cells will be temporary for most species, although epibenthic
invertebrates of limited mobility (snails, sea stars, sand dollars) will 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. 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 suceessional process is the Stage 111 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 111 suceessional 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
are a known preferred prey item for'winter flounder (Periera et al., 1999). EPA views this large
3 The Commonwealth had also sought approval to dredge 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. As
discussed in Appendices E and Q, EPA is not approving that additional dredging at this time.
4 Some or all of the 13.3 acres of dredging may not need to occur depending on the elevations in the existing
channel, so this is the worst case scenario. The Commonwealth had also sought approval to dredge an additional 1.74
acres in the Federal Channel associated with potential additional widening of the deep-draft channel. See MassDEP
2012a at pp. 2-3, 4-5, and 10. As discussed in Appendices E and Q, EPA is not approving that additional dredging at
this time.
8
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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 the1 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: XMFS/NE
10. www.nero.nmfs.gov/ro/doc/efhtables.Ddf
The proposed dredging will increase the depth of 38.62 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 16.87 acres of winter flounder spawning or nursery habitat. EPA views this 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)
"downstream" from the dredging operation. Turbidity levels returned to close to prc-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.
EPA expects similar results during dredging for the South Terminal Project. The
Commonwealth will employ an environmental bucket for dredging fine-grained sediments, and it
9
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will adhere to performance standards (discussed further below) designed to minimize potential
turbidity impacts. -
Blasting: In its Draft Determination for this Project, EPA expressed concerns about potential
adverse impacts to fish species from the use of blasting to remove fractured rock from within the
footprint of the dredge area. The Commonwealth proposed engineering controls on blasting
activities for rock removal, such as the use of bubble curtains as an acoustic damping measure,
for blasting that occurs between January 15 and June 30 of any year. (MassDEP 2012g.) It also
identified alternative methods of rock removal. Id.
EPA is not approving the use of blasting to remove rock in the Final Determination for this
Project, because there is not sufficient information to enable EPA to reach a judgment about the
potential effects of blasting on the aquatic environment and on the nearby Hurricane Barrier. If
blasting is ultimately deemed necessary, the Commonwealth will need to seek a modification of
the Final Determination, and will heed to provide additional information on potential impacts
from blasting and mitigation steps needed to minimize or eliminate those impacts.
The Commonwealth has identified four primary alternative methodologies for non-blasting rock
removal that it could implement (Mass DEP 2012g). They are commonly referred to as Hoe
Ram, Bucket Removal, Drill and Fracture and Cutter Head Dredging. Based on the
Commonwealth's submission, the details of each methodology, its benefits and drawbacks, is
discussed below.
The Hoe Ram technique uses a hydraulically actuated tip on the end of an excavator arm to
essentially hammer the target rock. The intent is, through the repeated physical pressure, to
create and propagate fractures in the rock until it splits. The broken pieces are then removed by
an excavator bucket. This technique does not create a pressure wave, but does generate noise.
The peak noise levels are well below noise levels associated with blasting. Little to no turbidity
will be generated by this technique. The technique is time consuming, so this represents an
extended period of heavy equipment operation.
Bucket Removal, also referred to as rock ripping, is a technique used to fracture rock by
exceeding the compressive strength of the rock. Standard excavator buckets can be used to'
generate the sufficient force to rip the rock. Rock pieces are then removed in the excavator
bucket. No pressure wave is generated and noise levels are lower than the peak noise levels
generated by blasting. Turbidity generated by this technique is dependent on the type of rock, but
is not anticipated to be any worse than what is found with dredging. In many cases, it will be
much lower. This technique is also time consuming, so this also represents an extended period
of heavy equipment operation. '
The Drill and Fracture technique requires drilling narrow shafts into the rock and then placing an
expanding grout. The expanding grout exerts a pressure on the rock until the tensile strength is
10
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exceeded and then the rock fractures. The fractured rock pieces can be removed by an excavator
bucket. No pressure wave is generated by this technique. Noise is limited to the time of the
drilling and will be far below noise generated by blasting. Turbidity levels generated by this
technique are highly dependent on the type of rock. Similar to Bucket Removal it will be no
worse than dredging, but often much lower. Common grouts used for this type of work include
Calcium Oxide (CaO) and Calcium Hydroxide (CaOH). These grouts have a fairly minimal
potential for toxicity-and other negative impacts in the marine environment (Mass DEP 2012k). •
This technique requires a great amount of precision, making underwater applications of it
challenging and time consuming.
Cutter Head- Dredging relies on high point loads exerted on the rock to chip it into pieces. The
chipped rock fragments are carried as suspended sediment in the water being drawn in by the
suction pump of the dredge. This technique generates no pressure waves. The levels of turbidity
generated are partially dependent on the type of rock and in large part are mitigated by the
suction pump of the dredge. This technique generates the greatest amount of noise of the non-
blasting alternatives.
The Commonwealth conducted an acoustical analysis to examine the potential acoustic impacts
associated with blasting and Cutter Head Dredging. EPA has not had an opportunity to review
the details of the model, but several important conclusions can be drawn from the results
described by the Commonwealth in MassDEP 2012J, Appendix 3 (Biological Assessment of the.
Atlantic sturgeon):
1. Noise levels generated by Cutter Head Dredging are below levels that would
trigger acute mortality to Atlantic sturgeon.
2. Noise levels generated by Cutter Head Dredging exceeding thresholds that may
trigger a behavioral response (avoidance) in Atlantic sturgeon occur in a relatively
small area near the project site.
3. Acoustic impacts from the Cutter Head Dredge are substantially lower than those
predicted for blasting.
Based on these results, any of the 4 techniques outlined here provide a reduced level of impact
compared to blasting. The difference in level of impact between the 4 techniques is highly
dependent on the type of rock and is likely to be minimal.
On November 16, 2012, the Commonwealth submitted the final acoustic modeling report, which
includes the details for the model, assumptions, and how the model works. (MassDEP 2012s). Due
to the late date of the submission of this report, EPA has not had adequate time to review it and
confirm the results of the study. EPA intends to review the report expeditiously. EPA is conditioning
its approval on the requirement that the rock removal activities may not proceed until EPA evaluates
the acoustic modeling study and determines the acceptability of the modeling methods and
results, to ensure that the noise impacts will not adversely affect fish species.
11
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I
Finally, it should be noted that rock removal, independent of the technique used, must meet the
Water Quality Performance Standards outlined in Appendix C.
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 and thus likely represents a
negligible potential impact to planktonic larvae and eggs within New Bedford Inner Harbor.
Minimization/Mitigation of Potential Impacts
To minimize the impacts from dredging, EPA is requiring the following measures to be
employed as a condition of project approval:
• Dredging in the Federal Navigation Project channel will only target areas that are
above -30 MTJ.W. The Commonwealth has indicated that it is possible that no
dredging will be necessary. The estimate of 13,3 acres is a worst case scenario.
• Dredging of contaminated fine sediments will be done using an environmental
bucket.
• The project will adhere to the Performance Standards for dredging outlined in
Appendix C of EPA's Final Determination for the South Terminal Project. These
Performance Standards require adherence to specified turbidity levels, with potential
use of silt curtains or other containment measures where necessary to ensure
compliance with the turbidity levels. Ambient water column monitoring will occur to
ensure that those Performance Standards are met.
• From January 15 through June 15 of any year, silt-curtains and absorbent booms
will be deployed to enclose all areas being dredged and filled; such deployment will
occur at all times of the year for CDF construction, and for capping to create
intertidal, subtidal, and winter flounder, spawning habitat.
• A Fish Deterrent Program will be implemented for any work conducted within
waters shallower than -5 meters Mean Lower Low Water between January 15th and
June 15th of any year. The Commonwealth will erect silt barriers that will-be
anchored to the bottom. A fish weir will be installed outside of the silt curtains to
12
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provide a second obstacle to benthic fish movement. Gaps in the silt curtain.(if
required for vessel access) will be constructed with the use of a bubble curtain •
installed along the bottom of the harbor. The silt curtain/fish weir/bubble curtain-
system, will be installed in such a manner as to completely enclose the area of
proposed work. Prior to construction and whenever warranted by the monitoring
program, multiple types of fish startle systems will be deployed within the project
area to encourage fish to move out of the area. From January 15 to June 15, weekly
monitoring of the exclusion devices will be done to ensure their physical integrity.
Also from January 15 to June 15, weekly, monitoring of the project area for fish will
be done. If a single winter flounder or schools of pelagic fish are detected in the
project area, the fish startle systems will be deployed to encourage them to move.
To that ensure compensatory mitigation is provided, to address both permanent and temporary
aquatic impacts associated with this project, EPA is requiring the Commonwealth to implement
the following mitigation as a condition of approval of the Project:
• The Commonwealth will 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.
• The Commonwealth will conduct a quahog seeding program in open shellfishing
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areas south of the hurricane barrier. The Commonwealth will seed 24,542,803 clams
to offset the expected loss of 9,817,121 shellfish, subject to two potential
modifications discussed below. The quahog seeding will occur in several locations in
New Bedford waters. Due primarily to the availability of seed, this replacement will
take place over a 10-15 year time period. This shellfish mitigation plan may be
modified in the future in two .possible ways. ¦ '
The first potential modification of this shellfish mitigation, plan relates to the NMFS's
desire for the Commonwealth to include oysters as part of this mitigation effort.
Accordingly, the Commonwealth has proposed to include oysters as part of this
mitigation plan representing somewhere between 10-20% of the total shellfish seed to
be planted. The Commonwealth has not yet developed an oyster reef mitigation plan
so EPA cannot approve this mitigation component at this time. The Commonwealth
can submit an oyster reef plan to EPA for approval and ask for an amendment to the
Final Determination.
The second potential modification relates to the Commonwealth's request to adjust
the number of shellfish to be seeded if the full extent-of the dredging as described in
the Commonwealth's June 18, 2012 submission (MassDEP 2012a) is reduced. In that
event, the Commonwealth would recalculate the expected shellfish impacts from a
smaller dredge footprint and then size the mitigation effort accordingly. This
approach is acceptable to EPA, provided that the Commonwealth provide EPA with
information to document the reduction in impact and the planned reduction in
mitigation and obtain EPA's written approval. Because EPA is not, at this time,
authorizing expansion of the deep-draft quayside dredging area and additional
widening of the deep-draft channel (see footnotes 1-4 above), the Commonwealth
may calculate the related reduction in shellfish loss and obtain EPA's approval of an
equivalent reduction in shellfish to be seeded.
• The Commonwealth will create approximately 1.02 acres of salt marsh at the
Rivers End Park Mitigation Site, located on the Acushnet River, to the north of the
Wood' Street Bridge in New Bedford, Massachusetts. This salt marsh creation is
intended to compensate for the functions and values associated with the 0.11 acres of
salt marsh and 0.11 acres of freshwater wetlands that will be lost when they are filled
during construction of the Project.
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. Exceedanees of performance standards may trigger use of containment
barriers and/or reduced dredging rates to ensure the protection of water quality. From January 15
to June 15, and in some areas at all times of the year, silt curtains and absorbent booms will be
used to encircle all areas being dredged, filled, or capped. From January 15 to June 15 in water
depths shallower than -5 meters Mean Lower Low Water, silt curtains, bubble curtains and fish
14
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weirs will be erected around the areas of dredging and filling to prevent fish, particularly winter
flounder, from entering the project area. In those areas, fish startle systems will be deployed
before construction begins to move fish out of harm's way, and weekly monitoring will occur to
ensure the barriers maintain their physical integrity and that no fish have made it into the project
area. For the permanent impacts, the Commonwealth will implement a mitigation package that
: should offset the projected loss of winter flounder spawning habitat, salt marsh, intertidal, and
subtidal habitat. The Commonwealth will also implement a shellfish seeding effort consistent
with that described above, to offset the losses associated with that resource. Rock removal
activities will not proceed until EPA evaluates the acoustic modeling study that the
Commonwealth submitted on November 16, 2012 and determines the acceptability of the
modeling methods and results. EPA has 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.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix I
Determination of Compliance —
Endangered Species Act (16 U.S.C. § 1531, et seq)
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix 1
Endangered Species Act. 16 U.S.C. 1531 et sea.
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 Jurisdiction .
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. EPA subsequently determined, and
FWS confirmed in a letter dated July 17, 2012, that the piping plover and the northeastern beach
tiger beetle are not in the project area. >
On August 2, 2012, EPA submitted a final Biological Assessment of the potential effects of the
construction and long-term operation of the proposed Project on the roseate tern to FWS. For the
reasons discussed in the final BA, and summarized briefly below, EPA concluded that while the
proposed Project may affect the' roseate tern, the Project is unlikely to adversely affect the
species. The FWS replied to EPA's Biological Assessment and conclusions in an August 29,
2012 letter and concurred with EPA's determination that the Project is not likely to have an
adverse effect on the roseate tern.
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 also listed by the Commonwealth of
Massachusetts as endangered under state law.
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 tem 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
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.
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
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%), cutiner (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 tems 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 tem 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-
South Terminal project may affect the roseate tern, the project is unlikely to. adversely affect the
species. At the suggestion of the Massachusetts Natural Heritage and Endangered Species
Program, the Commonwealth will conduct a tern survey to determine the extent of foraging
habitat for the common and roseate terns as well as tern use of the area. The Tern Monitoring
Program will take place over one season, from late April through late August, 2013. See sections
2
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
3,2.9 and 7.3.4, of the Commonwealth's November 14, 2012 Final Mitigation Plan (MassDEP
2012r) for more information.
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
(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, 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.
A series of meetings occurred between EPA, NMFS and the Commonwealth on September 21
and 28, 2012 to discuss in part, the details of the Project construction and the potential impact to
Atlantic sturgeon. In a subsequent September 28, 2012 letter, NMFS stated the species are
known to use the nearby Taunton River "as part of their estuarine/riverine habitat, and could be
present anywhere within coastal waters as part of their marine habitat," and recommended that
EPA initiate informal consultation under the Endangered Species Act. In its September 28, 2012
letter, NMFS requested specific information detailed below on pile driving, blasting and
dredging. On October 4, 2012 the Commonwealth sent a letter to EPA providing the project
information that NMFS had requested and outlining the approach that Massachusetts devised in
cooperation with NMFS to mitigate impacts to the Atlantic sturgeon also detailed below.
(MassDEP 20J2j, Appendix 1.) The Commonwealth supplemented this information in its
Biological Assessment ("Assessment") for the Atlantic sturgeon, submitted to ERA on October
22. 2012. (MassDEP 2Q12j. Appendix 3.) ,
NMFS requested the following project specific information:
Pile driving - number of proposed piles, approximate range of pile diameters, pile driving
methods and locations, any pile driving sequencing, and the use of any sound reduction
mitigation being proposed.
Blasting - proposed blasting schedule, proposed methodology, location, water depths,
and any proposed mitigation measures.
Dredging - type of equipment being used.
In response to those requests, the Commonwealth provided the following information:
Pile driving r The construction of this facility calls for the installation of a 1,000 linear
foot coffer dam, followed by the installation of 175 z-shaped steel sheet piles and 181
pipe piles. To construct the coffer dam, 3,034 thin flat steel sheets approximately 19"
long and 0.5" thick will be installed. The z-shaped pile sheets are 30" long and 3/8"
thick. Sixty-five of the pipe piles are 24" diameter and have a 5/8" wall thickness. One
hundred and sixteen of the pipe piles are 30" in diameter and have a wall thickness of V".
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
To mitigate potential impacts to Atlantic sturgeon primarily from noise impacts
associated with pile driving, the Commonwealth has agreed to the following construction
measures:
1. To eliminate the need to pound piles into bedrock, a "rock socket" installation method
will be used for 87 of the piles. This technique involves drilling a "rock socket" in
place, placing the piling in the hole and then grouting it in place. This technique is
consistent with the "drill and pin to ledge" criteria that NMFS has previously
suggested. -
2. Only vibratory hammers will be used for the installation of sheet piles.
Blasting - The Commonwealth proposed engineering controls on blasting activities for
rock removal such as the use of bubble curtains as an acoustic damping measure for
blasting that occurs between January 15 and June 30 of any year.
EPA is not approving the use of blasting to remove rock in the Final Determination for
this project, because there is not sufficient information to enable EPA to reach a judgment
about the potential effects of blasting on the aquatic environment and on the nearby
Hurricane Barrier. If blasting is ultimately deemed necessary, the Commonwealth will .
need to seek a modification of the Final Determination, and will need to provide
additional information on potential impacts from blasting and mitigation steps needed to
minimize or eliminate those impacts.
In an October 12, 2012 submission, the Commonwealth identified potential alternate rock
removal methods. (MassDEP 2012g. ) These techniques are described below as well as
their potential environmental impacts. -
Alternate Rock Removal Methods - With respect to the alternative methods of rock
removal, there are four primary methodologies for non-blasting rock removal. They are
commonly referred to as Hoe Ram, Bucket Removal, Drill and Fracture and Cutter Head
Dredging. The details of each methodology, its'benefits and drawbacks will be discussed
below.
The Hoe Ram technique uses a hydraulically actuated tip on the end of an excavator arm
to essentially hammer the target rock. The intent is to through the repeated physical
pressure to create and propagate fractures in the rock until it splits. The broken pieces are
then removed by an excavator bucket. This, technique does not create a pressure wave,
but does generate noise. The peak noise levels are well below noise levels associated
with blasting. Little to no turbidity will be generated by this technique., The technique is -
time consuming, so this represents an extended period of heavy equipment operation.
Bucket Removal, also referred to as rock ripping, is a technique used to fracture rock by
exceeding the compressive strength of the rock. Standard excavator buckets can be used
to generate the sufficient force to rip the rock. Rock pieces are then removed in the
excavator bucket. No pressure wave is generated and noise levels are lower than the peak
noise levels generated by blasting. Turbidity generated by this technique is dependent on
the type of rock, but is not anticipated to be any worse than what is found with dredging.
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
In many cases, it will be much lower. This technique is also time-consuming, so this also
represents an extended period of heavy equipment operation. '
The Drill and Fracture technique requires drilling narrow shafts into the rock and then
placing an expanding grout. The expanding grout exerts a pressure on the rock until the
tensile strength is exceeded and then the rock fractures. The fractured rock pieces can be
removed by an excavator bucket. No pressure wave is generated by this technique.
Noise is limited to the time of the drilling and will be far below noise generated by
blasting. Turbidity levels generated by this technique are highly dependent on the type of
rock. Similar to Bucket Removal it will be no worse than dredging, but often much
lower. Common grouts used for this type of work include Calcium Oxide (CaO) and
Calcium Hydroxide (CaOH). These grouts have a fairly minimal potential for toxicity
and other negative impacts in the marine environment. -(MassDEP 2012k). This
technique requires a great amount of precision, making underwater applications of it
challenging and time consuming.
Cutter Head Dredging relies on high point loads exerted on the rock to chip it into pieces.
The chipped rock fragments are carried as suspended sediment in the water being drawn
in by the suction pump of the dredge. This technique generates no pressure waves. The
levels of turbidity generated are partially dependent on the type of rock and in large part
are mitigated by the suction pump of the dredge. This technique generates the greatest
amount of noise of the non-blasting alternatives.
The Commonwealth has not yet identified a specific preferred rock removal technique. •
In general, EPA finds the predicted environmental impacts resulting from any of these
techniques to be substantially lower than those predicted for blasting. Based on the
results of the Commonwealth's acoustical study that are included in its October 22, 2012
Biological Assessment report, the noise impacts from these techniques will be below the
decibel levels contained in NMFS's comment letter that would trigger acute mortality in
Atlantic sturgeon and would likely only result in behavioral responses (avoidance) in a
small area by the project site. (MassDEP 2012j, Appendix 3.)
On November 16, 2012, the Commonwealth submitted its final acoustic modeling report,
which includes the details for the model, assumptions, and how the model works.
(MassDEP 2012s.) Due to the late date of the submission of this report, EPA has not had
adequate time to review it and confirm the results of the study. EPA intends to review
the report expeditiously. EPA is conditioning its approval on the requirement that rock
removal activities may not proceed until EPA evaluates the acoustic modeling study and
determines the acceptability of the modeling methods and results, to ensure that the noise
impacts will not adversely affect the Atlantic sturgeon or other fish species.
Rock removal will be required to meet all of the Water Quality Performance Standards,
found in Appendix C. ¦ •
Dredging - To mitigate potential impacts to Atlantic sturgeon and other fishery resources
from dredging, the Commonwealth has agreed to implement the following measures:
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I
1. The use'of an environmental bucket for dredging of fine grained materials;
2. Adherence to performance standards and monitoring related to turbidity levels, with
potential use of silt curtains or other containment measures where necessary to ensure
compliance with turbidity levels.
3. From January 15 through June 15 of any year, silt-curtains and absorbent booms will ¦
¦ be deployed to enclose all areas being dredged and filled.
4. A Fish Deterrent Program will be implemented for any work conducted within waters
shallower than -5 meters Mean Lower Low Water between January 15th and June 15th
of any year. The Commonwealth will erect silt curtains that will be anchored to the
. bottom and encircle the work area. A fish weir will be installed outside of the silt
curtains to provide a second obstacle to benthic fish movement. Gaps in the silt
curtain (if required for vessel access) will be constructed with the use of a bubble
curtain installed along the bottom of the harbor. The silt curtain/fish weir/bubble •
curtain system will be installed in such a manner as to completely enclose the area of
proposed work. A fish monitoring program will also be instituted. On a weekly basis,
the Commonwealth will monitor for the presence of fish in the -project area. If fish
are present, multiple fish startle systems will be deployed in an attempt to get the fish
to move out of the project area.
The Commonwealth's October 22, 2012 Assessment contained the results of an acoustical study
its consultant had conducted. The study itself was not included with the Commonwealth's
submission, so EPA has not had the opportunity to review the details of the acoustic model used
to generate results for this assessment. In addition, EPA does not concur with the Assessment's
premise that Atlantic sturgeon could only occur within a handful of narrowly defined habitat
areas within New Bedford Harbor. However, some useful Conclusions can still be drawn from
this-Assessment:
1. Potential acoustic impacts would be primarily limited to behavioral (avoidance):
effects.
2. Potential acoustic impacts seem to be limited to an area surrounding the project site
that represent less than approximately 1/3 of the cross-sectional area of the river.
This leaves ample room for fish passage.
3. Bubble curtains can be employed as an effective means of minimizing the potential
area of impact
4. The predicted acoustic impact from the Cutter Head Dredge, which would produce
the greatest impact of the four rock removal alternatives, is substantially less than the
predicted impact from blasting. The predicted acoustic impact would be well below
levels that would trigger acute mortality in Atlantic sturgeon and would likely result
in only behavorial responses (avoidance) in a relatively small area near the project
site. In addition, from January 15 to June 15, a large percentage of the zone of
potential acoustic impact will already be blocked off with fish exclusion devices (silt
curtains, bubble curtains and fish weirs) designed to keep benthic fish out of the
project zone. Thus, during that time frame, Atlantic sturgeon will be physically
shielded from a large part of the area that could cause them harm.
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix I ,
After obtaining technical assistance from NMFS, EPA initiated informal consultation and •
transmitted its Biological Assessment ("BA") and conclusions to NMFS on October 31, 2012.
As discussed in the BA, EPA concluded the proposed NBH-South Terminal project may affect
the Atlantic sturgeon but, with specified mitigating measures identified above, is unlikely to
adversely affect the species. NMFS concurred with EPA's conclusions by letter dated November
14,2010. . '
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix J(l)
TSCA 40 C.F.R. § 761.61(c) Determination for the
New Bedford Harbor South Terminal Marine Facility
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J (1)
TSCA § 761.61(c) Determination for
New Bedford South Terminal Marine Facility
This TSCA Determination is included in EPA's Final Determination in which EPA determined
that inclusion of a 28.45 acre marine terminal consisting of 6.91 acres of filled waters (referred to
as "the confined disposal facility" or the "CDF" ) and approximately 11.075 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 ("CAD cells") (collectively the
" South Terminal Project area" or the "Project area") into the New Bedford Harbor State Enhanced
Remedy ("SER") is protective and meets all substantive federal and state requirements. In
general, the CDF construction involves the extension of the existing terminal by installing sheet
piling, dredging of sediments within the CDF footprint that are not suitable for construction, and
filling of the CDF with structurally suitable materials. (See Attachment 1 for South Terminal
CDF, upland and ancillary property' configuration; see Attachment 9 for areas of dredging
and filling.)
Based on prior manufacturing operations in New Bedford and at the South Terminal Project area,
FCB-contaminated sediment and soils likely meet the definition of a PCB remediation waste as
defined under 40 CFR Section 761.3 and thus are regulated for cleanup and disposal under 40 CFR
Part 761.
In accordance with the requirements under the Toxic Substances Control Act (TSCA) and 40 CFR
Section 761.61(c), I have reviewed the pertinent documents regarding the Project area 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, 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);
Response to USEPA Comments,(submitted via email on. July 3,2012); Phase 1 Environmental Site
Assessments (submitted October 1,2012); October 12,2012 Response to USEPA Comments; and,
October 27, 2012 Response to USEPA Comments. ,
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, as modified on June 18, 2012. (See Attachments 2,3 and 4),
In addition to construction of the CDF, the following activities are associated with the
South Terminal Project area and are 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);
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix .1(1)
• Construction of a confined aquatic disposal (CAD) cell #3;
• Dredging of PCB-contaminated sediments with less than (<) 50 parts per million ,(ppm)
located within the area where the CDF will be constructed with disposal in CAD cell #3;
• ; Potential dredging of PCB-contaminated sediments with <50 ppm located in the' federal
¦ navigational channel and turning basin, and approach and tug 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
disposal into CAD cell #3; • ' •
• Removal of greater than (>) 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)(»i);
• Excavation and compaction of soils located within the Excluded Area of Map 31, Parcel
288 as shown on Attachment 5, with either on-site or off-site disposal of excavated soils;
• Grading and/or removal of less than or equal to (<) 25 ppm PCB-contaminated soils on the
current upland area;
• Construction of a protective 3-foot cap or equivalent over that portion of the Project area
which has been determined to have PCB concentrations at > 1 ppm. The cap will consist
of a minimum of 36-inches of compacted dense aggregate; arid,
• Establishment of a deed restriction in .the form of an Activity and Use Limitation for the
Project 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 method of excavation, disposal, and capping of upland soils and the dredging, disposal,
and capping of 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:
For Dredging and Disposal, and Capping of Sediments
1. Development and submittal of a Phase IV Work Plan to EPA New England and the SER
Regulatory Agencies;
2. .Compliance with water quality and turbidity performance standards as specified by
Attachment 6 to this TSCA Determination is maintained, at a minimum (Attachment 6
may also be found at Appendix C to EPA's Final Determination);
• • 2
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
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, as modified on
June 18,2012;
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;
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 bcnthic 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 its 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 cap. 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. 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; and
9. 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.
3
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(l)
For TSCA Determination and Deed Restriction Area and for Excluded Area, both depicted in
Attachment 5 to this TSCA Determination
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 7 of this TSCA Determination. (Attachment 7 may also be found
at Appendix A to EPA's Final 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 disposal facility or a RCRA hazardous waste landfill in accordance
with § 761,61(a)(5)(i)(B)(2)(///). 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 8;
3. For work conducted on the Excluded Area of Map 31, Parcel 288, as identified on
Attachment 5, the following shall apply:
a. If the Commonwealth is capable of obtaining temporary ownership of this
Excluded Area: The Commonwealth will retain ownership and/or site control
until such time as the Commonwealth has completed work within the Excluded
Area. Material excavated from within this Excluded Area will be moved to the
area of the TSCA Determination and will be used as backfill within the TSCA
Determination area as identified on Attachment 5. Clean fill will be imported
from offsite and utilized to,backfill the Excluded Area. Prior to excavation of the
Excluded Area, sampling will be conducted to determine the presence of c
contamination, including PCBs in this area. PCB-contaminated soils with > 25
ppm will be removed and disposed of at a TSCA-approved disposal facility or a
RCRA hazardous waste landfill in accordance with § 761.61(a)(5)(i)(B)(2)(wi).
Hazardous waste and PCB-contaminated soils with > 1 ppm but < 25 ppm shall be
relocated to the TSCA Determination area for consolidation beneath the final clean
cap; or,
b. If the Excluded Area remains privately owned; The Commonwealth shall sample
the soil in this area prior to excavation or alternatively, this soil shall be excavated
and disposed of off-site as a > 50 ppm PCB waste at a TSCA-approved disposal
facility or a RCRA hazardous waste landfill in accordance with
4
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy-
Appendix J(l)
§ 761.61 (a)(5)(i)(B)(2)(///). If sampling is conducted, in the event that PCB
concentrations are > 1 ppm and/or hazardous waste is identified, the soil shall be
disposed of off-site at an appropriate disposal facility. Soil with PCB
concentrations < 1 ppm and that do not contain hazardous waste may be backfilled
into the Excluded Area along with any imported clean fill as necessary to restore to
the final grade;
4. , 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 > 1 ppm but < 50 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
§ 761.6l(a)(5)(i)(B)(2)(/«);
5. 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:
a. ' 40. CFR § 761 Subpart C - Marking of PCBs and PCB Items
b. 40 CFR § 761.65 - Storage for Disposal
c. 40 CFR § 761.79 - Decontamination Standards and Procedures
d. 40 CFR § 761.180 - Records and Monitoring
e. 40 CFR § 761 Subpart K, PCB Waste Disposal Records and Reports;
6. A long-term monitoring plan (LTMP) shall be established for maintenance of ground
surfaces and for groundwater monitoring on the Project area. At a minimum, the LTMP
shall include; a description of the activities that will be conducted, including cap inspection
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; and,
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;
5
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EPA Final Determination for the Proposed South Terminal Project Appendix J(l)
New Bedford Harbor State Enhanced Remedy
7. A deed restriction in the form of an Activity and Use Limitation shall be recorded on the
Project 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 5.
This TSCA Determination is based on the information contained in the Administrative Record and
is limited to the TSCA Determination Area as shown on Attachment 5. In the event that PCBs
are identified at other areas located within the South Terminal Project area that are not addressed
under this TSCA Determination, the Commonwealth shall be required to comply with 40 CFR
Section 761,61 for cleanup and disposal of these PCBs.
Any proposed change(s) to the SER which involves management or impact to PCB-eontaminated
soils or sediments shall be provided to EPA. Upon review, EPA may find it necessary to revise
this TSCA Determination, a condition herein, or issue a new TSCA determination based on the
proposed change(s). ,
k Infrz~
Date
Attachment 1: South Terminal CDF, upland and ancillary property configuration
Attachment 2: January 12, 2005 TSCA Determination
Attachment 3: November 12, 2008 TSCA Determination
Attachment 4; Modification to November 12, 2008 TSCA Determination
Attachment 5: Excluded Area, Map 31, Parcel 288; TSCA Determination Area; and
Deed Restriction Area
Attachment 6: State Enhanced Remedy - Water Quality and Turbidity Performance Standards
Attachment 7: Minimum Air Monitoring Standards
Attachment 8: Current Upland Area PCB Excavation Areas
Attachment 9: Areas of Dredging and Filling
James T. Owens, III
Office of Site Remediation & Restoration
6
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kh&Ovmf I.
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/U+OcKmtnf 2.
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 ceils (CAD cells) for the
dredged PCB-contaminated sedimentsjset out irvjthe 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 NewBedford 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 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 bathymelric 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, unless otherwise
directed by EPA New England. After 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 alt 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 Commi ssion 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 ofNew Bedford Harbor.
This determination is based on the information contained in the December 2004 Work Plan. Any
-------
proposed ehange(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).
j>'
Robert W. Varney . Date
Regional Administrator, EmT3ew England
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Attachment A - State Enhanced Remedy Initial CAD cells and dredging areas
_ /,'p1 *j'
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3.
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 Hew 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;
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).
Date
Page 2 of 2
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Figure 1: CAD #2 Location
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AHaW 4.
'*Insit|;Nov^beF 12,2008 TSCA Determination lDetermination)^ EPAvfound that.disposal of
*E§B-cohtMiiiia^ 0 A© ells;' lotSa&a^oi^ ^o^Roixtfe ,'6 iKl^e^:-Bedfpi!d.i^^r
would not pose an umeasonafele; nsfeto-huniaii healtifotrthetMOTOiMent;^
conditions were met. This Determination was based on information set-forth in tiie>dra&ipnl
2007 CAD Cell //2 Pre-Design Work Plan and Section 01135"of the November 2008 Phase III; "
Contact Specifications f%-^e^^M4fQrMHari^r;navigational dredging.
The MassachusettSvDep.aitmentrof Environmentai Protecti (MassDEP) has submittecLa request
*fora''n^difica^^ to include disposal of approximately 6,000 cubifc-yardsspf
PCB-contamihated sedimerititiiatiiwill.be.generated1-by-A(§M Marine, In'cl from its property located
at 7 Fish Island into CAD'Cell #2. A map of the proposed'area to be dredged is attached-as;
Attachment A to this Modification. PCB concentrations in this-sediment range from 6.8 ppm to
23.3 ppm, Documents dated July-24, 2008; December 9, 2008; June-22,2009; May 2, 2012; and,
;May 16j in support of this Modification. ;^;]PB^gC-Matend.D|^aterin|;jajid.
•HandlingJroeeauresigiarfidated May 25,2012 was'also*pr6vided» !S&f
these>dpc,umerits,"
'jGbnsist%t;withiS^ .61 (c) ofthe Toxic Substances''Control Act (TSCA) I have^feviewed.:
,thes¥dTOtim'erits^regarding the proposed work-and have determined that disposal of this < 50 ppm
PiCB-cpntaminated^sediment into CAD Cell #2 will not pose an unreasonable risk to human health
ppthe^ttmoTime^^
1.; Compliarlce^ffi'the-May v25i JO12 DredgeMateriai;DewateringandHandlingProcedures
plan and specified water quality monitoring and turbidity perforiTiance;stahdards ismaintairied
duringalldisposaloperations.
2., ;Water.:quali%:.and.iurbidi|y monitoringfshalLiW'cOnducted.duringidisposal.pgeratitth's.M'the:
'fQlloi^ng^qumc|^;|
a. Turbidity shall be measured at both the;reference location atfd«^;idis^^b'catioK
¦ (CAD Cell #2), prior to the starfpfeach disposal event" and,wthih 3|),miMp%
following completion of each disposal event;
- Any dredged material -Mataccid^htlytohlfesWbe ldcated'offisideso®
disposal (eVg>,.'l'mi^mg";te
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''TO&MQffification to the November l-2;f2QpTTSpA^Determffi^
jtontamediii the Julv 24^2008|D|^^^ff|;2|08|||ine 22,2009; May 2, 2012; and, Ma> 16, |012.
^y^rpgosedgcifiaxige(s) to the work-described in those submittals
shall be-phvvided to EPA. Upon review. EPA may find it necessary to rerase):ffls?delemm
a'ssu&a?new ISC A determinationDasedl^rtw^rqposedchange^sfr
mm _ ¦ •
^TectOr.j ©See o£;Site?RfemedM^
Attachment & Map of AGM Proposed.Dredging,Area
Attachment'B':' T'listlofDocurnents
•Page2io|5'
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DATE: 5-16-12'
sheet ;i of ;f
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Attachment s to ModificatioriofNovember i;2s?2fi0j.^Si(^
- List ofDocuments Reviewed -
1.} JulyIMiffCWS Letter and attachments to David DicRerson, HPA from ChtlMyersi
^pex^regafdingTSCA Determination, AGM Marine,.Inc., New Bedford^
Massachusetts
2. Deceml3er'9^2008 GriferOfjponditi'onsw?MassDEP Bureau :of Resource:
JW^ction,--^etlM!s-incluSing|^rter||
Bedford.
%, JiiMe*22jy2O09^6ieMWate"^
fromGlermHass,ActingAssistaiitGoimnissioner,;BureauResourceProtectionto
%>tmMKutowi|;;^
Ma^:;2', '2 012 Letter and' attachmenfssfrom ;EaMjCraffey-,,;M to Kimberly ¦
©s% HPA regarding TSCA Deternimatibn^Modifications ^Maiine, Inc:
5g ,.M^O:6v;20|2iE^eiMid^aEliiM MassDEP to KHmberly
Tisa, EiBA;regarding -TSGA Detentiination Modification Updiate;;- AGM.Marine,.;
\Incv
B'., :May 25,.2012 LeftertfromJonahiMta ¦
Paul Crafley, MassDEP transmitting Dredge Material De-watering and Handling
Procedures Plan.
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Si
APEX
Map 31, Parcel 288
"Excluded Area"
TSCA Determinatio i Area and
'Deed Restriction Ar ;a
AREA FOR TSCA
DETERMINATION
COMMONWEALTH
MASSACHUSETTS
NEW BEDFORD MARINE
COMMERCE TERMINAL
AREA FOR TSCA
DETERMINATION
Oato
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
Water Quality Performance Standards
I. Introduction
1. These Water Quality Performance Standards ("Performance Standards") shall apply to the
South Terminal Project as defined by EPA's Final Determination for the South Terminal
Project issued on November 19,2012.
2. The Commonwealth of Massachusetts is the lead agency for the State Enhanced Remedy
work, and has a designated State Enhanced Remedy Project Manager ("SER PM").
3. Pursuant to the Memorandum of Agreement entered into between EPA and the
Commonwealth in 2005 relative to the New Bedford Harbor State Enhanced Remedy, the
SER PM shall continue to coordinate with the Regulatory Agencies for this South
Terminal Project. In addition, to ensure consistency with EPA's Final Determination
for the South Terminal Project, EPA shall have review and approval authority as
described in these Water Quality Performance Standards.
4. No modifications may be made to these Water Quality Performance Standards without prior
written agreement of EPA.
5. In the event of a conflict between these Performance Standards and the Final Mitigation Plan
included in EPA's Final Determination, the Final Mitigation Plan shall prevail.
II MADEP 401 Water Quality Program Standards:
1. Anti-degradation provisions of the' Massachusetts Surface Water Quality Standards,
protect all waters, including wetlands. The Commonwealth shall ensure that all
necessary steps are taken to assure that the proposed activities will be conducted in a
manner, which will avoid violations of said standards.
2. Environmental Monitor. The Commonwealth shall ensure that the. contractor shall
employ an "Environmental Monitor" (EM) and that the contract requires the EM to report
directly to the SER PM and EPA. 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 SER PM and the
Regulatory Agencies so that s/he may be contacted on a 24-hour basis, seven days a
1
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Appendix J(l) T8CA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
week to address any emergency situation. The EM shall be authorized to contact the SER
PM and EPA directly for any.matter involving wetland protection. The EM shall submit
bi-weekly reports to the SER PM and EPA, following the commencement of construction
and continuing until completion of the work in resource areas. The bi-weekly reports
shall summarized, 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 Engineers) who shall take
immediate steps to correct.those problems. ., , \
3.' All in-water work shall meet EPA's Final Determination conditions to .protect aquatic
life, including winter flounder spawning & the alewife fish run. that passes through the
harbor to the Acushnet Sawmill Pond spawning area. .
4. A Storm Water Pollution Prevention Plan-(SWPPP) for the entire project as required by
EPA's Final Determination, 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 SER PM for prior review and written approval prior to
commencement of construction. 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-EPA's NPDES
Construction Stormwater 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 specific measures to be taken to adjust the pH to acceptable limits
[for example, carbon dioxide (C02) bubbling when concrete pouring is also
occurring]. . 1
5. The Commonwealth shall ensure that the contractor shall implement the use of silt
curtains and absorbent booms, and/or the Fish Deterrent Program as outlined below:
a. CDF Filling: At all times of year, when filling below Mean High Water
. occurs in association with construction of the CDF, the area being filled shall
cither be completely encircled with steel sheet piling, or completely encircled
with a combination of steel sheet piling and silt curtains, or completely encircled
with silt curtains. ¦' *
1- Monitoring: Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section II.9 must be
• ' satisfied. ' . .
2
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
b. Compensatory Mitigation: At any depth and at all times of year, all areas
where there is filling and capping associated with compensatory mitigation '
(i.e. winter flounder mitigation creation and intertidal and subtidal mitigation
capping) will be completely encircled by silt curtains' and absorbent booms for the
duration of the filling and capping activity.
1. Monitoring: Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section 11,9 must be
satisfied.
c. Dredging, Filling Capping, and Rock Removal at Depths Shallower Than
-5 Meters MLLW: In all areas where dredging, filling (except for filling below
Mean High Water associated with construction of the CDF, addressed in
Section II.5.a, and compensatory mitigation activities, addressed in Section
Il.S.b.), capping, and other activities such as rock removal will occur, the
following is required:
1. From January 15 through June 15 of any year, the Fish Deterrent
Program (see Section II.8 and Attachment 1) must be implemented.
This Program requires that absorbent booms, silt curtains, bubble curtains
and fish weirs be erected around the work area to prevent fish, particularly
¦ winter flounder, from entering the work area. [Note: other Fish Deterrent
Program requirements as specified in Section TI.8 must also be employed.]
A. Monitoring: Inside the silt curtain (except for areas
below Mean High Water to be filled in association with
construction of the CDF), turbidity monitoring is required at a
reference location established approximately 200-feet up-current
from the dredge and at a monitoring location established 200-feet
down-current from the dredge, unless dredging is conducted within
200 feet of the silt curtain, in which case turbidity monitoring must
be conducted outside of and within 15 feet from the silt curtain and
at a reference site located 200 feet from the silt curtain.
Turbidity standards outlined in Section II.9 must be satisfied.
.. 2. From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards.
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section 9
must be satisfied.
3
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Appendix J(l) TSCA Determination for the South' Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site, located .
200 feet from the silt curtain.. Turbidity standards outlined in
Section II.9 must be satisfied.
d. Filling and Capping At Depths Equal To or Greater Than -5 Meters
MLLW: In all areas (except for filling associated with, construction of the CDF
(addressed in Section II.5.a,) that are not already' enclosed, and compensatory
mitigation activities (addressed in Section II.5.b), where filling (including CAD
cell capping) will occur, the following is required:
1. From January 15 through June 15 of any year, CAD cells'(including
the borrow pit) that are being filled or capped shall be completely
encircled by silt curtains and absorbent booms for the duration of the
filling activity.
I
A. Monitoring: Turbidity monitoring must be conducted outside
of and within 15 feet from the outside edge of silt curtain and at a
reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section II.9 must be satisfied.
2. From June 16 through January 14 of any year, CAD cell filling and
capping may proceed without silt curtains unless necessary to ensure
compliance with turbidity standards.
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and' at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
II.9 must be satisfied.
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the outside edge of silt curtain and at a
reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section 11,9 must be satisfied.
e. Dredging At Depths Equal to or Greater than -5 Meters MLLW: In all
areas where dredging and associated activities such as rock removal will occur in
depths equal to or greater than -5 meters MLLW;
4
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
1. From January 15 through June 15 of any year, silt-curtains and
absorbent booms shall be deployed to enclose all areas being dredged.
'A. Monitoring:, Inside the silt curtain, turbidity monitoring is
required at a reference location established approximately 200-feet
up-current from the dredge and at a monitoring location
established 200-feet down-current from the dredge, unless
dredging is conducted within 200 feet of the silt curtain, in which
case turbidity monitoring must be conducted outside of and within
15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section II.9
(below) must be satisfied.
2. From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards.
A. Monitoring; Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
II.9 must be satisfied.
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located
200 feet from the silt curtain. Turbidity standards outlined in
Section II.9 must be satisfied.
6.. The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit a plan for deployment of silt curtains, absorbent booms, fish weirs
and bubble curtains in accordance,with Section 11.5 to SER PM and to EPA for review
and approval.
. 7. The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit to the SER PM and to EPA for review and approval, a Contingency
Plan, outlining the steps that the contractor will take, should dredging, filling, capping or
rock removal activities cause an exceedanee of the Water Quality Monitoring criteria
outlined within these Performance Standards (see Section II.9). At a minimum, the
Contingency Plan shall include measures that may be undertaken by the contractor to
reduce turbidity such as reduction of the rate of operations, use of silt curtains and
absorbent booms, alternate dredging and capping methodologies, and the total halt of
operations. The Contingency Plan shall also include a provision that if the deployment of
silt-curtains and absorbent booms cannot be implemented in accordance with Section II.5
-------
Appendix J(l) TSCA Determination for the South Terminal Project Attachment 6
New-Bedford Harbor State Enhanced Remedy,
during the period of time from January 15 to June 15 of any year, work in the area may
not begin until June 16 of that year and the SER PM and EPA shall be notified.
8. Fish Deterrent Program - A Fish Deterrent Program in accordance with the Fish
Deterrent Plan in Attachment 1 shall be implemented for any work conducted within
waters shallower than -5, Mean Lower Lowr Water between January 15th and June 15th of
any year. If the Fish Deterrent Program is not implemented in an area shallower than -5
Mean Lower Low Water prior to January 15th of any year, work in the area may not begin
until June 16th of that year. Proposed modifications to the Fish Deterrent Plan must be
submitted to the SER PM and to EPA for review.
9. Water Quality Monitoring Schedule and Methods
a. When. in-water work is contained within a silt-curtained area in accordance
with Section II. 5, the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and once a week
thereafter and during those times when dewatering activities are ongoing from the .
CDF filling operation: .
1. 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.
2. Turbidity shall be measured at both the monitoring and reference site
prior to the start of dredging, and once every two hours during dredging.
3. 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 Over
Reference
<10
'20 NTUs
11-20
; . 15 NTUs
>21
'30% of reference
4. 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
6
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
be collected and submitted for analysis of Total Suspended Solids, total and
dissolved PCBs. and total metals for 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
Commonwealth shall ensure that its contractor takes operational action(s)
designed to limit such exceedances (as outlined within the approved
Contractor's Contingency Plan, see Section II.7), 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 II.9.a until compliance is reestablished.
5. If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the SER PM and EPA, in consultation with the
Environmental Monitor and the Commonwealth's contractors and/or
consultants, shall review the operational actions undertaken, the results of
j the analyses, of the water samples and evaluate the biological significance of;,
the available data. EPA, in consultation with the SER PM and the
Environmental Monitor, shall have final authority to determine the
requirements for additional mitigation, if any.
6. In the event the exceedence occurs during an activity and in an area in
which silt curtains are required from January 15 through June 15 in
accordance with Section II.5, if all additional mitigation measures .exercised
in accordance with Section 11.7, and compliance cannot be reestablished
within 48 hours of the implementation of the additional mitigation measures,
the work shall stop and may not resume again until June 16, unless the
Commonwealth can demonstrate to the satisfaction of EPA that it has
instituted measures sufficient to reestablish compliance and EPA concurs
that work may proceed with such measures.
b. When in-water work is not conducted within a silt curtain area in accordance with
Section II.5 the following water-quality monitoring program shall be carried out daily
for the first three days of activities commencing and twice a week thereafter and
during those times when dewatering activities are ongoing from the CDF filling
operation; - ,
1. 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. :
7
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
2. Turbidity shall be measured at both the reference location and the -
monitoring site (see Section 11,5) prior to the start of dredging, and once
every two hours of dredging. •
3. An exceedanee of the project turbidity standard shall be attributed to
project activities when the average turbidity at, the monitoring site exceeds
the reference site turbidity plus the permissible turbidity increase, as
outlined in the following table:
Reference Site Turbidity (NTUs)
Permissible Turbidity Increase Over
Reference
<10
' ' 20 NTUs
11-20
15 NTUs
21-30
10 NTUs
>31
30% of reference
4. If, in two consecutive monitoring events, the average turbidity at the
monitoring site 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 site and the monitoring site
shall be collected and submitted for analysis of Total Suspended Solids,
total and dissolved PCBs, and total, metals for 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 Commonwealth shall ensure that its contractor takes operational
action(s) designed to limit such exceedences (as outlined within the
approved Contractor's, Contingency Plan, see Section II.7), such as
increasing the dredge cycle time, deployment of silt curtains, 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 II,9.b.iii, until compliance is
reestablished.
5. If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the SER PM and EPA, in consultation with the
Commonwealth's 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. EPA,
in consultation with the SER PM, shall have final approval to determine the
requirements for additional mitigation, if any.
10. 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 piling/debris
8
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Appendix J(l) TSCA Determination for the South Terminal Project.
New Bedford Harbor State Enhanced Remedy
Attachment 6
removal shall be minimized to the greatest extent practicable. Should dredging with the
environmental bucket become infeasiblc or unsuccessful, such dredging must halt and the
SER PM and EPA must be notified. EPA, in consultation with the SER PM, must
approve any contaminated sediment dredging not using the environmental bucket before
such dredging may recommence. The contractor must continue to meet the project Water
Quality Standard Performance Standards when an alternate dredging method is used.
11. Water discharged from the barge shall be appreciably free of suspended sediment
and meet the water quality criteria established in Section II.9. 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 SER PM) prior to discharge.
12. The SER PM and EM shall be responsible for anticipating the heed for and
installation of additional erosion/sediment/turbidity controls and shall have the authority,
subject to EPA review and approval, 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. Within 30 days of the completion of all dredging, all bathymetric surveys of the-'
dredge footprint shall be sent to the SER PM and EPA.
Ill MADEP Chapter 91 Waterways Standards
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Commonwealth to ensure its contractors conform to all terms and conditions herein.
2. Within 90 days after completion of the authorized South Terminal Project work, the
Commonwealth shall require its contractors to furnish to the SER PM a suitable plan
showing the depths at mean low water over all filled (except areas filled above Mean
High Tide) and dredged areas. Dredging 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 Commonwealth shall at
its expense, remove the shoal areas. The Commonwealth shall pay all costs of
supervision, and if at any time the SER PM deems necessary a survey or surveys of
the filled,and dredged areas, the Commonwealth shall pay all costs associated with
such work.
3. The Commonwealth shall ensure that its contractor shall, at least three business days
prior to the commencement of any dredging, and filling in tide water, give written
notice to the SER PM and EPA of the time, location, and amount of the proposed
work. .
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Appendix J(l) TSGA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 6
IV Special Waterways Conditions
1. Dredged material shall be transported to suitable disposal facilities; unregulated
dumping of dredge materials is not permitted.
2. The Commonwealth shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during'dredging and filling activities.
3. The Commonwealth 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 Commonwealth shall maintain vehicular access to water-dependent users
throughout construction activities. As part of the final design plan, the
Commonwealth shall ensure it 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 Commonwealth 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, fish weirs, bubble
curtains, and siltation curtains.
10
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Attachment 1 to Water Quality Performance Standards
FISH DETERRENT PLAN
Project Summary
The New Bedford Marine Commerce Terminal (NBMCT) {see Figure 1 for a site location plan) in
New Bedford Harbor has been promulgated in order to develop a multi-purpose marine
terminal, a primary purpose of which will be to provide critical infrastructure to serve offshore
renewable energy facilities and accommodate international shipping at the new facility. The
proposed facility will also be capable of supporting other industries within New Bedford, and
will beneficially re-use sand from navigational dredging or the construction of confined aquatic
disposal facilities to the extent approved by US EPA.
An assessment of the potential locations for supporting offshore renewable energy facilities
and international shipping completed within the document entitled "State Enhanced Remedy in
New Bedford, South Terminal", promulgated by the Commonwealth on January 18, 2012 has
resulted in the conclusion that South Terminal in New Bedford, Massachusetts is the only
practicable location due to a number of constraints, including: horizontal clearance, jack-up
barge access, overhead clearance, total wharf and yard upland area, berthing space, site
control/availability, and proximity. Due to the lack of other practicable alternatives, and the
avoidance and minimization of impacts to resource areas to the maximum extent practicable,
the South Terminal CDF is the Least Environmentally Damaging Practicable Alternative that will
meet the primary Project Purpose.
During construction of the NBMCT, many activities (including dredging) may have a temporary
detrimental effect to the fish that may be present within New Bedford Harbor. A Fish
Monitoring Workgroup (including members from NMFS, EPA and MassDMF) was convened to
prepare a Fish Deterrent Plan that could be utilized to reduce the impact to fish by excluding
them from a proposed area. The input from the Fish Monitoring Workgroup has been
incorporated into this Fish Deterrent Plan. This Fish Deterrent Plan (FDP) will include all
measures to be taken that will decrease the chance of mortality to marine species of concern
and their spawning activities (where applicable), including: Atlantic sturgeon, Winter and
Windowpane Floudners, Scup, and Anadromous fish species as directed by the National Marine
Fisheries Service (NMFS).
Objectives
l
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The objective of this FDP is to construct the NBMCT without restricting access to daily fishing
traffic and have the "least environmentally damaging as practicable alternative" in place to
deter fish species from the NBMCT construction area, so that none are harmed or inadvertently
"taken." The system is also intended to prevent spawning within the area of work, such that
the eggs of the species in question will not be present when work commences, and therefore
will not be damaged or destroyed. The fish species in question are as noted in the "NMFS
comments on the Draft Determination for South Terminal in New Bedford, MA" dated August
21, 2012 and included below:
• Atlantic Sturgeon;
• Winter Flounder;
• Windowpane Flounder;
• Scup;
• Black Sea Bass.
Methods
Engineered Barriers
A series of engineered barriers will be in place to exclude fish from entering the areas where
dredging and other marine construction are to take place. The barriers will re-direct, but not
otherwise limit vessel traffic in the area of work. The three types of barriers to be erected are a
fish weir, silt curtain, and bubble barrier. Coupled with an extensive monitoring program, the
system is intended to exclude fish from using the area while work is taking place. The layoutof
the engineered barriers is depicted on Figure 2.
Fish Weir
A fish weir is a net which is placed in the water column and extends approximately 4 feet off
the bottom. It is designed to channel ground fish away from the area where work is to take
place. The weir will be placed on the outside of all the engineered barriers in close proximity to
the bubble curtain and silt curtain. A detail of the fish weir is depicted on Figure 3.
Silt Curtains
Turbidity Barriers, also known as turbidity curtains, silt barriers, and silt curtains in the industry
are designed specifically to contain and control the dispersion of floating turbidity and silt in a
water body related to marine construction, pile driving, site work, and dredging activities. Silt
curtains or silt protectors minimize these impacts by improving settling times and settling
suspended solids in a defined area well away from natural resources.
2
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For the NBMCT project, a modified silt curtain will be used both for turbidity control and also as
a fish barrier. Traditional silt curtains may or may not touch the harbor bottom. In the past silt
curtains which do not touch the bottom have been utilized in the Harbor during disposal
activities at CAD Cell #2, and during dredging activities during the posted time of year (TOY)
restriction when water depth is greater than 4 feet. The water depth is critical as when there is
a tidal exchange the bottom of the curtain creates turbidity as it moves up and down in the
mud. The Commonwealth proposes to create a solid barrier extending silt curtains to the
harbor bottom; however the curtain will be modified so that the curtain does riot create
turbidity. Two sections will be at the site of the proposed New Bedford Marine Commerce
Terminal and the third section will be at the proposed CAD Cell #3. The silt curtain will utilize a
tidal flux pocket, the tidal flux pocket consists of a continuous line of floatation running the
length of the silt curtain that is 4 feet from the harbor bottom, ensuring that the portion of the
silt curtain nearest the bottom is always held taut and vertical preventing the contact which
often is the cause of increased turbidity common in traditional silt curtain installations. This
floatation accounts for the tidal range of New Bedford Harbor, which is ± 5 feet. When the tide
is high, the silt curtain will be extended and will be stretched to its full length. When the tide
falls, the floats at the 4 foot level will hold the bottom portion of the silt curtain off of the
harbor floor, while the upper portion of the silt curtain will be supported on one side by the
lower floats and on the other side by the surface floats. This modified silt curtain design will
eliminate potential turbidity generation by the silt curtain, while allowing the silt curtain to
extend from the water surface to the harbor floor. (See cross section Figure 4).
Bubble Barrier
The bubble barrier is a fairly recent addition to the mitigation techniques used in marine
construction. Bubble barriers are, in their simplest form, a perforated pipeline running along
the bottom of a waterway. Compressed air is pushed through the pipeline creating an array of
bubbles along the northern limits of proposed construction site. This barrier carries three
significant functions. First, fish species see the bubble array as a solid barrier, in effect a wall of
air bubbles. Second, the air bubbles dampen sounds created by construction activities. Third,
because the bubble barrier is a non-physical barrier, vessels may still use the existing South
Terminal and Gifford Street channels during construction.
For the NBMCT project, one bubble barrier will be incorporated into the fish barrier. The
bubble barrier will be placed on the northern end of the channel leading from the Gifford Street
Boat Ramp. The bubble barriers and silt curtain will be overlapped to eliminate the potential
for fish swimming around the barriers. A cross section of the barrier is attached as Figure 5.
The combination of fish barrier silt curtain and bubble barrier for a fish barrier system.
3
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Fish Monitoring
After the fish exclusion efforts are installed, a weekly monitoring procedure will be carried out.
This procedure will be first implemented one day after the initial fish exclusion efforts are
undertaken and once a week thereafter. The survey will be done with a sonar fish finder and a
towed video system. The perimeter of the area will be surveyed twice: first to verify the silt
curtain and bubble curtains are in place and second to verify the weir leader net is in place).
Then the dredge area will be surveyed to determine if fish are present using the following
procedure;
• Run transects parallel to shore or depth contours with a randomly selected start point
for each.survey.
• The survey area is approximately 1200 feet in length and runs parallel to shore. Survey
will be run at approximately 1 nautical mile per hour.
• Transects will be spaced 100' on center and will begin 50' from the eastern boundary of
the Silt Curtain.
• Two methods for detecting fish will be utilized: a fish finder used for identifying pelagic
fish schools, and a video surveillance system used to identify flat fish.
• The video method is most appropriate for detecting flat fish. In order to ensure that
visibility is acceptable for the survey, a laser scaling method will be used at each
transect to visually confirm the seafloor.
• If a transect fails the visibility test, the monitoring them can select up to 5 additional
grids to transect.
• If more than 5 transects fail the visibility test, then divers will complete the survey.
Since the camera survey will image at a maximum 3% of the dredge area, the
conservative measure of a single fish being imaged will be used as the threshold for
implementing additional fish exclusion efforts.
The following decision tree will be used for the implementation offish exclusion efforts:
VIDEO
If no flatfish are encountered the area will be considered free offish.
If 1 or more flatfish are encountered fish removal procedure will be initiated.
SONAR
4
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If <5 pelagic schools are encountered on sonar -> the area will be considered free of fish.
If >=5 pelagic school are encountered on sonar fish removal procedure will be initiated.
Reporting
A video monitoring report will be provided.to the Fish Monitoring Workgroup weekly within 4
days of the monitoring. For every video monitoring event the report will describe:
1. The condition of the engineered barriers (silt curtain, bubble curtains, and weir leader
net);
2. The prevalence of flatfish and other fish at the base of the fish exclusion devices;
3. Any actions,taken to improve the conditions of the fish exclusion devices;
4. The total count of grid/transects completed;
5. The total count of grid transects skipped due to visibility - if grid survey method used;
6. Description of any survey alterations due to lack of visibility;
7. Total count of flatfish encountered;
8. Total count of other fish encountered;
9. Total count of schools on the sonar record;
10. Description of any actions taken to remove fish from the area;
11. Any turbidity monitoring exceedances;
12. Recommendations to improve the survey methodology, the fish exclusion devices, or
the fish removal tactics;
13. Field notes from video and sonar survey (note, that the video and sonar data will be
observed in the field but will not be recorded).
Fish Exclusion Efforts
In the event that fish are found to be present during the monitoring surveys {the first video
survey), measures will be taken to use a "fish startle system" to move fish outside the
aforementioned barriers. The bubble barrier will be turned off and fish exclusion techniques
will the deployed. The three different types of systems that will be mounted to the survey
vessel to startle fish species are:
• Light
• Sound
• Tactile
All three systems will be used during all fish startling activities. The light system will include
strobe lights mounted on either side of the helm with extendable poles. The lights range in size
5
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from four to eight feet in length. Range of the color of light projected will vary, as will the
intensity of light emitted. Bright lights have been shown to startle fish in many studies. The
extendable poles will allow the lights to startle fish farther down in the water column than if
the system was mounted to the helm. The sound emitting part of the startle system will be an
underwater speaker capable of sound ranges from 100-1200 hertz. The speaker will hang on a
tether into "the water column. The tactile fish deterrent will be made of a fish net with light
chain hanging to the harbor bottom. The net will be large enough gauge line that the fish will
see it but will have large openings so they are not caught. The system will progress through the
deterrence area at 2-4 knots on a calm day. During the fish startle activities the bubble barrier
will not be active to allow fish to pass through these areas unimpeded (see Figure 7 for
schematic of fish startle boat mount set up). The bubble curtain will then be turned on.
The video survey will be repeated (second video survey). If fish are found again, time
permitting a second attempt at removing the fish will be attempted and the video survey will
be repeated again. If fish are still found in the work area during the third video survey, the
Commonwealth will, re-inspect the integrity of the fish exclusion methodology. If there is a
breach or other issue with implementation of the fish exclusion methodology, it will be repaired
and monitoring will begin again.
If, after one month of deployment, the fish exclusion methodology does not appear to be
meeting all of the goals of the fish exclusion program, the Commonwealth will meet with the
Fish Monitoring Workgroup (FMW), the Commonwealth's monitoring team, and others with
relevant expertise, to discuss issues and potential mitigation measures. The procedures
implemented will be reviewed with the FMW, and potential alternate methods for monitoring
and/or silt curtain maintenance, mitigation, or additional fish exclusion methods will be
discussed.
Once a breach, issue, or problem, or once a potential alteration/mitigation measure is
implemented, the monitoring will begin again to determine its effectiveness. Should fish be
found in three consecutive video surveys after implementation of the mitigation measure, the
Commonwealth will first re-inspect the integrity Of the fish exclusion methodology. If there is a
breach or otherwise issue with implementation of the fish exclusion methodology, it will be
repaired and monitoring will begin again. Otherwise, either a subsequent alteration/mitigation
measure will be implemented, or a meeting with the FMW will be scheduled to discuss whether
or not modifications to the engineering controls could be made.
6
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184 High Street, Suite 502
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-------
FISH WEIR.
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-------
SPECIFICATIONS
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Boston, Massachusetts
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-------
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Phone: (617) 728-0070
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Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 7
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 South Terminal Project upland work.
The means and methods shall be designed and implemented in a manner that
minimizes airborne PCBs, particulates, lead, and asbestos, if present, to the
maximum degree practicable. . The Plan will detail the means and methods to be
used to maintain airborne contaminant levels at the performance standards
specified in Item 4, below. The Plan will be in effect continuously until
completion of the work. "
b. A description of how the Commonwealth 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 detennine 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. The Commonwealth must first propose, and EPA must approve, the method
for the comparative analysis prior to its implementation.
1
-------
Appendix J(l) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 7
3, The Commonwealth shall use best management practices to comply at all times during
performance of the work, with air quality performance standards. Except for the
transportation corridors, a fence shall be constructed along the contiguous upland parcel
boundaries during all work activities and the point of compliance for air quality
performance standards shall be the fence line. Except for the transportation corridors, on
the non-contiguous parcels a fence shall be constructed along the property boundary
during all work activities and the point of compliance for air quality performance
standards shall be the fence line.
4. PMio results are used to provide information about the effectiveness of emission controls
and thus when kept under control, emissions from other contaminants, such as PCBs and
asbestos, will also be controlled. In order to better control conditions during the Project,
tiered action levels based on real time PMio results shall be taken. The Commonwealth
shall initiate dust controls at levels lower than the 100 (ig/m3 10-hour TWA, and shall
apply these action levels to shorter time periods as specified below. At no time during
the performance of the remedial work shall levels exceed the following standards:
::v£ ...
•V? :MEASU|Sb,LEVEE
Airborne Particulates
(PMio)
Any visible dust emissions
from Project activities
Implement corrective
measures to control dust
(e.g., water sprays)
Airborne Particulates (a)
(PMio)
> 75 (ig/'mj
Increase application rate of
dust controls
Airborne Particulates 150 ng/m3
Continue wetting of source
area. Suspend Project
activities and notify EPA
Airborne Particulates (b)
(PMio)
> 100 (ig/m3
Continue wetting of source
area. Suspend Project
activities and notify EPA
: Airborne PCBs (b)
>0.10 (ig/m3
Suspend Project activities
and notify EPA -
Airborne asbestos
> 0.1 iiber/cc
Suspend Project activities
and notify EPA
Airborne Lead
>50 jig/nr
Suspend Project activities
and notify EPA
{a) Based on 5 -minute average TEOM® data or equivalent .
-------
Appendix J(1) TSCA Determination for the South Terminal Project Attachment 7
New Bedford Harbor State Enhanced Remedy
6. In the event of an exceedanee and work stoppage is required, the Commonwealth shall
submit a proposed corrective action plan to address the exceedanee. Work shall resume
only with EPA's approval and upon implementation of the corrective action plan.
3
-------
I.
-------
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-------
EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix J(2)
Second Modification to the November 12, 2008
TSCA 40 C.F.R. § 761.61(c) Determination, as amended
on June 18, 2012
-------
EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(2)
Second Modification to November 12,2008 TSCA § 761.61(c) Determination
Based on prior manufacturing operations in New Bedford and at the South Terminal Project area,
PCB-contaminated sediment and soils likely meet the definition of a PCB remediation waste as
defined under 40 CFR Section 761.3 and thus are regulated for cleanup and disposal under
40 CFR Part 761.
In its November 12, 2008 TSCA Determination (TSCA 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 TSCA 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 TSCA 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 that certain conditions were met, including but not limited to compliance with all
conditions contained in the November 12, 2008 TSCA Determination (see Attachments 1 and 2).
This Second Modification to the TSCA Determination is included in EPA's Final Determination in
which EPA determined that inclusion of a 28.45 acre marine terminal consisting of 6.91 acres of
filled waters (referred to as "the confined disposal facility" or the "CDF") and approximately
21.54 acres of upland area, (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 ("CAD cells")
(collectively, the "Project" or the "South Terminal Project") into the New Bedford Harbor State
Enhanced Remedy ("SER") is protective and meets all substantive federal and state requirements.
CDF construction will include dredging of sediments within the CDF footprint that will be
disposed of into a newly designed CAD cell #3 which disposal will be subject to a separate TSCA
Determination. Construction of the CAD cell #3 will require removal of PCB-contaminated
sediments which will be disposed of within existing CAD cell #2 which disposal is the subject of
this TSCA Determination.
-------
EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix J(2)
In accordance with the requirements under the Toxic Substances Control Act (TSCA) and 40 CFR
Section 761.61(c), and based on information provided in the Administrative Record, I have
determined that disposal of the CAD cell #3 sediments 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 3 to this TSCA Determination is maintained, at a minimum. (Attachment 3
may also be found at Appendix C to EPA's Final Determination);
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, as modified; and,
3. Any dredged material that accidentlv 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 Second 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 Second Modification to the TSCA Determination
or issue a new TSCA determination based on the proposed change(s).
Attachment 1: November 12, 2008 TSCA Determination
Attachment 2: June 18, 2012 Modification to November 12, 2008 TSCA Determination
Attachment 3: State Enhanced Remedy - Water Quality and Turbidity Performance Standards
Date
2
-------
A+foJimenf' I.
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; ~
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, Hie 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 iftay 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
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Figure I: CAD #2 Location
-------
1..
Modification to 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-Dcsign Work Plan and Section 01135 of the November 2008 Phase III
Contact Specifications for the New Bedford Harbor navigational dredging.
The Massachusetts Department of Environmental Protection (MassDEP) has submitted a request
for a modification to the Determination to include disposal of approximately 6,000 cubic yards of
PCB-contaminated sediment that will be generated by AGM Marine, Inc. from its property located
at 7 Fish Island into CAD Cell #2. A map of the proposed area to be dredged is attached as
Attachment A to this Modification. PCB concentrations in this sediment range from 6.8 ppm to
23.3 ppm. Documents dated July 24, 2008; December 9,2008; June 22, 2009; May 2, 2012; and,
May 16,2012 were provided in support of this Modification. A Dredge Material Dewatering and
Handling Procedures plan dated'May 25,2012 was also provided. See Attachment B for a list of
these documents.
Consistent with Section 761.61(c) of the Toxic Substances Control Act (TSCA) I have reviewed
these documents regarding the proposed work and have determined that disposal of this <50 ppm
PCB-contaminated sediment into CAD Cell #2 will not pose an unreasonable risk to human health
or the environment provided the following conditions are met.
1. Compliance with the May 25, 2012 Dredge Material Dewatering and Handling Procedures
plan and specified water quality monitoring and turbidity performance standards is maintained
during all disposal operations.
2. Water quality and turbidity monitoring shall be conducted during disposal operations at the
following frequencies: '
a. Turbidity shall be measured at both the reference location and the disposal location
(CAD Cell #2), prior to the start of each disposal event and within 30 minutes
following completion of each disposal event.
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 GAD Cell #2.
4. Continuing compliance with all conditions contained in the November 12, 2008 TSCA ¦
Determination.
Page 1 of2
-------
This Modification to the November 12,2008 TSCA Determination is based on the information
contained in the July 24,2008; December 9,2008; June 22,2009; May 2,2012; and, May 16,2012
and May 25, 2012 submittals. 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).
Date
Attachment A: Map of AGM Proposed Dredging Area
Attachment B: List of Documents
Page 2 of 2
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-------
Attachment B to Modification of November 12, 2008 TSCA Determination
- List of Documents Reviewed
1. July 24, 2008 Letter and attachments to David Dickerson, EPA from Chet Myers,
Apex, regarding TSGA Determination. AGM Marine, Inc., New Bedford,
Massachusetts
2. December 9, 2008 Order of Conditions - MassDEP Bureau of Resource
Protection - Wetlands including General and Special Conditions of City of New
Bedford.
3. June 22, 2009 Clean Water Act Section 401 Water Quality Certification letter
from Glenn Hass, Acting Assistant Commissioner, Bureau Resource Protection to
John Mikutowicz, AGM Marine Contractors, Inc.
4. May 2, 2012 Letter and attachments from Paul Craffey, MassDEP to Kimberly
Tisa, EPA regarding TSCA Determination Modification - AGM Marine, Inc.
5. May 16,2012 Letter and attachments from Paul Craffey, MassDEP to Kimberly
Tisa, EPA regarding TSCA Determination Modification Update - AGM Marine,
Inc.
6. May 25, 2012 Letter from Jonah Mikutowicz, AGM Marine Contractors, Inc. to
Paul Craffey, MassDEP transmitting Dredge Material Dewatering and Handling
Procedures Plan.
-------
Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford Harbor- State Enhanced, Remedy
Attachment 3
Water Quality Performance Standards
I. Introduction
1. These Water Quality Performance Standards ("Performance Standards") shall apply to the.
South Terminal Project as defined by EPA's Final Determination for the,South Terminal
Project issued on November 19, 2012,
2. The Commonwealth of Massachusetts is the lead agency for the State Enhanced Remedy .
work, and has a designated State Enhanced Remedy Project Manager ("SER PM"), ,
3. Pursuant to the Memorandum of Agreement entered into between EPA and the
Commonwealth in 2005 relative to the New Bedford Harbor State Enhanced Remedy, the
SER PM shall continue to coordinate with the Regulatory Agencies for this South
Terminal Project. In addition, to ensure consistency with EPA's Final Determination
for the South Terminal Project, EPA shall have review and approval authority as
described in these Water Quality Performance Standards.
4. No modifications may be made to these Water Quality Performance Standards without prior
written agreement of EPA.
5. In the event of a conflict between these Performance Standards and the Final Mitigation Plan
included in EPA's Final Determination, the Final Mitigation Plan shall prevail.
II ' MADEP 401 Water Quality Program Standards:
1. Anti-degradation provisions of the Massachusetts Surface Water Quality Standards
protect all- waters, including wetlands. The Commonwealth shall ensure that all
necessary steps are taken to assure that the proposed activities will be conducted in a
manner, which will avoid violations of said standards.
2. Environmental Monitor. The Commonwealth shall ensure that the contractor shall
employ an "Environmental Monitor" (EM) and that the contract requires the EM to report
directly to the SER PM and EPA. 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 SER PM and the
Regulatory Agencies so that s/he may be contacted on a 24-hour basis, seven days a
-------
Appendix J(2) TSCA Determination for the South Terminal Project Attachment 3
New Bedford Harbor State Enhanced Remedy
week to address any emergency situation. The EM shall be authorized to contact the SER
PM and EPA directly for any matter involving wetland protection. The EM shall submit
bi-weekly reports to the SER PM and EPA, following the commencement of construction
and continuing until completion of the work in resource areas. The bi-weekly reports
shall summarized, 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.
3. All in-water work shall meet EPA's Final Determination conditions to protect aquatic
life, including winter flounder spawning & the alewife fish run that passes through the
harbor to the Acushnet Sawmill Pond spawning area.
4. A Storm Water Pollution Prevention Plan (SWPPP) for the entire project as required by
EPA's Final Determination, 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 SER PM for prior review and written approval prior to
commencement of construction. 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 EPA's NPDES
Construction Stormwater 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 specific measures to be taken to adjust the pH to acceptable limits
[for example, carbon dioxide (C02) bubbling when concrete pouring is also
occurring]. •
5. The Commonwealth shall ensure that the contractor, shall implement the use of silt
curtains and absorbent booms, and/or the Fish Deterrent Program as outlined below:
.. ' ' ;
a. CDF Filling; At all times of year, when filling below Mean High Water
occurs in association with construction of the CDF, the area being filled shall
either be completely encircled with steel sheet piling, or completely encircled
with a combination of steel sheet piling and silt curtains, or completely encircled
with silt curtains. ...
1- Monitoring: Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section II.9 must be
satisfied.
2
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Appendix J(2) TSCA Determination for the South Terminal Project Attachment 3
New Bedford Harbor State Enhanced Remedy
b. Compensatory Mitigation: At any depth and at all times of year, all areas
where, there is filling and capping associated with compensatory mitigation
(i.e. winter flounder mitigation creation and intertidal and subtidal mitigation
capping) will be completely encircled by silt curtains and absorbent booms for the
duration of the filling and capping activity.
1. Monitoring: Turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located 200 feet .
from the silt curtain. Turbidity standards outlined in Section II.9 must be
satisfied.
c. Dredging, Filling Capping, and Rock Removal at Depths Shallower Than
-5 Meters MLLW: In all areas where dredging, filling (except for filling below
Mean High Water associated with construction of the CDF, addressed in
Section,II.5.a, and compensatory mitigation activities, addressed in Section
Il.S.b.). capping, and other activities such as rock removal will occur, the
following is required:
1. From January 15 through June 15 of any year, the Fish Deterrent •
Program (see Section 11.8 and Attachment 1) must be implemented.
This Program requires that absorbent booms, silt curtains, bubble curtains
and fish weirs be erected around the work area to prevent fish, particularly
winter flounder, from entering the work area. [Note: other Fish Deterrent
. Program requirements as specified in Section II. 8 must also be employed.]
A. Monitoring: ¦ Inside the silt curtain (except for areas
below Mean High Water to be filled in association with
construction of the CDF), turbidity monitoring is required at a
reference location established approximately 200-lcet up-current
•, .from the dredge and at a monitoring location established 200-feet
down-current from the dredge, unless dredging is conducted within
200 feet of the silt curtain, in which case turbidity monitoring must
be conducted outside of and within 15 feet from the silt curtain and
at a reference site located 200 feet from the silt curtain.
Turbidity standards outlined in Section II.9 must be satisfied.
2. From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards. .
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section 9
must be satisfied.
3'
-------
Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 3
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located
200 feet from the silt curtain. Turbidity standards outlined in
Section 11.9 must be satisfied.
d. Filling and Capping At Depths Equal To or Greater Than -5 Meters
MLLW: In all areas (except for filling associated with construction of the CDF
(addressed in Section II.5.a,) that are not already enclosed, and compensatory
mitigation activities .(addressed in Section II.5.b), where filling (including CAD
cell capping) will occur, the following is required: .
1. From January 15 through June 15 of any year, CAD cells (including
the borrow pit) that are being filled or capped shall be completely
encircled by silt curtains and absorbent booms for the duration of the
filling activity. ' .
A.- Monitoring: Turbidity monitoring must be conducted outside
of and within 15 feet from the outside edge of silt curtain and at a
- reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section II.9 must be satisfied.
2. From June 16 through January 14 of any year, CAD cell filling and
capping may proceed without silt curtains unless necessary to ensure
compliance with turbidity standards.
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
II.9 must be satisfied. ,
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the outside edge of silt curtain and at a
reference site located 200 feet from the silt curtain. Turbidity
standards outlined in Section II.9 must be satisfied. •
e. Dredging At Depths Equal to or Greater than -5 Meters MLLW: In all
areas where, dredging and associated activities such as rock removal will occur in
depths equal to or greater than -5 meters MLLW:
4
-------
Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 3
1. From January 15 through June 15 of arty year, silt-curtains and
absorbent booms shall be deployed to enclose all areas being dredged.
A. Monitoring: • Inside the silt curtain, turbidity monitoring is
required at a reference location established approximately 200-feet
up-current from the dredge and at a monitoring location
established 200-feet down-current from the dredge, unless
dredging is conducted within 200 feet of the silt curtain, in which;
case turbidity monitoring must be conducted outside of and within
15 feet from the silt curtain and at a reference site located 200 feet
from the silt curtain. Turbidity standards outlined in Section 11,9
(below) must be satisfied.
2, From June 16 through January 14 of any year, work may proceed
without silt curtains unless necessary to ensure compliance with turbidity
standards. ,
A. Monitoring: Turbidity monitoring is required at a reference
location established approximately 200-feet up-current from the
dredge and at a monitoring location established 200-feet down-
current from the dredge. Turbidity standards outlined in Section
II.9 must be satisfied. ,
B. If silt curtains are deployed to ensure compliance with turbidity
standards, turbidity monitoring must be conducted outside of and
within 15 feet from the silt curtain and at a reference site located •
200 feet from the silt curtain. Turbidity standards outlined in
Section IL9 must be satisfied.
6. The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit a plan for deployment of silt curtains, absorbent booms, fish weirs
and bubble curtains in accordance with Section II.5 to SER PM and to EPA for review
and approval.
7. The Commonwealth shall ensure that the contractor shall, prior to the start of any in-
water work, submit to the SER PM and to EPA for review and approval, a Contingency
Plan, outlining the steps that the contractor will take, should dredging, filling, capping or
rock removal activities cause an exceedance of the Water Quality Monitoring criteria
outlined within these Performance Standards (see Section II.9). At a minimum, the
Contingency Plan shall include measures that may be undertaken by the contractor to
reduce turbidity such as reduction of the rate of operations, use of silt curtains and
absorbent booms, alternate dredging and capping methodologies, and the total halt of
operations. The Contingency Plan shall also include a provision that if the deployment of
silt-curtains and absorbent booms cannot be implemented in accordance with Section II.5
5
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Appendix J(2) TSCA Determination for the South Terminal Project\
New Bedford Harbor State Enhanced Remedy
Attachment 3
during the period of time from January 15 to June 15 of any year, work in the area may
not begin until June 16 of that year and the SER PM and EPA shall be notified.
8. Fish Deterrent Program - A Fish Deterrent Program in accordance with the Fish
Deterrent Plan in Attachment 1 shall be implemented for any work conducted within
waters shallower than -5 Mean Lower Low Water between January 15th and June 15th of
any year. If the Fish Deterrent Program is not implemented in an area shallower than -5
Mean Lower Low Water prior to January 15th of any year, work in the area may not begin
until June 16th of that year. Proposed modifications to the Fish Deterrent Plan must be
submitted to the SER PM and to EPA for review. 1
9. Water Quality Monitoring Schedule and Methods
a. When in-water work is contained within a silt-curtained area in accordance ¦
with Section 11.5. the following water-quality monitoring program shall be carried
out daily for the first three days of activities commencing and once a week
thereafter and during those times when dewatering activities are ongoing from the
CDF filling operation:
. 1. 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.- .
2, Turbidity shall be measured at both the monitoring and reference site
prior to the start of dredging, and once every two hours during dredging.
3. An exeeedanee 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 Over
Reference
<10
20 NTUs '
11-20
15 NTUs
>21
30% of reference
4. 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
6
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Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford' Harbor State Enhanced Remedy
Attachment 3
be collected and submitted for analysis of Total Suspended Solids, total and
dissolved PCBs, and total metals for 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
Commonwealth shall ensure that its contractor takes operational action(s)
designed to limit such exeeedances (as outlined within the approved
Contractor's Contingency Plan, see Section II.7), 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 II.9.a until compliance is reestablished.
5. If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the' SER PM and EPA, in consultation with the
Environmental Monitor and the Commonwealth's 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. EPA, in consultation with the SER PM and the
Environmental Monitor, shall have final authority to determine the
requirements for additional mitigation,'if any.
6. In the event the exceedence occurs during an activity and in an area in
which silt curtains are required from January 15 through June 15 in
accordance with Section II. 5, if all additional mitigation measures exercised
in accordance with Section II.7, and compliance .cannot be reestablished
within 48 hours of the implementation of the additional mitigation measures,
the work shall stop and may not resume again until June 16, unless the
Commonwealth can demonstrate to the satisfaction of EPA that it has
instituted measures sufficient to reestablish compliance and EPA concurs
. that work may' proceed with such measures.
b. When in-water work is not conducted within a silt curtain area in accordance with
Section II.5 the following water-quality monitoring program shall be carried out daily
for the first three- days of activities commencing and twice a week thereafter and
during those times when dewatering activities are ongoing from the CDF filling
operation: .
1, 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.
7
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Appendix j(2) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 3
2. Turbidity shall be measured at both the reference location and the
monitoring site'(see Section II.5) prior to the start of dredging, and once
every two hours of dredging.
3. An exceedance of the project turbidity standard shall be attributed to
project activities when the average turbidity at the monitoring site exceeds
the reference site turbidity plus the permissible turbidity increase, as
outlined in the following table:
Reference Site Turbidity (NTUs) .
Permissible Turbidity Increase Over
Reference
<10
-¦ 20 NTUs
11-20
¦ 15 NTUs
21-30
10 NTUs
>31
30% of reference
4. If, in two consecutive monitoring events, the average turbidity at the
monitoring site 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 site and the monitoring site
shall be collected and submitted for analysis of Total Suspended Solids,
total and dissolved PCBs. and total metals for 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 Commonwealth shall ensure that its contractor takes operational
action(s) designed to limit such exceedences (as outlined within the
approved Contractor's Contingency Plan, see Section II.7), such as
, increasing the dredge cycle time, deployment of silt curtains, 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 II.9.b.iii, until compliance is
reestablished. .
5. If compliance cannot be reestablished within 48 hours, in-water work
shall cease and the SER PM and EPA, in consultation with the
Commonwealth's 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. EPA,
in consultation with the SER PM, shall have final approval to determine the
requirements for additional mitigation, if any.
10. 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 piling/debris
8
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Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 3
removal shall be minimized to the greatest extent practicable. Should dredging with the
environmental bucket become infeasible or unsuccessful, such dredging must halt and the
SER PM and EPA must be notified. EPA, in consultation with the SER PM, must
approve any contaminated sediment dredging not using the environmental bucket before
'such dredging may recommence. The contractor must continue to meet the project Water
Quality Standard Performance Standards when an alternate dredging method is used.
11. Water discharged from the barge shall be appreciably free of suspended sediment
and meet the water quality criteria established in' Section 11,9. 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 SER PM) prior to discharge,
12. The SER PM and EM shall be responsible for anticipating the need for and
installation of additional erosion/sediment/turbidity: controls and shall have the authority,
subject to EPA review and approval, 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. Within 30 days of the completion of all dredging, all bathymetric surveys of the
dredge footprint shall be sent to the SER PM and EPA.
Ill MADEP Chapter 91 Waterways Standards
1. Acceptance of these Waterways Conditions shall constitute an agreement by the
Commonwealth to ensure its contractors conform to all terms and conditions herein..
2. Within 90 days after completion of the authorized South Terminal Project work, the
Commonwealth shall require its contractors to furnish to the SER PM a suitable plan
showing the depths at mean low water over all filled (except areas filled above Mean
High Tide) and dredged, areas. Dredging 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 Commonwealth shall at
its expense, remove the shoal areas. The Commonwealth shall pay all costs of
supervision, and if at any time the SER PM deems necessary a survey or surveys of
the filled and dredged areas, the Commonwealth shall pay all costs associated with
such work.
3. The Commonwealth shall ensure that its contractor shall, at least three business days
prior to the commencement of any dredging and filling in tide water, give written
notice to the SER PM and EPA of the time, location, and amount of the proposed
work.
9
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Appendix J(2) TSCA Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Attachment 3
IV Special Waterways Conditions
1. Dredged material shall be transported to suitable disposal facilities; unregulated
dumping of dredge materials is not permitted.
2. The Commonwealth shall develop and implement a Navigation Plan to address and
mitigate temporary impacts to navigation during dredging and filling activities.
3. The Commonwealth 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 Commonwealth shall maintain vehicular access to water-dependent users
throughout construction activities. As part of the final design plan, the
Commonwealth shall ensure it 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 Commonwealth 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, fish weirs, bubble
curtains, and siltation curtains.
10
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Attachment 1 to Water Quality Performance Standards
FISH DETERRENT PLAN
Project Summary
The New Bedford Marine Commerce Terminal (NBMCT) (see Figure 1 for a site location plan) in
New Bedford Harbor has been promulgated in order to develop a multi-purpose marine
terminal, a primary purpose of which will be to provide critical infrastructure to serve offshore
renewable energy facilities and accommodate international shipping at the new facility. The
proposed facility will also be capable of supporting other industries within New Bedford, and
will beneficially re-use sand from navigational dredging or the construction of confined aquatic
disposal facilities to the extent approved by US EPA.
An assessment of the potential locations for supporting offshore renewable energy facilities
and international shipping completed within the document entitled "State Enhanced Remedy in
New Bedford, South Terminal", promulgated by the Commonwealth on January 18; 2012 has
resulted in the conclusion that South Terminal in New Bedford, Massachusetts is the only
practicable location due to a number of constraints, including: horizontal clearance, jack-up
barge access, overhead clearance, total wharf and yard upland area, berthing space, site
control/availability, and proximity. Due to the lack of other practicable alternatives, and the
avoidance and minimization of impacts to resource areas to the maximum extent practicable,
the South Terminal CDF is the Least Environmentally Damaging Practicable Alternative that will
meet the primary Project Purpose.
During construction of the NBMCT, many activities {including dredging) may have a temporary
detrimental, effect to the fish that may be present within New Bedford Harbor. A Fish
Monitoring Workgroup (including members from NMFS, EPA and MassDMF) was convened to
prepare a Fish Deterrent Plan that could be utilized to reduce the impact to fish by excluding
them from a proposed area. The input from the Fish Monitoring Workgroup has been
incorporated into this Fish Deterrent Plan. This Fish Deterrent Plan (FDP) will include all
measures to be taken that will decrease the chance of mortality to marine species of concern
and their spawning activities (where applicable), including: Atlantic sturgeon, Winter and
Windowpane Floudners, Scup, and Anadromous fish species as directed by the National Marine
Fisheries Service (NMFS).
Objectives
1
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The objective of this FDP is to construct the NBMCT without restricting access to daily fishing
traffic and have the "least environmentally damaging as practicable alternative" in place to
deter fish species from the NBMCT construction area, so that none are harmed or inadvertently
"taken." The system is also intended to prevent spawning within the area of work, such that
the eggs of the species in question will not be present when work commences, and therefore
will not be damaged or destroyed. The fish species in question are as noted in the "NMFS
comments on the Draft Determination for South Terminal in New Bedford, MA" dated August
21, 2012 and included below:
• Atlantic Sturgeon;
• Winter Flounder;
• Windowpane Flounder;
• Scup;
• Black Sea Bass.
Methods
Engineered Barriers
A series of engineered barriers will be in place to exclude fish from entering the areas where
dredging and other marine construction are to take place. The barriers will re-direct, but not
otherwise limit vessel traffic in the area of work. The three types of barriers to be erected are a
fish weir, silt curtain, and bubble barrier. Coupled with an extensive monitoring program, the
system is intended to exclude fish from using the area while work is taking place. The layout of
the engineered barriers is depicted on Figure 2.
Fish Weir . .
A fish weir is a net which is placed in the water column and extends approximately 4 feet off
the bottom. It is designed to channel ground fish away from the area where work is to take
place. The weir will be placed on the outside of all the engineered barriers in close proximity to
the bubble curtain and silt curtain. A detail of the fish weir is depicted on Figure 3.
Silt Curtains
Turbidity Barriers, also known as turbidity curtains, silt barriers, and silt curtains in the industry
are designed specifically to contain and control the dispersion of floating turbidity and silt in a
water body related to marine construction, pile driving, site work, and dredging activities. Silt
curtains or silt protectors minimize these impacts by improving settling times and settling
suspended solids in a defined area well away from natural resources.
2
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For the NBMCT project, a modified silt curtain will be usedboth for turbidity contrpkandjalsp-as
a fish barrier. Traditional silt curtains may or may not touch the harbpr bottom. In the past silt
curtains which, ¦*•'-•- r-'-js ^Vis ~*iy<*'*' ':'V ¦.'Tv^r5;" * v ; •
often is the cause of increased tuRbidity..comrnon,in traditional silt curtain installations. This
mn ¦: -
floatation accounts for the ti^al,£ange Qf.^ew Bedford Harbor-, which i;s,± 5,_fe<2t. W-hjen the tide
is high, th.e silt curtain will' be ejdended'and will'be stretched' to/itstulilengthVWHgn' the tidg
falls, the floats at the 4. foot level will hold the bottom portion of the silt curtain off of the
harbpr floor, while the upper portion of th| silt curtairvwJIP'be supported on one sifle by the
lower flpats-and "on'tHeother'si|e'!iy"|h'e' surface.floats;'*This rnodjfiei *§ilt .curtain' design will
eliminate ,0ot:enj§iai'":'tur;bi'dit^':&y 1% silt'curtain, white' gljpwing the'silt* curtain tp
extend #©1*1 |Kfe'^a|eF surface t'l IHii'-nWiipirt&^r.'
Bubble Barrier : ••• •! - >-• •/. • -
The bubble barrier is a fairly recent addition to the mitigation techniques: use.din marine
cpnstruetifni Bubb'lenbarriers,are);jnvtheipiSii!nplest-foriTi:,. a;perfoxated; pjpgline cunning ilong
the bpttompf a^aterwayi i9|fltrs^§^^fe^W5hgd|4|brfy|f!<^jg..:glBg|i|ig creating,an' array pf
bubbles,along the no,rthern; limits. Qf proposed. construction site;;' This feirfiep ®arnies three
significant functipns, First, fish species see Jhe;b,ub.ble array as a sgjid barrier^ in pfegl..a wal| pf
air bubbles. Second, the air bubbles dampen spunds created by construction activities. Thifd?
because the bubble* barfier is 'bafriefl'ye'ssets"may stlij use th# existing South
Terminal andJSiffprd Street channels during construction,
For the NBMCT project, one bubble barrier,will, be incorporated into, the fish barrier. The
- • r -¦*. - -• 1 «->•*? *,r ¦ i "w-1 - v K" ""'.j ¦ $ «fT.?rs'r ¦ 'T' • • «• . . '•>-.3r • j? v •,
bubble barrier will be placed on the northern end of the channel leading from the (Siffprd Street
Boat Ramp. The'^bb|'er,barr-iers'-and:silt'tcfrtaTn ;wiil;ibe bverlapped'tp eliminate the potential
for fish swimming around the barriers. A cross section of the barrier is attached as Figure 5.
The combination of fish barrier silt curtain and bubble barrier for a fish barrier system,
-------
"flsh Monitoring ' - ¦ ••• • '••• "Af»' • ' ' ••
^fter the. fish exc\usioo efforts ar.e jnstal.le,d,.a wejeklyjrionitpr^ be,carried out.
•.This procedure wiH^be first, implerpjented ©,ne. day efforts., are
undertaken and once a week thereafter, ,The survey,will,be .done with,a sonar fish,finder, anda
towed yideo system.^Ihe. J?erira.etgr : j ... . ;>;v- . i.'hit 7'"* H ; »¦' :• ,.""r" i-V* •'<
visibility is acceptable for the survey, a laser scaling method will be used at each, ,
r"' •' 'Stffi't- ¦*&*¦ Wf-Zimn-* r. -V •.••••:•£; tr . .• s \ s
transect to visually confirm the seafl'oor.
• If a transect fails the visibility test, the monitoring them can select up to 5 additional"
' grids-totransect: - < Vy ' i'-v •• ; «• ¦ • ••• >'
'• .; If more thanS tri'nsectsfail^the;visibility^^^testi'theri^divefs'&iireompiifet'he'sW^^^
•••* • Since'the-teamera^irVey WillH'magt,at,.a.-maximuiTf3%i©f»t'Nie #edg6-:a^a) the','«"''; -
conservative me'asureidf f'Singl'e'fish;beihi'imaged.!wili%&used asthethresh6rdfof ¦ '
¦ implementing additional fish-'excltisio^elfol^s^^^'''''-••¦¦ . ••
The following decision tree will be used for the implementation of fish exclusion efforts:.
VIDEO '• - • • s - •;
If no flatfiMare'encbunterei^'iKlarea wlPl^'cS'n^Sereci#ee offish:" '::-
/<' ;•••" f. H"n r'ifjrii-tf. " h; '••>>¦ "•
,.lf l;br;rnore;flatfish.are ene%uj|ered3^lish-.reviij0.yal:.p|ocedur§jWiJlrbe(ini;t!at>ed., • 7. ... .
son^r ' •' '¦ :iW' ' '
"4
-------
•:]fi pt e I a gi c- seh tfo'l s* a re, e rj t e red ?Q,n "so.m a r- -3^ fhe..ar,eafwill%e':6bnsiclered free of fish.-. ,«
If >=S pelagic school are encountered on sonar => fish removal procedure will be initiated.
y&lvvfV.-if r$ 'C-iJCd VM *$*¦.' r<-^' i; :»"r. rf* ;r«-7>' • Ts"t"v c" !';<'••*'« u v':''v •
vj****»**•* ^i;,"v> •" •• '»••*•••
, .. "~v.i f i=3 "»»•?' • --v. ' ¦¦
¦ i, r, - H •" ?•/'• • >'; c ic •:!*• - ,-i v«c jrr«.a- "„•*•'*. • -v.. • ;«(•»• •. . • . ¦• •,
days.pf'the.montfo.r^ng.. Pfjp,6yeny,vldj|0„,mp||tor:lnj|jeytPt,tH§ rej^i^wjll describee;,,.,,
it'' f||f^pR^jt!o.n'fcf:||tf lengjite&re6f'tfaJrieVs {s!It'cu*rtain/ bubble 'curtains,' arid weir I.eader
'' * '"Rft]! 'y • ' -•'••' '' ' ''¦¦'¦• '¦" •''••' "••"•'•J>- !
2. The:Rr-#alen|e'Qf-flltflsh':ahd 'gthef'fish-at the ba.'se of-thefish«ex6lUsion--devices;- •••
% Any actions taken to improve the conditions of the fish exclusion devises;
v " ' !>n 1 ¦ ' '
' §i?'f Wie^tfa! c'puntPf
•*"|i ' •'•-h • •.*• v- ;••*.'• '
;.. j Tk.vp9.|aicp^|rt;^t^agf^ j.- .^v r-„:••;••• v.
;,8(..,iTgtal;'COu.rit^pf;pthei;;fish jenpouptepedj,.,,;.*.• „,t;. , ¦ . v ..
9. "Tptflcount of schools on the sonar record;
10. Description of any actions taken to remove fish from the area;
-- ¦ ¦¦> •-»' *' ... •
12. Recommendations to improve.th<2 survey methodology, the fish exclusion .devices, or
. t. thejispremPY|l'tactics; ".
• '' yiBep'anM's^nir5 survey:"(not*e. th*at"!fh;eVlile*p ind.spna.r data wil|' be
pi$lijpsl||§ld4j|ffp^f' ^ ,t , ,, .',. t,.,- -....., - < .
jn ,the fvg.pt.that fish^aje.,found, to, be present-duqng the.n^onitprlng surveys,, (the .first video
i;syryey)js measures. wiJJ,,be;taken ^^fl^h^.stafjtle. system'' tp/..mpve,(fish outside{,the
aforementionedvbarriers.. The bubble barrier wili be turned off. and fish exclusion techniques
yviJ|ithe,4|Bloyed . The, tj^ree;.^[ffiepe^|. tpes of systeiTis.that will bef ijipunteditp the survey
vessel to star^lejiskspecies.are; ... - •• , . ;
^ **• j Hight;'*;'';' ; v v- • : •'•'¦¦ :' ; ' ' ¦
• • %¦: t ;&v v4®-;.'sr*1 i» v .r. <• • • .• . v
t Sound • _ •
'•*'Tactile" " •' ' ' " " '
All three systems will be used during all fish startling activities. The light system will include
strobe lights mounted on either sjde of the helm with extendable poles. The lights range in size
5
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from fours to eight .feetJndength^Range of- the'color;•'dfilightfpnoje'ete'd1 wills vaeyAas';Wiirtfie
intensity of light emitted. Bright lights have been shown to startle fish in many studies. The
extendable poles will afl'ow IKe Iigfts to startle 'fish* fart'hlr^down in' the*water cdiUmrt than if
the system was mounted to the helm. The sound emitting part of the startle system w|ll;(be,;an
underwater speaker capable of sound ranges from 100-1200 hertz. The speaker will hang on a
tether into the water column. The tactile fish deterrent will be made of a fish net with light
chain "hanging to,the;har6or''bdtt6m:i"Thfe*net willbe1ar|e ehougngaugeiine that thefish will
see it but wili*havl l¥rge'Opefiings-s8lhifVre!notHugh€:TOi1^s^em'wii^rogrisl#fr&uih'lhe
deterrence area at.2-4 knots ,on a.calm day. Auring,the,fish startle activities the .bubble barrier
will hot be active to allow fish to pass through these areas unimpeded (see Figure 7 for
schematic-of fish startleibpatmQMntlset^-upH The:b'ub^letcurtair3 'A
The video survey will be repeated (second.-video survey), ,«lf;|islf; ar%found-again, ..time
perpjXting'a;second):afctgmpt ^jjdeor-syrrve^f will
be repeated again. If fish are>?stii^vf0uhd:^in^the!2Work' ar€a¦'•'d^aing^the¦•third:^yTde©'s(Mvey] the
•Commonwealth will re-inspect the integrity of theSli§R"J'#x6lus]i'n*,fnefRWdSlSgy::i Hf'-tiere is a
breach or other issue with implementation of the -fisK exfertj$$ni^et^
and monitoring will begin again. , (
P* '¦ -V 1-7l*' ' *'*. 'iC* *" i ' ' •/ ¦i\A -'.11 K :»:'•<* .*j ¦
If, after one month of deployment, the fish ex6laliii>h''ffietR4iS&fd^H##s''Wd'i:%p^'(^ftio be
meeting -"all'!of "the goals oHhevfishs exclusi'dh8 program'; t Hfe v'Co rt wealt'K ^ Wil IJ feieeit; wi t: the
' •V.'IS-ft.'E ¦Y.'j} jK5;|
Fish Monitoring Wpr|^rAupiJFMWj,.thfJJpm.!^pnwealthJs^o4!ton|»&Je|m,-',aCf4.o|her^?with
relevant expertise, to discuss issues a-r|he-;.p|gcedures
implemented will be reviewed with the FMW, and potential alternate methods for monitoring
and/or silt curtain maintenance, mitigation, or additional fish exclusliff,'#e%dis^wiil<1l%
discussed.
Once a breach,- issue, or problem, or once a potential alteration/mitigation measDre is
implemented, the mdnitoring' will begin again to determine ifs' effeetiveness.'' Shdyid fish be
found"in three consecutive video surveys after implementation of the*mitigation' measure; the
C6mifi6niWealth"\^iiWr^re-insp^'!tfifejW^fily flsft fexci&sM^fti^tltod^r^^W&'felS' a
breach or otherwise issue with implementation of the fish eXciu'sroR^millocfB^I^ W'Bl
repaired and monitoring will begin again. OtherwiseMeith.er a subsequent alteration/mitigation
measure will be implemented, or a meeting with the F;MW will be scheduled to discuss whether
or not modifications to the engineering controls could-be made.
VMiJ-W < . ¦
ti; «;:• •• H-v '>7
.. -i(K ,k', -• .-vi'-fa v.-.,'.: w. ¦ .-'if)*-'
6
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P:\J,
-------
A
APEX
> LU LiJ
>71-
NEW BEDFORD
MARINE COMMERCE
TERMINAL
FISH BARRIER
FIGURE 2
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¦ ^ ' .
'} .
FISH,WEIR,
STAKESV/!'!
iq'Seet:0n ''¦
C|NlER-:|Pfl?)
FISH WEIR
"NET
i t
NOTE; ALL DIMENSIONS
iRE iW&ROXIMATC
FIGURE 3;-
¦ *,..rf: \Jobs\GS90
£ff'AA
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
: Appendix K1
Final Biological Assessment for the Roseate Tern
New Bedford Harbor - South Terminal Project,
New Bedford, Massachusetts
July 2012
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FINAL BIOLOGICAL ASSESSMENT ,
for the ROSEATE TERN
NEW bepFQRB HARBOR SOUTH TERMINAL PROJECT
""' NEW BEDFORD^ MASSACHIJSETTS "
. U.S. Environmental Protection Agency
Office of Ecosystem'Protection (OEP05-2)) U.S. 1PA New England Region
5 Post Office Square, Suite 100
Boston, MA 02109-3912
'-July 2012
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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 • • M .
13. Foraging .14
V. Effects Analysis 17
A. Direct Loss of Salt Marsh, Intertidal and Subtidal habitat ' "11 •
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 ofEffects on the Roseate Tern, . • 22 .
VII Conclusion . ' _ ' ... 23 .
Viri. References. . , 24
IX. List of Contacts Made arid Preparers 28
2
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. •- New Bedford Harbor • South Terminal Project. .
• E?danSeredSPeciesActB^ ¦ ''
This Biological Assessment (BA) was prepared to comply with Section 7* of the. Endangered . -
Spepi(K/A(4{^'A)r 'l.t.^e§ses. the potential effects of the construction and long?term operation
of the proposed. New. Bedford Harbor (NBH) - South Terminal project in ^evy Betlfprd, MA, on
the roseate tern (Sterna dougallii), a federally listed as endangered- which may occur- in the area
of the proppsfd project;1 While N§w Bedford Harbor is not federally designated critical habitat
for.any federally endangered; spgeiesi the project area provides potential habitat for nesting and
foraging for the roseate tem. - : , ••• ¦*
Roseate terns were once abundanUn Massachusetts waters, reportedly numbering in the
hundreds of thousands, but a. variety: of threats has resulted in muchrredueed populations. * -
According tp the U.S- Fish and Wildlife Service Roseate Tgrn Recovery Plan,- Hortheastern
Population fUSFWSj, 1998), the numbers of roseate terns were severely reduceji in the J 870?s.
and 1880?s by. commercial hunting for the millinery trade and most colonies previously recorded
colonies; appear to have been eliminated P- that time. The total number of remaining roseate
tems was estimated to 6e roughly 2,000 pairs at the lowest point in about 1890 (Nisbet 1980 in
ySEWS, J95J8), .Following protection ffforts in the 1890's and strengthened by the Migratory
Bird Treaty Act of 1918, roseate tem population's increased to a high of about 8,500 pairs in the
1930s but declined again to a low of 2,50.0 pairs in 1977 due to habitat loss and gull
encroachment (USFSW^ 1998). ' ' ' ' " " , .
The islands in Buzzards Bay and Nantucket Spund have been among the most important nesting
sites for roseate terns in the northeast. In 2011, based upon total season estimates of rosefte tem
pairs,'approximately 90% of the population was concentrated at just 3 colonies r Great Gull
Islam^N|w-Vp]rK (MV) iUSOl) pgirs); BW Island, Marion, Mpsp^usitts (MA) (937); and Ram
Island,.Mattappisett, MA (385)i.. Other sites in Massachusetts included Penikese I., Gosnoid
(34), S. Mpnomoy I., Chatham.(7), Monomoy I., Chathpn (3), and Plymouth Beach, Plymouth
(>I ). Roseate terns were observed carrying fish into the Plymouth colony in 2007, 2008, and
2010 and presumably nested in those years; in 2011, a pest and young ^ere 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
brewing sites in the northeast and the roseate tern's reluctance to cplomize new sites are serious
obstacles to the recovery of the northeast population.
—: : :—- ; = _
' EPA; s draft biological assessment dated October 2010 also discussed the piping plover (Charadrius melodm),
listed as threatened; and the Northeastern beach tiger beetle (Ckindela dorsaiis iorsalis), 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 apd
Wildlife Service has orally confirmed this determination (EPA Memorandum to file July 10, 2012J
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11. Description of Project and Action Area
A. Project Description
The Commonwealth of Massachusetts proposes to construct an approximately 28-aere 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
- 29,2,012 (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 I 1 arbor 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
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W5£'5U" W W W{jyU4 WS4W W
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
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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,
Aero vox Corporation was located near the northern boundary of the site and the other facility,
Cornel 1-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 (USAGE 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 (exisiing elevation of
between -1 and -6 MLLW), deeper subtidal (existing elevatidn 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
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B. Fauna ^Einfish'and Shellfish
Jv[ew> Bedford Harbor is h
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Figure 2 - Salt Marsh, Intertidal and Subtidal Resources (MassDEP,2012)
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AnEssential 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 ActXMagnusonrStevens Act) for managed fish species listed in the project vicinity.
There are twenty,EFH species listed for thf NBH area; three species of which are considered .
potential forage fpr.-roseate terns. These include bluefish (Pqmgtomussaltgtrixjf, (listed for- the ,
presence of juvenilfs.. andiadults), king mackerel (iScomberomprus cayallg) (listed for all life 'r
• staggs; eggs, la?vae,'juvenjlp and adults) §nd Spanish mackerel (S: maculgtus)(lifted for all life
stages) (tyjADEP, 201 0a). Roseate terns generally feed on the young of these larger fish speiries.
( A fisheries study was, conducted by ^ormaiideau Associates Inc. (NAI) in New Bedford Harbor
_ from June-1.9-S.8- to May 1999 ^hich consisted of three near shore seine sampling stations (two in
the outer harbor and one in theirmer h^bor) 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 f§et). As noted abccve
in Section II. Project Description, the demarcation between the inner harbor and the outer harbor
is the New Bedford Hurricane Banier. (MassDEP,20.12); No inner harbor sampling sites were
located in the NBH-South Terminal project area; however, the fisheries data would be
clmracteristic o-f 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 AtlMtic silversides {Menidig menidig) (44 %), striped killifish (Funduius majglis)
(•16%),. mufrunichog -(Fundulus heterocUtus) (9%), Gunner {fautogoiabrus gdspe^sus) (f%)i and
winter flounder (;P$uedopkuromctes gmericgnus) (6%). The mpst numerous fish found in trawl
catches (standardized for- length of tow and catch for comparison purposes) werf scup
(Stenototnus chyspps} (23%), gunner (21%), winter flounder (13%), blacksea'bass
(Centropristus striate) (9%), and northern pipf fish (Syngngthus fuseW5) (6%).; Alewife^/pA'a
pseudahgrengtts) 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, bljLieback 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
• speci«'V(MADER/|pL()a).
The bluefish is. a wide ranging pelagic spepies (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 vyhatever taxa are locally abundant. The bjuefish diet
includes fish, crustaceap^d.polychaetes;(Friedland etal. 1988 rnNQAA. 2006). Mackerel is
another pelagic schooling fish; they spawn in a wide ranging area off the Atlantic coast. They
have a diet of copfpod larvae and eggs, the smaller- adult copepods, various other minute
Crustacea, and small fish larvae. Various other planktonic animals also enter regularly intp the
diet of the iftackereL Juveniles often enter estuaries and harbors in search of food (Bigelow et
ak,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
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birds. Bay anchovy feed primarily on maerozooplankton, 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 cstuarinc waters where salinities are usually oyer
10 parts per thousand (ppt) (Dovel 1.981 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. 2010a). 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 amcricanus) 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 arid 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 199i 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
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are not solely CQ'rifPfd to Mew Bedford Harbor. Indeed as also discussed above, sand lance were
not fbimd in Iwge numbers in New Bedford Harbor. ,
=fhpie#£ftnd|Iipnsir;§fn?-(Statipii;i5^j is Ipcated within the proposed dredging area for the NBH ..
South Terminal project, The; lphgrterm sediment monitoring data for Station 253, conducted five
times between" 1993 and 2QQ9, 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 Cpres within the footprint for both the proposed
dredging area and the proposed'"facility. (MA DEP, 2012, Section. §), Surface samples from
withfo thp ^|bs#^dg|n|-'fr^'and the filled facility footprint were collected and analyzed for
PCBs,(22 ikpAA Congeners by Modified EPA Method 8270C). Surface samples"(samples •
collected from 0 tp 1 foot) and fifteen Russian Peat Core? locations' (five locations within the area.
tp.be filled .and ten locations frorn v^tliin the dredge footprint) were also analyzed for 13 Priority
Pollutant Metals (EPA Method 6020A/7471), SYOCs (EPA Method 8270C), and Total .
PftrplfTOTiydfp^bpjis^fi'PA Method 8d.J 5).
Patterns, of Circulation Although general data regarding circulation conditipns and sediment
transport within the harbor have been collected, no data exist describing the actual sitejspegific
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
semidiurnal tidal currents (EBASCQ, 1991; Howes and Goerhinger, 19.96; 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, 20.i0a). Local embayment and
channel restrictions produce faster currents. Examples of these locations include- within the
opening in the hurricane barriei?, within the vicinity of Popes Island, and within the vicinity of the
Coggeshall Street Bridge Ipcated 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 fbb tide (USAGE (1990) inMADEP, 2010a), In the New Bedford Harbor PCfi' "
Flux Study conducted by Woods Hole Group (WHO) on behalf of the US ACE for EPA, NBH
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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 (MADE?, 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 (MADE?, 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 '
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departed thestagiri|»areas for the wintering grounds (principally in South -America), but some
linger at staging areas until mid^Petdber (USACE, 2006). •
The islands in.Buzzards Bay and Nantueket Sound have been among the most important nesting
sites for .roseate..ten#, in the northeast. In the most recent inventory of temsprepared by
Massaehusgtts piyisipn of Fisheries and Wildlife (MA E>F. ;• ...
'Roseate^terns were cpnfirmgd to havenestedat six sites in 201.1. The largest colony was
' at Bird L, 'Marion-(9^7 W ?35f in 2010)- productivity was very good, 1 .23. fledglings/nest,
' Ram I.j.Mattapoisett was the second largest site at 385 pairs (vs: 584 in S0i0)V ^
.! ^irp'duct|^jt-y"alsf'.Wfs yg1 vs. 2 in 2010). Roseate terns \vpre observed carrying fish
into^ tfte :Plymouth colony in:2007,2008, and 2(J10 and presumably nested in those y&ars;
¦ ":i' however, in, 2011, a nest and young were confirmed. Roseate terns preparing to nest at \
'• ftlortpn 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, Yarmputh, three roseate
. terns (two §dults and one sub^adult) consistently were observed flying over the colony
' • together pvef the course of the breeding season, but they did not land and there was tfiere
was no indication of nesting; At a sandbar-off MuskegetIvN§^|iie|pt-in'-4jilyv| roseate
«"•'» tera pftir was courting, scraping; and bringing nesting irtaterial to a' straps, ;but nesting
'^asnotconfirmed: (MDF&W,-2012)' / ¦ '¦<
Bird Island |^d Ram Island (located approximately 17 km and 9.2 kin "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 rpseate tern.
Bird Island is a 3?.acre island located in Buzzards Bay jn Marion, MA, southwest of Butler's
Point at the entrance, of Outer Sippipan Harbor. Bird Island is subject to wave action and
submergence during storm 2012). """""•
13
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In Massachusetts in 2011, the roseate tern population decreased-slightly (2.4%) to 1,35-9 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 God 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 stealing 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
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and, in one transect, a small number of tems (1 to 9 birds) were observed foraging on the west
side of Scpntieut Neck (outer New Bedford Harbor) (for the location of these areas see Figure 3
$s Roseate %fO^Pi;a|in|;:lJ4^itat:.Withiii to); No roseate-terns were-identified.foraging in the
innerharbor ar^a.-. :'• /:¦ '' . " .. V:'¦'¦¦¦: ,.t; \
The MpsDER (conducted an expanded ayian asseissment for potential usage in the vicinity of the
NBHSs"SouthTerminalproject'for avian nesting and foraging,by reyiewing existing.data.J .rtte
assessment included a review pf a bird survey conducted by the LiSEPA. in 1987; bird , -"
obsen'atioiis witiiP'Bristol County made via the Massachusetts Audubon Society's online'
"eBirtf' systein, the species prioritization list associated with Bird Conservation Rfgion 30
.(Sputh'^i'M?w P^IS^-flrfoWiatipn.from the Paskamansett Bird Club?s 2007 Christmas
B|rd Count, identificatioiis made by an individual within New. Bedford from1 2005t2008, and
observations made,for the Mass Audubon Society's Breeding Bird Atlas 2, The conclusion of
this assessment was that "Thesg. surveys indicate that the Common and Roseate Tems likely do
not travel inside of the New Bedford Hurricane Barrier, and , if they do, they do so infrequently
and-have not b^en noted within the sui^eys in fluestion," (MassDEP,.2Q10b). -
Of the roseate tem nesting colonies in Massachusetts, only Bird Island and Ram Island are within
the foraging range for roseate terns (approximately 25 km) to the New Bedford Harbor.. Bird;
I^Lan4- jsip|fia^:^prp5dthat|ly 17 kn from New Bedford Harbor- but tems v/ould most likely
follow a water route during foraging which extends the flying distance from Bird Island to N.ew,
Bedford Harbor |o the outer-inpst foraging range. Heinemann (1992) stated that ."Roseate Tems
from the Bird Island do npt forage in tiie immediate vicinity of New Bedford Harbor, although
they can be found in significant numbers near Wgst Island and Ram Island 6?9 km away." "
Therefore, it is unlikely that Bird Island roseate tems forage in the New Bedford Harbor- area,
during nesting, season. However, Ram Isjand is located 9>.2 km from New Bedford Harbor, The
Heinemann (1992) tem foraging study was'conducted prior to the restoration of Ram Is|and and
as guph, may not account for Ram Island roseate terns foraging in the New Bedford Harbpr area
during nesting season since the mid-1990's.
Little information is known about the movements or ecology pf 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
tems is discussed in the Section V., Effects Analysis.
15
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16
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V. Effefcti Analysisv ¦_ ¦¦ •• *'¦.' ¦; '
• J|^ssIjit^rtidgliaiui$ubfWsflRabilat •" '
Pertttanent direct adverse impictsHo acjuatic resources from constructing the NBH?South •
Temunaiproject would include the filling of 1.94 acres'of intertidal pga.; $,0$ acres of shallow,
ne^shpre subrtidal area- 0.18 apres 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 Q.67 acre area will
also be stated with ^ concrete platform, These aquatic resource areas were found to support
abundant benthic and shellfisli; resources ••and are used as fisheries spawning and-nursep habitats,
Permanent impacts from dredging associated with the proposed project incjudfs 7.02 acres pf
nep^shope, sub^tidal tod which will be dredged in feet from between and -6 Mean bower
Low Water (MLLW) to between t30 and t32 MLLW?i and 8.46 acres of neatvshore, subrtidal •
land that will be dredged in feet from A and t6 MLLW to -14 MLLW,
Temporary impacts associated with the proposed project include 8:76 acres of near-shore sub*
tijdalmea that will be dredlged from-between -1 and-?6 MLLW to:r45 MLLW to'preate ad- ¦
¦ .'Gonfine^ Aquatic'^isppsal'eel'l which will later be filled and capped; '6.47;acres of new-shore,
subTtidal |f^.4l^t-'WUi:^di^|?d=^oin .>4 toV6 MLLW to between ^6 and =7 iylLLW ^ciifford
Strpet Channel Re^ignment ^d Mooring Mitigation Areas); 829 acres of subrtidal area will be
dredged from ?20:tp r20 MLLW to -30 MLLW (South Terminal Ghamel)\ and-15 acres of sub-;
tidal area that will be dredged from ^20 to -30. MLLW for t3Q MLLW (Maintenance Dredging
of Federal Navigation Project).
.4lptafof approximately: '22.13 ..acresof intertidal and subtidaJ resource ^ea§ would'be;,, ...•
altered due to filing and dredlging during the construction process. The direct
effect to mirine resources caused by filling and dredging intertidal and subtidal areas include
pemianent loss of spawning'and foraging habitat, reduction in the availability of foffd supply,
and lossfffrefugeafeasfictinpredators.
A Jptaj of 38.22 acres of near shpre 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.) appelated with the ppst?construction operation of the terminal (MassP'EP
2012). Temporary impacts frpm construction noise will potentially occur as theprpject involves
the insertion. of piles jritp substrate to provide a foundation for the terminal bulkhead and may
involve blasting toremove rock in the area of the terminal and in shipping channels.
? 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 deeprdraft channel/ See -MassDEP 2012a at Rp.-2?4 and - ¦ "
•.' 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, \ _ • , .
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B. Foraging by Nesting and/or Migrating Roseate Terns
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 tems 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,itwould 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
tems 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
¦ is - *• -*• ..?¦.-
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slow-moving .benthic organisms^ including slow, moving invertebrates (food for prgy species) ¦
may be bwied'.or".trappfdvby- filling -during. construction of the NBH-South Tenninal/.More -
mobile species of fish would likely avoid the disturbance areas. Spawning habitat for the pelagic
species pph as mackerel and bluefish, which spawn in at sea, or for the anadrompus herring
which spawns in fresh water (in the Acushnet River), would be least likely to be directly affected
by Jhe filling of intertidal and subtidal habitat. Species such as the-sand lance, bay anchpyy
which spawns in
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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 Superfund site, the EPA
Atlantic Ecology Division in Narragansett, RJ, 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
bioaceumulation levels were relatively constant, which leads to the conclusion that operational
dredging in the NBH had minimal impact on PCB bioaceumulation 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 dozen's 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 '
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foraging would also be at its peak during this time (MassDEP, 201 Ob), the elevated activity ~
within the harbor area is likely to deter shorebirds from foraging there.
The construction and pperatipn pfthe WgHTSouth Terminal will involve increa^d tmck traffip v
and noise impacts in the project vicinity. ,It'is estimated that operations will bgcondueted 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 NBH1 South Terminal is located within fee-J^esignat.ed'
Pprt Area for the Port of'T^ew .Bedford;which has been;specifically, reserved water'dgpendent
industrialises. by the ©dmin'onweaith-)Df Massachusetts'and is within 'the 'Waterfront Industrial '
gnd ''Industrial'.'S5' zoning- districts {MassEJEP, 2010a). -As diseussed;abpve,1||e'currentT,eYel-gf
human activity in the harbor is likbly to a deterrent to shorebirds foraging in the area.'
incifasfed'iioisf^iiijl traffic from construction and operational activities at the terminal may
further- det#ipseat£#^ area: However; this is not likely'to adversely affect the
roseate tern since even apart.frpm the NBH South Terminal Project, the use of the N§w Bedford
innerharbpr by roseate terns is ^kpected to be-limited'to occasional and transient individuals and .
there are several ahcl more preferred ^eas terns may use for foraging in Buzzards Bay.
Ft Oil;Spills Shipping Traffic
Increasied vessel traffic and/or the potential for uncontrolled releases of oil to surrounding waters
as a result of the operation and maintenance of the - South Termina} project present "
additional potential vulnerabilities to ferns fpraging in Buzzard's Bay. An oil spill in 2Q03, the
Bouchartl No, 120 (B-12Q) oil spill in Buzzards Bay, Massachusetts, resulted in moderate oiling
of Ram Island and slight oiling of Bird arid Penikese Islands. During this event, roseate terns
.•we*6" hape^l 'to discourage therji "from" settling into nesting habitat until it was cleaned of oil. As a
result, many tern pairs moyed to other" islands, and/or delayed nesting,'which" resulted in reduced
productivity atIsland by ari-esfimated 350 chicks. (USFW.S, 2008). . : ¦ "
To dftermine the threat to avitui wildlife, the Massachusetts DEP relied upon an oil spill threat
analysis of vesse| traffic prepared by Nuka Research ^ Planning Group LLC (MA.PEP, 200?
cited in lylAlDEP, 2012.) Nuka Research & Planning Group LLC considered the existing oil spill
threat for New Bedford Harbor from vessel activity within shipping lanes; from increased ygssgj
traffic idue to the construction of the NBft-South Terminal project; and.from use pf 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 pf operation pf the
new terminal for Rejgipnal Transit Vessels is 0.77% for the South Coastal/New Bedford area,
0,75% for the Dartimouth/'Fairhaven/Marion/ Mattappisett/Wareham/Westpprt area, and 0.75%
for the Cape and the Islands. Devils pf this analy sis may be found in the document entitled the
State Enhanced Remedy in New Bedford. South Terminal and dated August 25, 2010
(MASSDEP 2Q12). 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
NBffcSeuth Terminal project.
21
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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, MX 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 riot 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 tems for foraging. A«» 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
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¦y|i.Conclusion'.;-/;.
EPA concludes that, though the proposed NBH-Sottth Terminal project may affect the roseate
,tfpi» tfee. project i§ unlikely to. adversely affect the species. :
23
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VIII. References/Literature Cited
Auster, P. J., and L. L, Stewart. 1986. Species profiles: life histories and environmental
requirements of coastal fishes and invertebrates (North Atlantic) 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)
Ale wife http://www.gma.ore/foem/Pomoiobus pseudoharengus.htm
Blue Back Herring http://www.gma.ors/fogm/Pomolobus aestivalis.htm
Mackerel http://www.gma.org/foem/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
-NewBedford Harborhttp://www.epa.gov/ne/nbh/history.html •• •
Environmental Protection Agency (EPA). 201 Ob. Update on Shell Fish Testing in Bedford
Harbor, http://www.epa.gov/regioh01/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, RL
Environmental Protection Agency (EPA). 2009. Contaminated Monitoring Report for Seafood
Harvested in 2007 from the New Bedford Harbor Superfiind Site by Massachusetts Department
of Environmental Protection and Massachusetts Division of Marine Fisheries September 2009
http://www.epa.gov/ne/nbh/pdfs/299739.pdf ¦* ..
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Environmental Protection Agency (EPA). 2008.. Polychlorinated Biphenyls (PCBs) and
Ethers-(PBDES) in Current and Historical 'Samples of Avian Eggs
From Nesting'Sites in.buzzards Bay, MA., USA, Prepared by Sarp Jayaraman' • 1
0ayarman:sarp@epa.gov)? M. CantwellvC. S. Mostello2, LCI.T. Nisbet, and Di.E.Nacci1:
(lyU.S-PPA, Office of Research and Dpvelopmem, Narragansett, RI; (2) Massachusetts JJivisfon
of Fisheries <&Wildlife Westborough, MA; (3) I-.C:T. Nisbet and Company, North Falmouth,
•MAT'-"'' "r^ .. ; '
Friedla|id> K.D., G.C. Gannan,;A.i'_, Bejda, AX. Studholpie, and E|; Gila, J988. Interamual •.
•variation in diet and condition in juvenile bluefish during estualrine residency J TraSs. Am. Fish.
"" "' J ¦
Gpchfeld,Miphael,Joanna'purger and Ian G. Nisbet. 1998. Rospate Tern (Sterna dougallii), The
Birds .of America Online (A, Ppole, Ed.). Ithaca: Cornell Lab.of.Ornithology - Retrieved
from the §Ms hp?getsite-78
Massachusetts Department of Environmental Protection (MassDEPf), -2010a; State Enhanced ;
fcemedy in New Bedford,1 Spifth Terminal..' August 25, 2010, -223- pp,'" ••• •-
Massachusetts Department of Environmental Protection (MassDEP). 2010b. State Enhanced
Remedy in New Bedfprd, 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; pf EnvironpientaJ Protection (MassDEP), 20}. 2 b. State Enhanced
Remedy in New.Bedford,.South Terminal 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 pf 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- ¦"
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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 IIshe's
and invertebrates,(Mid-Atlantic) —bay anchovy. U.S. Fish Wildl. Serv. Biol. Rep. 82(11.97). 13
pp- • '. < . ¦¦ . - V.
National Oceanic and Atmospheric Administration (NOAA) 2006. Technical Memorandum
NMFS-NH-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. June2006 ; . •
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, 1. 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^O 12a,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:
htto://www.ace-eco.org/vol2/i ssl /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, Ct 1990, Foraging habitat partitioning in roseate and common terns. Auk•107:351-358.
Safina,.C,, J. Burger, M. Gocfifeld and R. H. Wagner. 1988. Evidence for prey limitation of"
common apd rpseate-temTeproduction- Cpndor:90:852t859. ¦ :
Spendelow, I.A;-, J;_E. Hiries, J:D. Nichols, I.C.T. Nisbet, (}.• Cormons, H. Hays, J. Hatch and C.
Mpstejlo, 2008. Temporal variation in adult suryival rates pf roseate.'terns during periods ; /
-------
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/sl 0646-010-0536-6 . , ' , ,
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-OOG1-0005-02, 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; Nairagansett, 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 Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix K2
Final Biological Assessment for the Atlantic Sturgeon
New Bedford Harbor - South Terminal Project,
New Bedford, Massachusetts
October 2012
-------
®'^®r_% ., . ,; , .-^§IU$'i' ¦ ' * 1 "
J* ;
^wss-'- ¦ ¦:.¦¦ ¦
¦$€*0 !•>' ' * I '
:€K|is|ine VacUp';. -. ¦;.• -y, . . .-¦
,7-Cogg^^;,-u}<¦.i~:»;:J ,,:.
p»ffl|as|iteg|«glS|fi||K};, V4;^ 'f> >: •¦•;:.•
:61o^|teiffilll30,227fr
¦^swSjfef'
•i.
s*P '.i^'J-fk' f *. ••^¦'iy J • "
r ¦¦ n.
pfej||^rdiHarbor,as part of the State Enhanced Remedy.
fiom:tib,e Protected Resources Division, wc understand .i.
Thus. EPA's issuance of the
federal action that-niay.affect a listed:species under the Endangered Species Act. The
S .. •
-windi4iS®P-': ISt^n .
ihf AquaticE)ispDS^:(GAE>Xcelj forstheisolation/disposal of
contaminatedsediments:(Figure 1).-
It
as;
'New Bedford Hajbor^te
-------
1
iMageon-popM:^!^ ¦'
•¦woiid'&mbstUiiter^ .! '
In^a1£rAictfaM&?^^ * * * ' , -
J. t ... .#• \ ,!. \'*, ' ^ . •„ > - v, „ , . '
- di^jtubict^in- -wapf im|^^imiic;stur^on.
•These activities areblasting; dredging and pile driving.
Blasting
ERA- will not approve
Dredging is proposed ito begin in January and continue for approximately 7 months.
} .
'Tpf mitigate *pipti&t^ geo
:i«qtiire-1te:MlloMn|;mea:surefe ¦' / <¦•/ *"•*• .¦
1.- tpkeTOefpfteeriv for dredging of fine grained-materials;:
%i monitoring witlvaction levels^wfficjK maf
f engineering controls: 1
3i 'tfreiUsejoii&senfes^ basis 6j|^35'^)«elusi6ni
The Commonwealth wi 11 erect si It barriers
tiat will be anchored to:th bottom and build a bubble curtain-toencircle the.
project arek In lddition, weir nets will ^*;|^18y^"§.i|^p^f^ese barriers
to provide a secofi|l obstacle to benthic fish movernentfp®^e*fish exclusions
¦devices.will be deployed pnorsto construction begins in.Janu^irid,|¥ill »«
: remain in place until June' 15th to protect winter flounder spawning.; and
, %' for the projiect area duriWgiiiie
, period oF:t|mew|eti the fisfrexdusipn devices are in place. On a weeMp
•tia^/fc^iiiffi6iri«'«jaUh will monitor-for the presence of fish in the;pi-pject
area. Ifiisl are present^multiplc fish startle systeniis;
attemptto^etthe fishtomovebut of the project area.
-------
Pile Driving
Tfte constructi6riio£this>faqlity^
followed by.theinstiillationof ;K|,%sha|ed steel iles;atd Toj
teng,and348r"thfcii •(Sk|y'^five ¦
of the piTCjUe's^B4B;diai&€i^a^M¥e^§/8r
sixteen !,of tKe;pij^plfesMe/3wPM • -...,• -
(Construction of thi^ ^ pccurduringthe time of yearwhen fttl^tic sturgeon
associatedwith piledriyingiEPAvviilrequirethefollowLngmeasures:
;-. 1. To eliminate"
' meiji^ Th'i§^^^e:Wypiy^s dnllifg a;
placet, ^k.tec^igue is consistent with tJie "drill and pin toledge'^criteria
that NMFS. h^ preyipusly suggested. • ¦ .
•2. Limiting^ the use of
On October 22, 2012, the fiomrnonwealth submitted to EPA its Biological Assessment
forthe ^tlapt?? Sturgeon, whicbis included as an atteclmenttq this letter. EffAhasiiot
had s^icient time ol oppprtunity' to r^yiew die-detals of the acoustic model used to
¦prepse.M.^|prtfe handful opairowlydefimrd _
Kabitat areas within New. Bedford HQ\yeyer,,:some useful;eoneiu§tpiis cm still be,
(^oidMce^lfe^.s.'-: • I •
if. lotentiai acpusiic impa^tii^em to raF^^ynpiinding th§^ _
¦ prpj^tsitethatxe^ th^apprqximately 1 /3 of the cross-sectional
'3t. inJanuaryS4-
percentagepfthezppepfp^ .a^i^^9.''iix^>p9C off
witliFishexclusiondevices (silt curtains, bubble; cm
deigned to keep bpthic flsli outof toe project zone. Duri'lig ffiaf |)|riQa of
tiffl^ stogeon'wllbe^pjiy»ed%'^ alargeipait.ofih^ area,that
4. Bubble cju^i|^'c^|^^pjbye4'' as an effective means"
ppten&#ar§a of impact;
Of miriipjzin| thfe
-------
5 ,
Conclusion
EPA has based- its fihal'cbnclusioh ori discussiGns with NMES and infbrmation provided'
by flie (bommon^ealtli; EPA,concludes thait; although thepropo^edilSffi
employed,
q^tions
;Bincferply>
i.
""J
jEoastal'and ©ceM^KotectiofiiSection,
-oc| GarYt.Dayis^ Mass EOEA
Paul Diodati," MasiiDMF-
KathryiiFord, MassiDME
-------
Biological Assessment
for the Atlantic Sturgeon,
. '•* I Y*',
oxyrinchus
JSIewf Bg^fgfdy Massa
-------
Contents
2; Description o
,212 *ActibnfArc&r.A
# Envlronmtental
M SubtidalBibl,
mj ,;^nthic#
-.p?2-: She
Sti./3 Finfish
¦ M
4 Bipiijpfi
E4; Eife Histowi.n
^ A »i «;3;
5'..'...."i:.'..V...;,'.ri.;'^:..........v.I ........... 4.
ICS :
on (Acipensepw^^kt^S^i0§^:^^A i sv; ¦„%;; ; i-i7
~.„*.v;~,.i.........i 7
¦4v2i! '
%2;2, ^fater
•¦*"Vi* • iVf'iK- ''feit vi *v$-
%?.3.
AhalysisofPotentiallEffectsoftheProposedAction. 1
§;! Men®catioffo|Su^ 10
it
$2.]' .C|hxicg;lmpac|s|.,
sem
' -5
'M EcologicaLBenefitsofthePr<
6 _ DeterminatibnofEffectson
'0 Soniiusic)ns,.:.„f;r;
I
9
.... * * * >.'.. <<<•••••>• • ««*.*• • •»*r • * ••.~•/ 19
,.... . y,;y.».«wi. ii .i. »i..,,»...
• £ 2 ?¦ : -~ '* *' * *¦- ** ' ' ,,k
-------
/•"HOT
infl _.
New3eSffiiS;Har)»f,
-$*Ml&%&Jisg;-. •*¦•.'•''
Table 1. :;Spegijes..-fej;^tii||i^e^B^fqrcl.Harbor is deslgnaie^:Bj||ifia
,i?a6|e |l}Bmi|s.||. ^esjwces;i§apftired 'to'lb.wer. New
'SSrmana^.u -Associates
lk'irp|iaj|» |sg^grof|§ pi|-;iil}s
fturgeQn ||em-u^gl^xglgsivp.- '
L|it^fFpuf||
l.
|i|tf^:||, S;git||lf|habitat areas
Harbor using USACE bathyrneti^;datai
fi|uff>3,v -Af6ustif,;mode]ing results;;fgfpite;(iriving'',actiyitieslin'New
Figure 4; Acoustic moaeling'results fer non-explbsive rock removal activities
~ i£ib&K ' ^ ""' : ' " I ";w- '7
tigurf 5. Acoustic modeling remits; x?|'ffie;-use jS>i;exglos1ves:;o^vap^i5.s.^a^ft slzjg| Ig^fgck.
'^rgmofaj^j ! ¦ "
. V ipitigatiOii; ^ "
' I '
i
-------
1 Introduction
Biological Assessment: Atlantic Sturgeon
Sktidrt-^'feilte'Ehto^red; 'Ipcies-1531 et sgqi): mandates that all federal agencies
^nsidwAtHe actions on species listed as threatened or endangered. If the federal
an action may adversely affect a federally listed species, consultation with Natiopal
Marine Fisheries Service (NMFS) is required to ensure that the action will not jeopardize the species'
continued existence or result in the destruction or adverse modification of critical habitat. If it is determined
Jc Kl-ok/ vnciilt in tK/» r\f a cnpri^c thpn MMFS mav %sj^i^.Jgiiu||y 18,2012, and the Response/to USEPA Comments on
the January 18, 2012 Submission bv the Commonwealth of Massachusetts for the New Bedford Marine
Commerce Terminal (MassDEP.2fi 12B0. 1;8;,j2|).J2j •
I • . ¦ .
In.surnmaryj the;^j^i^lud#|ftiiPyw^ (f:Sg
*i • Dredging to create channel, from Ithe;. existing^ federal )rayig§^^^^ facili'iyi "to
awommb'&teWeS^jtra^ .
•; ^d the Clifford Street boat channel;
• (CAD) cell for disposal of contaminated sedinfehts
below the ocean floor;
Construction of a confmed disposai facility ; (CDF) ;for disp6sal of s:edirnents above' the ocean floor to
l
-------
Land Use
New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
• Construction of approximately 1,000 linear feet of bulkhead, and utilization of 200-feet of existing
South Terminal bulkhead (for a total facility bulkhead length of 1,200 feet), to contain the CDF and
new terminal.
The project is proposed under the State Enhanced Remedy provision of the US Environmental Protection
Agency (EPA) Superfund program (CERCLA). CERCLA regulations allow for a state to petition the EPA
to expand its remedial action to include additional activities as an enhancement of the remedy; for this
project this includes navigational dredging and disposal of contaminated sediments in CAD cells and
construction of a CDF.
Figure 1. NBH South Terminal site location map (MassDEP, 2012a).
Dredging and construction of the South Terminal project will permanently impact 22.39 acres of intertidal,
near-shore subtidal, and salt marsh resource areas. Project construction will temporarily impact 36.48 acres
of near-shore subtidal resources. Please refer to Section 3 below for a discussion of resources to be
impacted by the South Terminal project.
2.2 Action Area
New Bedford Harbor is located on the northern shore of Buzzards Bay, and is bounded on the east by
Fairhaven and the west by New Bedford. The Acushet River flows into the bay from the north, and is the
most significant freshwater input for the harbor (Figure 1).
2
-------
landlfle
Biological;Assessment: Atiantic'Sh^eol
New Bedford three regions: (1 ^0|p^egy3i|ojftti; of.^.p^shell Street Bridge, (2) Lower
(of Inner), between (SogsHelt Street Bridge and New Bedford Hurricane Barrier, and (3) Outer, .south of
ii^dfofd.HunFlc^f The South Terminal-and CDF, CAD cell»lnd dredging are^8irei3ivitiiiii
|[®i^).®W5»6i^',Mitcb''is bounded'on' the' north by the Acushef' River and the souffifby the
;humcamV%aiTibr;.. *' • "J ; .JV '• Y v ,
<3ui¥ently, the inner harbor Hs characterizedfb^ -ifiiii
processing and.
:miinteA"an«:;and ¦:
a;mudure''dl:u^ustrial; •
~ ' ' I • Y • Y..- C -• • K YV, i '''•. Y." ¦ . '
:;MISton6#,^.#iew Bedford Harbor'was characterized by industrial and "commercial use's, including textile
niillS alid electronics industries that resulted in the contamination of harbor sediments with polychlorinated
;biphenyls,'(R|3Bs) and; heavy i metals. .Contamination extendsirom tfie .upper Acushct River to Buzzards Bay
to va^m|fdel|fees. Bioaccumulation ,of PCBs within-the aquatic food-web has resulted in closure of the
;Karbor|to ifisfiilig; and she J lflshing. PCB contamination has also led "tOT-restfiStioWiii rSgteatiOriai activities
and development within the'harbor. In 1983, EPA added New Bedford"Harbor to the National Priorities
List as a designated Superfund "Site, (USEPA, 2012). Remediation of New Bedford Harborby the EPA
through dredging to remove' and .containment to-sequester contaminated sediments began in 2004, and to
-------
i"
^Newjife'dfortHartjor M^ne^mmcw'femiiiial
*| :BidWgicaiA^e'&inffit:^tjli|tic:Stogwh
>up3 |nc.,
In 2005;, r4^7i#gariisms:from 85 spccifes were'^mpref ;(Batelle,:2005): ^OOBifsampLing-'was ddminated:by
Mulimarlaie^ialiSi itije. dwarf surf clam, fdllSwid % & oligoefiacrte woM, . ffle 'pdiiiplete
sp^i^!Ji'^V{^it}ie^|!0O.§i Wgajl •&.$§—* ''" A J!" " ^
'' , . ./ . -'r *
3.1.2 Shellfish Resou rces
•r,•' j*, •;• -I.'- *'s,*
Shellfish re$ources?mI%wBe&fc^ $lam,Mercen.fP!,i ;|0||a)lj'!|Me| 's|§|Ie| found ,wjt||p easteffli oyster
(Argop>§cte00a0ghsfl arem^ia% Slue musasl
.**' ""T'''': :
"The!-|?roj|'c| is shellfish
species. •»^mitigatibn^p^^i5slh^:^Sv6foi»a^tHnclliiSi$^ldingno^6pp^*^^a~Rlv^^a•^•••m!lIf^•-rillah•fta:•
• anairoptera. gy|r:|; rOslftlMrpficid USMF-S
J3.1.3* vFfelfefcHe^rc^
?,feflmmonwealth response datefl
Fish .*!s^*^&«^nates^h for- twenty. ||0)roj'mmiufc£'x" 10: |mrij^.!'^u«e^.jfof;
Table, 1. STOd^;fmwBichlNw3Biafo'rd;HarBoris-awignat^''liseBtmllFish'tHabiitfttb^NMFS.
M § ¦! I ¦
i'
r ,,::w
MgSaults'^.'
5% » -
gigy
?xr«.
"
r -•*! ¦ -">.f -./•¦>-<
#X»i
X",T'' ''''
Red hake (Uropnysis chuss)
- ¦¦ -»¦- ¦¦ T<~'
"X v<~* *"*°'"
tx?" *'
';x'v> •'' •
;x ' """" -1'
Winter f\oiiMeT{P}eiM6p!eurwecBs!americamis)[
'tX'" *"
, ,-t'^ «¦
¦vx"iW •"'"""
X
"X;'-
;xr."*
- '/V,
X • •'*' ,v
¦*x:; " . " '
> i .».#> .'V r
- - . j *< _ .»>r »i
rxi-™
r^. v V'
x- " '¦¦;
"' •" L,;'?"' "'"V- : '• •.
'f4V*5r.i"»» -•*•¦¦"
^ •,« '
rxr-
¦;x;" " • '
- • . lij'.-'i" -•.
I^ngfinned squid^(£omoxpealemr.
**n/a '
J1- -. • • •
n/a-- -
-Xf"^
—jy-r* "
X" • '
" "' ' "fi,; !"
KtimiiciMii^sW&epriluMrmcmt&);
^X»v'
C^»v', ~.r - -i %¦*. * f. i
:xr^
X"' •
•Atlantic^madcerel (Gadmmomm) .
'*^ ^>-r---
*"
X '"" '"
' ' ' * ' '•
¦" .V't '•*¦
;x
• •••.¦¦
rXf^"^
W:''wrw
•x-:
' .' '
'Blackseab&s'(
"X.
* '••. •<•-, .-
'*"''
.X""'"
!" ^pawning aditlt - l^sigria^KJjwitfim^t
•vbesi^^ only"
"•''1 ^CfeShf yMdiMV'only l
itlaiiuc;
-------
Sioiagi^^Se^B^^iTOmtKi^t^l^'
Ij|infi^^^gii^r)!i^|d^.d)i^c|effi^fB^'N|!^|i"d^'»4l^i^i^5&siftf survey, data collected Monthly,
QY^i' ^~~* yiWjmylani v "¦* 1'ClQQV" ^f>t MO /0I "I rn PI it 11'i QnH -1l'!il W!T ("^_ 1 fi m ll\
FLt>wefe- Harfeisrj "one? seme;
> captjtetf |Mwi|h survey J
^ai^j2.:lfia^k:resOTl^:c«i&»i^'iB.i^ei;^ew:ferfiEiHrS,ihil»r".tfy-Nona»ff^ii,A|aiicfti^i[l-8y>^-
Species
Seine (S) or
Trawl (T)
5Cfe!wife,(%io$a;psuectdharens&4sh »' •..... -'..'I 1-.-
M..:- a ..:
,Amfencimi:eel;if^Kj^i7to;ros/Ma)v. i, t.... ;» „ „
,T: .
Maritic'HsjTihgs(©wBea:/iore«^i): .. .._.,. j. „/.<
JT. ,., ....
,. Ail&tic mental ' :'.. ,,.
.SjiT; "., ¦
,5^..:..,. ¦:
¦Mi\mti^^mc€A(McKOgadmJbmcod)
:.SL_„'
^EmW^>-mideWiiW(&nola]zomta)",'1" * !: . 1'
t ¦; •.
•'Bkyiwc\iovy;MmHea'mlchilli)>¦ '•!*• '•. !»•".• -«/.i
IF. ¦ \ .•
..BlackiseaibassiCGe^offrti/MS.-s^iatsI ": 1
•S"
Bliiefish^pbnuitomussaliatrixt . . .
S'.
CreyaUejack.(£ara>»: Hipposf
W- ¦
GmMt(Taufo&ldbrMrCuispersus) ,
«•
FourspineiSticilebackfSlpc/ieJWKaiA-acMi) '
¦Si ' *
lEiiridulussp;;
s .
' GraBttyif]ffic& . S
Northern'kingfish (MeriiicfrrhwisaxtfUisIf.
,su-.. ,
.Northern pipefish^n^mi^usifuscusp ... ;
s; .
Northern pufferlSpAoero/dei maculcttest . . .
s
;.G^steritoaidfishT(f^^4Ti3«l«'''',' " .'; ',".' " .' .;LV
mj:: : :/¦
.FBllbtek'>(0bll&Mm!yir0&t'. ]>¦ .« u*. ..
•M'. ¦. '?
,T.
:.Rfed;hafeeF{'&pop/iyi«;c/Mi)? ... " '•.' .. •
.1?,
¦ Smk^Sienbtomm^ryspj^: ¦. •' ....
«sv-¦: ¦ "'
•SF
Sheepshead minnow (CypinoiiorivafiesMes) . ;
;s^,. '¦"
Shdft!Bi«we:t/?^«ewSW/d) - *"""" _'i *
Slcateisfjnfi?^ sp!) '
... ":
:Si
SpdkeihskelCUbphvcisKgia)'. . i . . r
.•'si'.--
StnpedbassiMoroneWaxatilis)', . , .
t."
SMp&MMishr(fiunMlw.majalB)': *1 - *, " .
¦sr
Siri'pei s'earobin (PHonotus evolansV .,
::sr.. • j
SttmmerMowder4Pamlicthl®;detfc^y ...
J: ' W
Tmitag (Tatltbga miiisl . i . ,
T ' * .
Tidewatensiferside(MnMajTemrasWiK)
"St-' '..
"W^fisK:?6,y«wcwwxiM/is) . . i
White perch fMrom-dmeacana)
.-T. .
T . ~ '
S;:'T' '
55.
-------
New.fiedfeni flarfcgr Marine.^Commer^'Teminal
''BidloMickl'A^SOTeMA^aitidSti^^n
jtV-'-
3,2.- 'Pii^sical j^iisK|^|i^^^
;§|i^g^%eaghef|
4«S*S«I .AMAal/n.rnH/« «i«ftHf,L^.'a ..' b*.'»* aaW" amwU *m ri'.- Iviiifciiii "**. 14'.*«. 1*1 l—'i > 'Jk —1,'J ~
j|§m;'ig|^'ivM|^V .batTiel^nortH^ :t§ ffie .^cusMet ::Rifer; aeveldpm|n| iqf industrial, comrnercial,- and
recpatifn|Ij;u|es that (in? tfie harbprj Midi ^pteuction of theJhtimcane. Isn-ieF. Decades ,»f •industeial
b/'tnnH/ urifKIn oWH,. olrVrirr'fW**' ikaril'eiVk'f^iKa W4pkAi"U Shallqw-^aterfand various
to faJ?#' 9? Q1® *
enters ithe Lower Harbor at; the; Hum barrier, where 'it sj^its; into,, two channelsr The/New Bedford
-, "•»*». *!¦)»' . - .< t.», ^ 5----w.*- , £-'V5>*?-*! -*¦«*£ V»~y"* •, fir "> •• -)j «r* <». J ."*4-v,~r v* w -w* ¦*«*-' » *y •ir«JP*../i»T «7 ? • ) W • • t =>¦ *i« r * tv v>— 7""" • •" ~ • *-«•.
Island and the eastern-sfiorei
to.a-#^h of -25 feet MLLW
dredge area, jndfhag been jjjoiiftM^«Anfo!«rD^13ra T.TO Un^/I nnrt lSni«
... . , .. T^:"?r. ...
Hattor;circu|ation tidM£ujfe«ts,=' 6urren^4n:'itt?''p!w§r'-Har|^'fajfep
w^lEniixed: bpuri<3arv>^ iseiiment^tg^ remain:
• suspendy ^;coUum?;(]^B^ .#,rae^^xce|rtiOTS:4to.; ^ea|So®er;Har^of; currents are;'the:
entrance, tqthehurricanebaiTier,.wherecurrentsh^^ flood
6
-------
:Nsw ^d%dHa^r;M^ejGqn^nx' Terminal
.4: Biology ofAtlantic/Sturgeoh (^cipenser o^inchm
4,1 Eife:'Hist(»%
• ;S$HiWniin(g tskeSfglificfe: Shafts 'AjptilMli^'%- July in ean^^sySems:
(ifiaiej and 2-5 years (femiaie|.:*leniiies
... »«" * ' !-¦ '• • ' J. ' ; ::" . * *¦• \<
! «gWtpi maturity for- Atlantic
'-popuratpris.J Average'agelat
4.2 Habitatand^Eeedihg Pi;pfei:ences
4.2.1 Depth
Sub-adult: and aduliAtlariiic
sturgeon occupy;;shallow:Cpastal wat^re.-adja^M'to estuariesi. Gapture of sub-
reeon tvbicallv. occurs atSdeoths^of? i©r50; midommateaSbv crayel .and gand
-------
> ' . ," , ^ V • •« , 1 „ - •! -\* ' ' ¦ , . . ' * H _ J " • '
^unton JetJal, ;^^(||^y^zecl ;abim^^fe^is^lygd|oxygen-is ^^.Qnig/If,,
.•;,#«?#' HibitS:r
.Atlintwi^urgegp
673i ¦¦ . j -¦• ' '¦
;gastk>pods, ampKipodis, isopods;and small fish^especially sand lances, Ckmmditkes spl) [ASSRJF; 2007;
mm
-------
pSSRX,
¦spawning;;;:
£or!&isireasor>, jthe-Mew- Bedford,® cpnsidCTeidf*lfalSitef-^for':s^awnmj^faMultS/and>'.e'ar|^"
lI&riea|^dMtli£ntib}8fiii^e^il'. •<*
dive^tfeMKitat^f^nc&Sv and?'migraiibn; patterns; <
ttems outlined :abaye,: foi,:^tlantici sturgeon* ;HMFS; Hats
^ek 1ist^ldiStBfCt:;;p(S|iQiMiSifi..
a i^Tn.if D^Unt«UA«> 4V>aw\ A'w**!!1 • /^^tf\kor /M \/lfc'C
.as#sf(feid -the" possibHI1^^1^^t|liful^%Uiiltiori^ .^Mr^^ftSfromv
segments (DPSs) oEj^fWach0tvns;cpi^ejdvih}.any
2001 -- Maifch 2d02: Atlantic sturgeon were not eaptured in any trawl. ¦ '••
"reasonable Mferenc^"J/dSfihed'
9."
-------
...7- •
___ t/se
^Ero'aesef ffi*Rayi^'20';Pc); 'ditaBaiei sturgepncwas':-alsd
»w,f *» »«,•%»»' iJk «v* a»*v*i*nw, ,vv»*«¦*vwi.wJ m ^icw.tsearora. lisruor oi
present;,,/ ••„ ,' ., . : *. -¦ ; •.-¦••¦£
'" ¦¦ ' ' ' Xv'. ' •'/.* ;a; '.'J-._. ji. :¦*¦''* ,'¦" "c .' . '¦
«%fi. . .fr'"A
In: litimif, based 'avaitaBie^ !data|-iiJ^tfaritic^stUrg^n v'hayeFneyel?
f I •' ' 1^'" J " iA-^i'i'"- 2*' •"* ; ¦•'• '•. _¦ t. ..• <> .• «v, j-->j'.'< i *4 Hi;;. * J Fl ''-
%eh| recorded ihJ^ew* Bedford
, H|jb®frjsfould notr/^*;s§|SiJ|f|i; a|?n«|r|h>^ pr?*fc?^^l|fg;that is -ut|]E£d by: |ui-aclult ,dr adult
'4tiirtt}c^siurpc?n'.'>'' it. /J" " """' " *
•lle;follbwir!fg,se£t|>:r!s;;|?i^
ami .a^ssfrient: nf direetflanf' injdirectiimpactf"^^ and.discussion of
5.1 Identification of Suitable Habitattwithin New Bedford Harbor
Irlippls fi?m The
i^u£nuun lur nu^j^usjoay^zy ii), NplTO (2QX0l.^A>
sub-adult and.adult
.Atlantic;' ^rgeon;
-------
U'nJ l,8e New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
Figure 2. Suitable habitat areas for Atlantic sturgeon sub-adults and adults
within New Bedford Harbor using USACE bathymetry data.
New Bedford Harbor Marine Commerce Terminal
Suitable Habitat for Atlantic Sturgeon Based on Bathymetry
NOTES
1. Suitable habitat identified based
on depth preferences for Atlantic
sturgeon from literature.
2. Projection NAD 1963
3 Bathymetry data collected by
USACE (1999).
•K
+
0 Oft 1
MM
1 *!¦ 1 IT*M
Suitable Habitat (10-50m)
Bathymetry
, ffMLLW
Although small areas of suitable habitat have been identified within the New Bedford Harbor Federal
navigation channel, based on bathymetry and depth preferences for sub-adult and adult Atlantic sturgeon, it
is highly unlikely that Atlantic sturgeon sub-adults or adults migrate to waters within the Lower Harbor, as
sturgeon would need to cross large stretches of unsuitable habitat to reach these areas. As discussed in
Section 4 above, sub-adult and adult sturgeon typically inhabit shallow coastal waters, conducting long-
distance migrations along the coast within a depth corridor of 10 - 50 m. Higher concentrations of these life
stages are associated with open bays and coastal areas, such as Massachusetts Bay (open bay) and coastal
Rhode Island. Inland migration only occurs during spawning runs into large freshwater rivers, and the
Acushet River is not spawning habitat for Atlantic sturgeon. Therefore, although New Bedford Harbor has
small areas of adequate depth within the Federal navigation channel, and prey base to support foraging sub-
adult and adult Atlantic sturgeon, it should not be considered as habitat that is utilized by this species.
5.2 Direct Impacts
The following sections summarize potential direct impacts to Atlantic sturgeon, including the potential for
physical impacts and acoustic impacts, from the proposed South Terminal project.
11
-------
Jn,;: ,,
New Bedford Harbor Marine Comnerec i i-rninai
Biological Assessment: Atlantic Sturgeon
5.2.1 Physical Impacts
Atlantic sturgeon arc suscepiible to eniraiument iti dredge dray-arms. impeller pumps, hydraulic pipelines,
and buckeS-and-barge dredge operations {ASSRf. 2007>. Studies have shown, however. lhar sub-adult and
adult sturgeon avoid dredge project areas during construction (ASSRT, 2007).
Dredging associated with the South ferrriini.il project is not expected to impact Atlantic sturgeon, as
dredging is proposed outside of ihe areas identified in Section 5 ! as suitable habitat (Figure I). Placement
of dredge spoil in the ("AD cells north of Pope's Island will overlap small areas identified as suitable
habitat. However, as .stated above. New Bedford Harbor should no! be considered habitat utilised by
Atlantic sturgeon due to its general K shallow depths and distance from 1 lu; coastal migrator)- corridor,
furthermore, sturgeon would need to cross large stretches of unsuitable habitat to reach these areas.
1'inalis. Atlantic sturgeon have never been recorded or observed in New Bed lord Harbor. Therefotc. no
direct, physical impacts to Atlantic sturgeon are expected from the South Terminal project.
$2*2 Acoustic Impacts
h:-waler consiniciinn activities., such as the pile dm in:.:, dredging and use nf nou-expio.sive rock removal
methods, and (potential) use of explosives proposed for she South Terminal project, generate sound that has
the potential for negative effects on Atlantic sturgeon. Se\era! studies ha\ e documented the effects of in-
water construction activities such as pile driving and use of explosives on various species of finfish. Effects
range from beha\iorat (startle response, avoidance}. \o ph.;siological (stress, temporars or permanent
hearing loss, structural and cellular damage o*' auditor1- and non-auditory tissues), to lethal {\orrnandeau
Associates. 20\Caltrans. 2009: Popper & ! lasting. 200V: Hastings & Popper. 2005: Yelvenon ct al.,
1975).
NMFS utilizes tv> o sets of criteria to assess potential impacts of in-water sound producing activities on fish,
one for non-explosive sound and one for use of explosives. Criteria for injury to fish from pile driving
activities were established by the fisheries Hvdroacoustic Working Group (FHWG, 2008). NMFS
Northeast Region lias adopted these criteria, summarized in Table J below.
Tabic 3. ( riteria for assessment s>! impact's on Atlantic sturgeon
'. oi iiisuiv Peak
20*1 dB iv ! n?';i
Onset .Jt'litiiirv ¦ Cumulative
187 dB re 1 nPa2«s
Kc'iji iiTdl l-.iVi.-ots
ISOdBsMs
for blasting activities. NMFS does not have formal aeons!!e guidelines or protective criteria for fish. NMFS
provided the Commonwealth with the guidelines summarized in fable 4 for use in this acoustic modeling
exercise, based on a study performed by Vloser (1994; jo assess acoustic impacts on juvenile shortness
sturgeon {Acipenser brevirostrum) and striped bass {Morone saxatilis).
Table 4. Crfterl* for assessment of fmptefs tm Atlaatic stnvgaMi
r,„ -
Level
Onset or'lniur. ¦ Peak f'resMsn. i oit!
Onset ol'Iniurv: Peak intuulse Level
L_i8-lE!inisec __ _
To delctminc
12
-------
i^dUse
kmnni.
project?; site to determine sound levels^ih New Bedford Harbor that may result from ncm-.
rockremoval. Site location for each model scenario' was
Based! driiaf^worsWa^?.scenia^i6i,"i.e: the'locatobn:.whei-#souHd',propagati6ri-,wbuld,5ex^^
source. 1 -1 1' • '
^mwleiiftg; results to: assess potential impacts, to Atlantic sturgeon; iig provided in the
tollo.wmg.'^tions; • ' ' .*'r 11 * ' . . •
'§* ^• 2* J! ~' Vibratory PileDriving-,
sp^:ofiwitati6h and
its-;
p^iip^\iK^liij|^Vesults foirrpilc Eiguije.J. As shown in,
Figpre_ 3, pile;jdi%ing ^ .(SPL) aBovi>
' 1 . * * i M 1 i#i° « * <« AM. > « « "I V V **' AA.« M ' rf-fcm ¦ —•Ml 1 ^ *V C? 4—' T" ' -\ 1 1
criteria-^Rioriset sound Jfte
. ; y,
lp>s^^|^will%^ilave Kot^acoustio
ieff^ts 6h-Atliantic?sturgeoni i «, ¦ . "f • • *• •* > r • »r
-------
Figure 3. Acoustic modeling results for pile driving activities in New Bedford Harbor.
70*55'0"W 70° 54'30 "W 70°54,0"W -
Pile Driving
(Vibratory Hammer)
Atlantic ctkjfQtof) iMbM
r-r-r-.*om*tmL*v}U*e
Ecotoocrt Srvk»* Inc.
^:'r
500
000
70-55-CTW
70*54'30"W
70*54'0*W
UndUse
New Bedford Harbor Marine Commerce Terminal
Biological Assessment Atlantic Sturgeon
5.2.2.2 Dredging and Use of Non-Explosive Rock Removal Techniques
Noise produced by dredging is dependent on the type of dredge used and the sediment being dredged.
Mechanical dredging, using a bucket, grab, or backhoe dredge, produces a repetitive sequence of sounds
generated by winches, bucket impact with substrate, bucket closing, and bucket emptying. In addition,
operation of mechanical parts of grab and backhoe dredges produces sharp transient sounds. Suction
dredging, using a hopper or cutterhead dredge, produces a combination of sounds from relatively continuous
sources that include the dredge engine and propeller, operation of pumps, and drag head movement along
the substrate (Normandeau Associates, 2012). Substrate properties affect the production of sound with
dredging activities. Dredging of sandy substrates creates less noise than dredging of rocky substrates.
A comparison of prospective sound data found in the literature indicates that the highest level of acoustic
and vibrational sound (and thus the highest potential for acoustic impacts on the resource) is most likely to
come from cutterhead dredge activities (Marie-Noel Matthews, JASCO Applied Sciences, personal
communication). Accordingly, as the activity to have the most likely highest resource impact, the
-------
.f^N,
'se
sNewlBe^raMirt»fWInne;G6mmerc»;Teriiiiiiial,
' *• • ;•* -ijr-ri . ' ' ' i- ""%,*¦* • •¦-•••
' A$^
j,..
at Acoustic
;afe
depicted 'Figure-#?. 'seleft&l fdr 'miaMi&gkSite: 1 M§ IcfcaitSd witMin the nayigation
^channels at ttfie.^rio'rmerhSife| is foe) same; locatiohias
modeled ^pI^d^iri|5^i^w>#®M|:^^iKS^,s *
f
&>,?¦
As witH;:pile!4rivin|| nqnlexabctvijtHelltfil dBfi^'i:
[Similar- to-'the
„. ,, , , a'peisonal communication)!
',Htov^enan'!theKl^sn# jmpulsejyalue
must Be useiii-
Areas witHin the (SISi^^ifiiuipijfiiArciiii^St
habitat areas;
- - -- ' - **V?V'-'"t -.-JijKyu. 1
Ssfmi
dre|ginig;am<| npq|explosiye'
&,ei
nsuiiable
New-'BiafoKlSHaSbor ¦• fas ;depicfe¥pn /Eiguire?#;- JAs; stated -abovej ^iitterfifead
,Modfelirig;resultS'therefore/:demonstrate
thM%dteyg)hgyan"(i jyith; Me| ifstlf wjil fiayf ®
acoustic/effects^ <• i; ";
ij/ .,
yft ¦ , ¦
¦ "v ,c
/„ ,
-------
New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
Figure 4. Acoustic modeling results for non-explosive rock removal activities in New Bedford Harbor, (a) Location #1,
within the deeper navigation channel area (b) Location #2, the northern boundary of the South Terminal.
4(a) Location #1, within the deeper navigation channel area.
70-55'0-W 70*54'30"W 70*54'0"W
16
-------
Land Us
New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
70'55'0-W
70°S4'ZtrW
70°54'(rW
5.2.2.3 Explosives
Explosives as a rock removal technique are proposed by the Commonwealth for the New Bedford Harbor
South Terminal project as a last resort for removal of rock if non-explosive techniques prove ineffective. If
explosives are required to remove rock within the proposed navigation channel, they will be placed in a
drilled shot hole beneath the floor of the Harbor and covered, which will act to attenuate the sound and
acoustic energy in the water column. Additionally, separate engineering modeling of potential vibrational
impacts of blasting on the New Bedford Hurricane Barrier (requested by the USACE) has also been
conducted; results indicate that the size of blast charges should be limited to < 50 lbs to ensure that potential
blasting for the South Terminal project will not impact the hurricane barrier, which is located to the south of
the project site (Figure 1). As such, the Commonwealth will be requiring that the selected contractor limit
the size of blast charges to < 50 lbs. In keeping with this requirement, acoustic modeling conducted for
resources impacts utilized charge sizes from 10-50 lbs.
Underwater explosions produce a spherical shock wave with a large oscillating gas bubble that radiates
sound. Pressure from underwater explosions consists of a primary pulse (shock) characterized by a rapid
4(b) Location #2, the northern boundary of the South Terminal.
WWVft 70*54'30"W
Non-Explosive Rock
Removal — Site 2
(Cutter-Head Dredge)
17
-------
Land Use
New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
rise time and exponential decay, followed by a series of bubble pulses (Normandeau Associates, 2012).
Type and size of explosive charge contribute to the pressure produced by an explosive.
Acoustic modeling of explosives was performed for charge sizes of 10 - 50 lbs buried at depth as described
above. Results of the model are depicted in Figures 5 and 6. Figure 5 depicts peak pressure threshold
(Figure 5a) and impulse level threshold (Figure 5b) for use of explosives without mitigation. Figure 6
depicts peak pressure threshold (Figure 6a) and impulse level threshold (Figure 6b) for use of explosives
coupled with use of bubble curtain(s) to mitigate potential impacts.
Figure 5. Acoustic modeling results of the use of explosives of various charge sizes for rock removal,
(a) Peak pressure level threshold (left), (b) Impulse level threshold (right).
70-5StrW
hM
70*54'3«m
70*54VW
Explosive
Rock
(Buried
L«w(
(1M
V77)
%
FM
500
2 000
70-55-0-W
Ttrsocw
TO-MTTW
7tr55trw
70"S4"3CrW
70*54'crw
Expioaiva Rock
I Removal
| (Buriad at Depth)
«su*•
i (75.6 p§>)
Ecdiiic^ >ww»i. t»c
Chang* SiZ*
[JO 500 1,000 2.000
H
IS
-------
Exploetve Rock
Removal wtth
Bubble Curtain
(Buried at Depth)
InviM* law)
TtvaaheM
(18 * wimc)
Explosive Rock
Ramoval mrtth
Bubble Curtain
(Buried at Depth)
Pstk PiMum
Threshold <75 6 p*)
masT'
ml
Land Us
New Bedford Harbor Marine Commerce Terminal
Biological Assessment: Atlantic Sturgeon
Figure 6. Acoustic modeling results of the use of explosives for rock removal with bubble curtain mitigation,
(a) Peak pressure level threshold (left), (b) Impulse level threshold (right).
Model results for use of explosives with and without bubble curtains for attenuation of sound demonstrate
that neither peak nor impulse level injuiy thresholds overlap with areas identified as suitable habitat for
Atlantic sturgeon. Potential use of explosives associated with the South Terminal project will therefore
have no acoustic effects on Atlantic sturgeon.
5.3 Indirect Impacts
Indirect impacts to sub-adult and adult (non-spawning) Atlantic sturgeon associated with dredging and in-
water construction activities include impacts to water quality and benthic prey assemblages. Dredging and
in-water construction disturbs bottom sediments, resulting in increases in turbidity during construction
activities. Dredging and in-water construction also results in the destruction of benthic feeding areas of
Atlantic sturgeon.
pan
;,ooo
70*55trw
TVfATKTH
70*wtrw
70-55'0-W
lAXO
70*55"CW 70'54"30"W 70"54'(TW
70*54'30"W
70*54tTW
7O"54'30"W
TCMtTW
WSOTW
Although the benthic community will be impacted by dredging and in-water construction, New Bedford
Harbor is not suitable habitat utilized by Atlantic sturgeon due to its generally shallow depths and distance
from the coastal migratory corridor. As noted in Sections 4 and 5 above, Atlantic sturgeon have never been
recorded or observed in New Bedford Harbor. Therefore, indirect impacts to Atlantic sturgeon are not
expected from the South Terminal project.
19
-------
5.4; Ecological Ben efits ofthePrqposedPrdject
Exposure Jo ]F>,C.Bs..has al^"6^^§%^^toicause fin and ajtere*}
tftunune ;Jrox|C'ft|f^f-jqag^-.-^a^i aeatWt'tfr :§yi|^J^i||f'-e|i^c^ito ;flnfi§hi,:
and chronic ;toxicii^¥df>1s6itie^mete1s®mav- ;leaiivitftJlnsa^nf fenmdnctive carta htliti^ hftHv\m*rtfAimatiArt
. _ .., . .
#J»M JJ& §§.
Ai lfli«lS/4 Irt CAi^flWrt" I'O DbrMAtial A4?,'WAnMmttlAM'/l <»A>J * *vi am>I 'V^«nt%Aan] 'Ax aAhI^mawha'h^ «iiiti m.JIi.a.%
increases -|jnt. Sr^j
. . ' ' '- • ¦' ' % ' • * ' ' • ! * 'r. '¦ '¦ ' . 'V -,
o^rinchi^i -NSwthe &e^hnet:RiVer';ai^ i^jjawriihg- Ji^Bitaft-fo^ this;
i^fgaiiswg sisiife M
Sturgeon. fje.Hudson River l^ew logc, 5a^0|I^^^j&:h4##lpii4"®^^.#»TOW8'. PF
nurS^h$itatfi '.
<;V •¦ V«
M/
._^iisipi^fefWffiin^sWmvm
¦';-rec§rded,,ih ^;uzza«fc:gay;,--wH»efj ^^••^MctuIdPS.^PC likely %ro&urfasi|lie:^ay Issproximal:,t| :kjp¥§!
mm*
#'^IpSil^ai^iwugh the;
.JiurTicane barnerinto4pwer?Ne^MOTdHa^ drive
it,qur.of the project area. Tl|refore?: tH||prcy|ct; 'tyilVJSav^ or: adult Atlantic"
¦ f Gqnclusioias .
'Ws PESj^i/S^PMS^#§& Msili 3WW MN ifm |pg!
-------
iBipIogicaJ'^^essin^t: t3^teti0Sftirgeo.ti
& Literature Cited
.fc .': f-T $ . '
1>F t*
sAtlantic iSturgebn: Status* fteyiek|Tliro.rjPS|p^ JPff*
! •*< - jm0$mHus ;c>x^riinch^J^RepSftfto
'.,- JebmaiylliiMo^JiS^pages;.;''" •••••.•'' 1 •- • :• •' •'• ¦>'.¦
, " ' • • . " ..
rf|y#R.||i! ;; ;.Fes'torati0n; • of-'sl^geoiisland
extent of lfi^dpKiptipM Thanks to the more than 600+
¦'Volunteer;B«p^l^tiM#Wesi|d^l^Wodas)Hdle'iH4iose!tt^li^lK and-commitment tbJBUsariasrBay
. s- f . t. ?- '¦> >,1"S --C Vp ^-iirk l\'J-7>j '-i'U . ¦ •. »1 \,-i ;-J , . . A', •»» ' _ ii-yZ"?". '¦' '• -V I v>«-J .3,. , ' • s ... 'J ¦ *t-
" r^Cfllad^'^ifiUbMfia^^possiBMr Fdfcmofe
¦ Wiiiiams-Pir^t6r'of^1dnitoringF>r6gram's.S08-999-6363ext203l..williarfis'@savet)U?zardsbaV:6rg
i ( yj-,; •> c ,/*. *.• '« v r ,« * •"***' ' - 1 ' '*¦ ,
©unton',
Eox; D A.
NERG (NGAA Award^A08NMF4050&l l) Decfemtiera010: 62 pagesl'' '
"¦' " :' it , *. .• • - ', it -J •'.'¦%»! 1 *¦ '*' •*
.w (t , , J . _ . *>t , „vt . , ,.•- • . .
^Gilbert;
l^^,pairiisa^ ^Nfl^Manlfredi 201of
fictc 'frtfeCrwMA'c 'R>rrwY4»»/S nft'/'iSntthm' TVprirfs -'!Ma"5ea/»Wiief»tte
:Man|gfment; 452',p|ge|.*
21
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"New;B®dif3»HlrB8r- MmneiGommcrcc T crmiiat
• Sturgeori
MassachusettsI^R0met®o^EnviromnentarFrotection(MassDEP^2O12a,
Terminal. Januaiy 18.201-2. 345 pages;, * . <, •
Massachusetts , Department .of. Environmental; Protection (WasspEP). f012bvl^s^n|er ^ -.BSEBl^
Comments on-..the January- 18, 2012".Submission by tlie Commonwealth, of-Massachusetts for the
$fe\y Bedford Marine. Commerce Terminal (NBMCT)". Prepared for I r.S^8ny|^n|^j^4p^i^^
Agency. June 18, 2012. 53 pages.
Ma|s|^U|p^®epartmeht
Fisienbs (MassjQMF). 2010:
theifew B^fpfd Harbor^Superifun(3,Site.ju]y.>20lb;6^||gesS5 ¦.•'.• *
• ' . * i* - i. . ' 'J' . | . .
Musick, J;A. f0#i.?fenti!- pish .Habitat of;Atlantic Sturgeon Acipens^9^%|i|^in4*^ie^io^^i|:
Chesapeake Bay. Final Report to NOAA/NMFS for NOAA Award NA03NMF4050200 (AFC) 37.
VlMpSp^iiK?Saentinc Report #145. Novemlaer 5,2005. 47 pages.
Mbw?, Be|leir|^iHar^^nisjtee ICQuncit 2001.4lfew Bedford "!febor;"'Tru:|tee (jdouncil "^e^ration; |&mj
• ¦Enwforffi^ . .. | '
tapJJ.S. Dept.
•„. . pages., • ' '¦ •
Materiai.Management'P4an,ilish#iesvReMuiPces Suttvey. for
•B'edforciK' ftfhal Report. Prepared Jof Massachusetts.OfficeiolrCoastolZone Management..'"M;
P?P^ ,'•¦ . , ,
NOAA Natioml; ©ente® ;2Q|2; :06as^| Water Ten perature Table:- -Atltotic - Coast
fertth.1'htifo':/7wwwjrtefo^ , ' |
^jRE>iO, 2009. Petition to liisi;;AUaniic.: Stegwn ||§g4p|8s^ p^imfijus •oxyrinckus);- as an Endangeretl
Species, or to List Specified Atlantic Sturgeon DPSs as Threatened and Endangered Species, and to
¦ '' ' •' ' - • ¦•' 1 ......
St||n, K.D. FriedK^:l^,^l|ffi^|p(] ;2CMp4; Atlantic S|'ur|eon H^jitat U'sg"
.along the Northeastern' Coasloffthe
- ' ' I ' ^ " " '"v
StOTe^iji.T^A. Lowery,J.D^FieldjiStHirJuty, p^::&WM,iMlip«Mc)rtaeo, C.®."Wiippis^./&dreasen..
1994. Distribution1 and abundance of fishes and invertebrates in; Mid-Atlantjc estuaries ELMR Rep.
No. 12. NOAA/NOS Strategic Environmental Assessments Division. Silver Spring, MD 280 pages.
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-------
EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix L
Determination of Compliance -
Floodplain Management Executive Order
Executive Order 12898
-------
EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
ENVIRONMENTAL PROTECTION AGENCY
REGION I \
; :';fOUTH TERMINAL PROJECT, NEW BEDFORp NPL SITE'
; FINAL DETERMINATION OF COMPLIANCE WITH ; •
'CERCLA AND THE 'NATIONAL CONTINGENCY PLAN WITH RESPECT TO THE
' ®EQUIREMENT§:OF'FL0p MANAGEMENT U |XECUTIvi:iRpER 11988
PROJECT 'NAME: STATE ENHANCED' REMEDY'IN NEW' BEDFORD SpUTH
TERMINAL, NEW BEDFORD, MASSACHUSETTS- ' • ¦' * '' 'J'/;' .
PROJECT.PROPONENT:' Pep^^entofliivi|;omnfn:|al Protection, Commenwealth, of"
Massachusetts'"' " : '* ' " 1
NATIONAL PRIORITY LIST'SITE; - :New Bedford Harbor;: j '
1.1 Project Description:/' TOe'Commonwealth of Massachusetts proposes the development of
an approximately 28-sacre' 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 Enhaacpd Remedy'("-SIR".) 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 atthe/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 aricl its appendices,
dated January 18? 2012 and submitted by the. Massachusetts ISepahment of Envifo'rtoental '
Protection ("MassDEP?')-on behalf of the Commonwealth (hereafter referred -to as MasspEP
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). EPA received additional
details about the Project in September and' October 2012, none of which affect this finding of
compliance with the Floodplain Management Executive Qrder. See Final Determination listing
of additional significant deliverables received from the Commonwealth which haye all been
incorporated into the Administrative Record for this Project.
The project's .components include: •'
, 1. Installation of a 1000 linear foot bulkhead in the Harbor adjacent to an existing 200
foot bulkhead tq forni a 1200 linear foot bulkhead, and placement of approximately 134,Q00
cubic yards of dredged material (clean sand) behind the bulkhead, resulting in the filling of
mtertidal habitat,, shallow, neafcshore sufc-tidal habitat, and salt marsh. This; filled structure,
Inferred to as a confined disposal facility ("CDF"), will be adjacent to approximatejy 21.54 acres
of upland that, together with; the filled structure, will comprise the terminal facility j'
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EPA Finai Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
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; ,
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, and 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 Fs (the "Region's") Final
Determination regarding Executive Order 11988 as applied to the State Enhanced Remedy and
finds that the Executive Order 11988, as applied to remedial decisions under CERCLA, is
satisfied subject to the conditions included herein. This Final Determination characterizes
Executive Order 11988 as a condition thai is a "To Be Considered" ("TBC") under the relevant
guidance documents relating to Section 121 of the CERCLA and implementing regulations
promulgated thereunder, 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 121 d)(2).
2.1: CERCLA: Under Section 121(d)(1) of CERCLA, [Remedial 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
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
release or threatened release,of such substance, pollutant, or contaminant.
2.2 CERCLA: Sectional 21(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
(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 release pr threatened release of such hazardous substance or
pollutant,. .the remedial"action...shall require.. .a level or standard,of controh. .which at least
attains such legally applicable or relevant and appropriate standard, requirement or limitation....
As the Determination notes, under CERCLA and the NCP, no federal, state or local permits are
required with respect to oiirsite cleanup actions. The purpose of the penriit 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,
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. .
2.4: Publication 9280.0-03 EPA A540/R-94/019 Considering Wetlands at CERCLA Sites
(May 1994)
This EPA Guidance document states that "Two issues of considerable importance on the nation's
environmental agenda are (I) loss of wetlands and other aquatic habitat, and (2) the impacts,
potential or actual, to human health and the environment for Siuperfund 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
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
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. [emphasis added]
3.0: TBC Policy Determination: Based on the law and guidance above, EPA has determined
the Executive Order 1,1988 is not an "applicable or relevant and appropriate" requirement under
Section 121 of CERCLA and the circumstances of this decision but that its substantive
requirements 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.
3.1 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...
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
(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.
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, eaeh 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 whefi 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 Army Cojrps dated September 1987. Based on that analysis, MassDEP concludes that the
relevant inforniation indicates that 44,100 cubic yards of fill equated to apprqximately 27.33 acre
feet of fill material will be placed between elevation =2.0 and elevation =?6V- NGVD due to the
South TepninarProject. (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
5
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
large, geologically stable infrastructure capable of supporting the development of offshore
renewable energy facilities.
In section 4.4 of Appendix E to the Final Determination, EPA evaluated a number of alternatives
to locating the SER in the South Terminal area. It concluded that those alternative sites were
either impracticable or not less environmentally damaging than the proposed SER site. That
analysis satisfies this prong on Executive Order 11988.
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, ffl design or
modify its action in order to minimize potential harm to or within the floodplain.
As explained above, EPA, in its analysis of compliance with Section 404 of the Clean Water Act,
EPA concluded that among the alternatives considered, the SER site was the least damaging
practicable alternative that was consistent with Section 404 of the Clean Water Act. This
determination satisfies the first half of this prong of Executive Order 11988. To satisfy the
second half, 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 Appendix E to EPA's Final
Determination of Compliance with Sections 404 and 10.
As part of its proposal, MassDEP anticipates filling approximately 0.11 acres of salt marsh, 2.07
acres of intertidal habitat, and 4.06 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 a concrete blanket 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 proj ect will result in some flood
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 11988 (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." [Emphasis added]
6
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix L
storage loss due to filling within the footprint of the facility. The effects of this loss would be
experi enced most significantly 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 and an analysis of the impact 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 within one year
of completion of the CDF. A fact sheet issued by the New Bedford Harbor Trustee Council in
June 2012 states that the Marsh Island restoration is anticipated to begin in late 2013 / The .
Commonwealth has stated that as long as the Marsh Island restoration and the SER proceed on
schedule, then the flood storage mitigation work will occur on a schedule that will, to the extent
practicable, parallel the Joss of flood storage capacity from construction of the SER project.3
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 for
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 Final Determination of Compliance with Sections 404 and 10.
2 In its "Response to USEPA Questions of October 12,20.12", MassDEP indicates that the Commonwealth is
unaware of any other project in New Bedford Harbor for which the Marsh Island project is anticipated to be
identified as mitigation for lost flood capacity. [The Commonwealth states that "it is certain that if such a project
existed, the Commonwealth would be aware of it."]
3 Id. " ' - . - , '
7
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EPA Final Determination for the South Terminal Project Appendix L
New Bedford Harbor State Enhanced Remedy
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. Issuing this
document in draft and providing the opportunity to comment on it meets the early public review
opportunity requirement.
8
•?
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix M
Determination of Compliance -
Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations
Executive Order 12898
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EPA Final 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), u|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,
"[ejach 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
t 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. EPA
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
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EPA Final 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.
MassDEP has prepared a Construction Management Plan (CMP) to provide the public
with details about the steps to be taken to minimize construction-related impacts. EPA
has not conducted a full review and approval of the CMP as part of this Final
Determination but will do so after issuance of the Final Determination to ensure the CMP
is consistent with EPA's Determination., However, the CMP appears to 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. For
example, the CMP:
• Includes a section on Public Involvement and Information that describes a process
for informing the public about progress of construction and upcoming
• construction-related activities and to provide opportunities for public
involvement.
• Identifies a point of contact for each of the relevant agencies associated with the
work.
• Defines measures to minimize air quality impacts. Measures include the
application of dust suppression water.
The CMP also appears to encourage contractors to use diesel oxidation catalyst retro-
fitted vehicles and equipment and to require an air monitoring program that will be
conducted throughout the construction process with air monitoring stations established to
obtain daily measurements of airborne particulate matter. The CMP also appears to
require that information will be made available to the surrounding community in an
easily understandable format and that a sound management plan is proposed that
minimizes offsite impacts from equipment that emit sounds.
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.' ,
EPA continues to recommend that the requirements of the Massachusetts Executive
Office of Environmental Affairs environmental justice policy 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
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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 unica tion
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
Strategize 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
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I low to Kii^urc Hftccrive Onmmmirv Kngugcment at Construction Projects: Lemons
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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't.o 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 residendal
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 the
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 ah 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
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How to Knsure h'ffccrivc Commimitv Knqiigemctir ;u Construction Projects: Lessons
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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 file for each project.
Project managers should ensure that these commitments are communicated during each
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Si ptt m!x:i 2009
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 .
importandy, 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: hrtp: / /www.epa.gov/region1 /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 tor
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.
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1 low r<> !'Insure Kl'fecrivc Community Kngngumem ;it Omsiruedoti Project: Lessons
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(
• Coordinate meeting announcements to avoid unrealistic or polarizing expectations:
Meeting notices should be consistent with the agreed upon goals for the meeting.
Community advocates should resist the temptation to craft provocative notices that will
attract attention but prime participants for a fight,
• Consider using neutral facilitators who can help turn a potentially explosive meeting
into a productive session: Simply inviting all of the stakeholders to sit down together
without a realistic plan for how to manage the discussion can do more harm than good. The
assistance of .skilled neutral facilitators or mediators will enhance the likelihood that an angry
and frustrated community, stressed project managers who feel under attack, and other public
officials or agency representatives with their own agendas, will-be able .to have a constructive
exchange.
Communication
• Establish methods of communication: Research how the community and affected public
receive information and learn which sources they trust. Determine the best method for
communicating with the community or affected public (e.g., electronically, mailings meetings,
door-to-door contact, advertisements, posters at construction site, radio stations, community
newspapers, local cable channel, telephone, etc.). Be sure to reach agreement with the
community on the chosen methods of communication.
Use a community liaison: The agency leading the project and the impacted community
should work together to identify a community liaison or'steering committee that will assist
with'disseminating project information to affected residents. Similarly, the agency's single
point of contact should.be disseminating information and questions to the appropriate
• departments, contractors, or subcontractors. 1 ,
Be accessible to the community; The agency leading the project should identify a person
who the community can contact if there are issues or concerns. Post contact information at
the site. Be sure that someone can be reached outside of normal work hours for emergency
situations.'
Communicate key information about project activities: Notify residents in advance
about use of alternative routes (include official detour routes) around construction sites,
dates and .times when the construction will take place (e.g., night work), types of
construction activities ("highly disruptive work"), potential impacts of construction activities
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Hmvro Knsure KtTcciivc Coiniminitv Kng,igeim:nr ur < Innsrrucrion Projeos: Kcssohs
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(e.g. traffic, loss of telephone service and other utilities), and locations of access and
construction staging areas. Where possible, use before and after photos to illustrate the
purpose of. the work. Keep the community informed and involved as you work though
barriers (e.g. extra costs, delays, adverse findings, weather and seasonal conditions). Post job
signs that describe the activity, not just the name of the agency, and include an information
and/or emergency hotline or website, if relevant.
Respond to key community concerns: Listen to the concerns of the public. Develop
options for responses to those concerns. Incorporate changes to the processes that address
the most important' issues, taking into account the limitations of the project, also incorporate
the changes that are easy to make. Make it clear what changes are being incorporated into
the project in response to community concerns.
Know when there are opportunities to participate: The agencies and contractors
involved with the project should help educate and provide technical assistance to the
community about opportunities to participate in the decision making process as well as
identifying possible options for improving the conditions surrounding the project.
Develop effective outreach materials: Ensure.all communications are clear, easy to read
(plain English or non-English languages), and accurate. Include a contact name and
number, and provide alternative contacts for non-English speakers. Be familiar with the
languages spoken and be prepared to provide interpreters at meetings and translate outreach
materials, when necessary.
Minimize Environmental and Public Health Impacts
Implement best practices or guidelines: Implement construction best practices or
guidelines to reduce noise and vehicle idling, utilize retrofitted equipment, control dust, etc.
(See an initial list of references below).
~ Increase enforcement; Increase enforcement of regulatory violations of concern to the
residents that may affect community health, safety, or quality of life.
Include emergency preparedness: If dealing with a hazardous substance or if there is a
potential for fires or explosions, establish a process/procedure for quickly notifying residents
at greatest risk. Work with first responders to find-out what procedures and protocols •
already exist. Work with stakeholders to designate an evacuation route from the community
of city, if necessary. The city may already have a route established that can be referenced..
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REFERENCES
EPA's Public Involvement Policy: http: / /www.epa.gov/publicinvolvement/public/index.htm
How-To Brochures For Effective Public Involvement:
http: / / www.epa.gov/publicihvolveme.nt/hrochures /index.htm
Tools for Public Involvement: http: / /www.epa.gov/publicinvolvement/involvework.htm
Rhode Island "Green During Construction Phase" Initiative: wwwlungne.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 /21 OOP / 2180.0 /21.818 /PB99.143489.pd f
* 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:
* Diesel Engine Retrofits in the Construction Industry: A How To Guide:
Diesel Exhaust in New England: •
http: / /www.epa.gov/regionl /eco/diesel/assets/pdfs/diesel brochure:pdf
Construction Bid Specs: ' •
http: / / www.epa.gov/regionl / eco/gb3 /pdfs / ConstructionVehicleRetrofitSpecs.pdf
• Emergency Planning and Community Right-To-Know Act (EPCRA): ,
http; / / www- epa-gov/oecaagc t/lcra. html 1 .
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix N
Determination of Compliance —
Invasive Species Executive Order 13112
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced 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 bf 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 to:
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.
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Consistent with1 this Executive Order, EPA Has 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. The
Commonwealth will implement an Invasive Species Management Plan ("ISMP") which
includes a requirement to conduct annual monitoring on 1/3 of the pilings at the facility
using divers. See MassDEP 2012r, "New Bedford Marine Commerce Terminal Invasive
Species Monitoring Plan - Facility, Bulkhead and Pilings. " Thus, every 3 years, all of
the pilings will be inspected for the presence of aquatic invasive species. If the survey •
identifies an invasive species not previously identified in New England, the
Commonwealth will work with the Massachusetts Office of Coastal Zone Management,
Aquatic Invasive Species Program to "assess the ecological risk posed by the new invasive
species and to develop and implement an invasive species control plan for the new
species.
In addition, there is a potential for invasive species to colonize the terminal site and the
salt marsh creation and restoration mitigation project that the Commonwealth will
construct at River's End Park. EPA has reviewed the ISMPs for these areas (Id., and
MassDEP 2012r. Appendix 12), and believes that the revised ISMPs, in conjunction with
the requirements of the Final Mitigation Plan (MassDEP 2012r), will be adequate to
control the spread of invasive plant populations at the facility and within the proposed
wetland mitigation area at River's End Park.
In accordance with the Executive Order, EPA is requiring implementation of the various
ISMPs as a condition of approval for the South Terminal Project.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix O
Determination of Compliance -
Fish and Wildlife Coordination Act (16 U.S.C. § 661-667e)
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EPA Final Determination for the Proposed South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix O
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.
EPA consulted with both FWS and NMFS pursuant to its obligations under FWCA. FWS did
not provide comments on the South Terminal Project related to its interests under FWCA.
NMFS did provide a recommendation on August 21, 2012 in its consultation role pursuant to
FWCA. NMFS recommended that, in order to avoid adverse impacts to migrating anadromous
fish, blasting activity should not occur between April 1 and June 30 of any year, and it noted that
attenuation devices such as bubble curtains or cofferdams may reduce the noise level exposure to
surrounding fish species and thus reduce impacts and mortality from blasting.
As discussed in Appendix H and Appendix I of EPA's Final Determination, EPA is not
approving any blasting at this time. The Commonwealth has identified alternative rock removal
techniques that are expected to result in acoustical impacts that would be substantially lower than
those predicted for blasting. As a condition of the Final Determination, EPA is requiring that
rock removal activities may not proceed until EPA evaluates the acoustic modeling study that the
Commonwealth submitted on November 16, 2012 and determines the acceptability of the
modeling methods and results, to ensure that the noise impacts will not adversely affect the
anadromous arid other fish species, including the Atlantic sturgeon.
For reasons discussed in sections 5, 6, and 7 of Appendix E (Compliance with Section 404 of the
Clean Water Act and Section 10 of the Rivers and Harbors Act) of EPA's Final Determination,
EPA has concluded that the South Terminal Project, if constructed consistent with approved
plans, best management practices and mitigation measures, will ensure the conservation of fish .
and wildlife resources and will not cause significant adverse effects.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix P
Determination of Compliance —
Consultation and Coordination with Indian Tribal
Governments
i—* , j • -j -t j—j f
Executive Order 13175
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix P
Executive Order 13175: Consultation and Coordination with Indian Tribal Governments.
In accordance, with the EPA Policy for the Administration of Environmental Programs on
Indian Reservations (November 1984) and Executive Order 13175: Consultation and
Coordination, with Indian Tribal Governments (November 2009), tribal consultation
involving the New Bedford South Terminal State Enhanced Remedy project has been
ongoing since the start of the project.1
Since 'this State-Enhanced Remedy project has the potential to affect tribal interests, EPA
Region I initiated consultation that established coordination and communication among
EPA, the Commonwealth of Massachusetts, the Wampanoag Tribe of Gay Head
(Aquinnah) and the Mashpee Wampanoag Tribe. Both tribes claim cultural affiliation
with the project area. ' " ,
Tribal environmental and historic preservation representatives participated in the
consultation and communication activities that have been ongoing from December 2010
through October 2012. These consultation and communication activities included
¦ conference calls, on-site visits and other face-to-face meetings in the vicinity of the
project or at the National Oceanographic and Atmospheric Administration, campus in
Woods Hole, Massachusetts, which was a mutually agreeable and convenient meeting
location for both consulted tribes. A chronology of the consultation activities is included
in the administrative record for this project.
During these meetings, the Commonwealth would describe progress in project plamiing
and investigation activities, and EPA facilitated dialog with the tribes to ensure that tribal
comments and concerns were expressed, understood, and acknowledged by all parties.
The tribes received copies of reports, findings, and drawings associated with the project,
and were provided with opportunities to comment and discuss any issues during the
consultation meetings.
The consultation discussions with the tribes and the Commonwealth included substantive
dialog on historical and environmental aspects of the project. Consultation under the
authority of section 106 of the National Historic Preservation Act that has transpired is
described in greater detail in Appendix G of EPA'sFinal Determination for the project.
These discussions largely centered on the discovery and preservation of archaeological
features (paleosols) that were identified as culturally significant to the tribes. The project
design was altered to completely avoid these features, and a determination EPA issued in
September 2012 found that the project will not affect historic properties.
During the course of the consultations, the Commonwealth discussed the project
component that involved wetlands mitigation planning with the Tribes in August 2012,
• • Consultations with potentially affected Indian tribes commenced prior to the effective date of the EPA
Policy on Consultation and Coordination with Indian Tribes (May 2011). Nevertheless, EPA has
conducted the consultations with these tribes in a manner generally consistent with that policy.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix P
and both tribes requested that the Commonwealth consider bulrush and cattail plantings
as part of the wetlands mitigation plan. The tribes identified these species as culturally
significant. EPA and the Commonwealth then informed the tribes that the proposed
wetlands mitigation scope involved saltwater marsh restoration, and that freshwater plant
species such as cattail and bulrush would not be compatible with the proposed saltwater
marsh wetlands mitigation plan.
The tribes were sent the Commonwealth's draft final mitigation plan on 11 October 2012
and were sent the Commonwealth's final mitigation plan on or around 23 October 2012.
The Wampanoag Tribe of Gay Head (Aquinnah) relayed to EPA on 26 October 2012 that
the Tribe has an interest in further discussion of the mitigation plan.
While EPA acknowledges the desire of the tribes to have culturally significant species
included in the wetlands mitigation plan, the project does not involve impacts to any
viable freshwater wetlands containing these plant species, and therefore there exists no
impacted "traditional cultural property* comprised of these plant species that could be
considered as a historic property under Section 106 of N IIP A. For this reason, there is no
federal obligation to take any action to mitigate under section 106 of N HP A. Since EPA
received no objections from either tribe relative to historic properties within thirty days of
the 28 September 2012 finding that the proposed project will not affect historic
properties, EPA has fulfilled its responsibilities under Section 106 of the NHPA.
Additionally, the EPA has fulfilled its responsibilities under the authority Executive
Order 13,175 for conducting govemment-to-government consultation with the tribes
regarding this final decision concerning the Commonwealth of Massachusetts South
Terminal Project application. EPA has understood and considered the tribes' request that
the Commonwealth include these freshwater species in the wetlands mitigation plan.
EPA has concluded that doing so would not be practical because the mitigation will be
focused on saltwater wetlands.
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EPA Final Determination for the South Terminal Project
New Bedford State Enhanced Remedy
Appendix Q
Responsiveness Summary
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix Q
EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Responsiveness Summary
Table of Contents.
I, Introduction
A. Summary of Comments
II. Response to Comments
A. General Comments
B. Detailed Comments from Elected Officials
C. Detailed Comments from Area Residents
D. Detailed Comments from Trade Unions
E. Detailed Comments from Business Advocacy Groups
F. Detailed Comments from Non-profit, Religious and Academic Institutions
; G. Detailed Comments from Federal and State Entities
H, Detailed Comments from Commercial and Business Community '
Attachment A: List of Submitted Comments
Attachment B: Reference Documents
I. Introduction
EPA received comments from 58 separate stakeholders oh its Draft Determination for the
Proposed South Terminal project during the public comment period held from July. 16,
2012 through August 21, 2012. See Attachment A for a list of those who submitted
comments. ,
A. Summary of Comments
The comments reflect nearly unanimous support for the Proposed South Terminal
Project. Comments centered around the prospect for jobs, economic growth for New
Bedford and surrounding communities, and the great potential for a variety business
expansion. Many comments stressed the importance of ensuring that New Bedford and
its surrounding communities benefit from the Project, particularly in securing jobs, union
apprenticeships and training so that local high school and college graduates have
opportunities to work and build a life and future in the area. There were also a number of
comments about the need to balance growth of the waterfront area against the impact on
the local community and to ensure both are protective of human health and the
environment.
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix Q
Several comments, while voicing support for the primary use of the terminal to support
the wind industry, did not support the use of a Confined Aquatic Disposal (CAD) cell for
disposal of the navigational dredged sediment. Others noted that not all CADs in the
Harbor are the same as each other. Some comments pointed out the important nexus
between the Superfund dredge project and this State Enhanced Remedy project; that is,
that the dredging associated with this South Terminal Project will remove contaminated
sediment that would not be addressed by the Superfund remedy since PCB concentration
levels are below the Superfund cleanup levels. There were also comments on the air
monitoring and long-term monitoring requirements, impacts to shellfish and fishery
habitat and proposed recommendations for avoiding and minimizing those impacts. As
part of its comments, the Commonwealth of Massachusetts submitted a revised site
configuration plan. Finally, a significant number of comments urged swift action by EPA
to issue this Final Determination approving this Project.
EPA did receive a number of comments about the New Bedford Harbor Superfund Site
remediation. Because the Superfund remediation is outside the scope of this comment
period, those comments are not relevant to this Project and will not be included in this
Responsiveness Summary. EPA directs questions about the Harbor Superfund cleanup to
www.EPA.gov/nbh for more information or to EPA Remedial Project Manager (RPM)
Elaine Stanley, one of the three RPMs for the Site, at Stanley.elainet@epa.gov.
All comments received are included in the final Administrative Record for the
Final Determination for the South Terminal Project. EPA's responses to these
comments are described below.
II. Response to Comments
A. General Comments
1. Comments nearly unanimously supported construction of the South Terminal and
its potential use to support the offshore wind industry and future use for cargo
shipping as an important economic boost for the New Bedford area.
EPA Response:
EPA thanks all of those who commented and agrees that the planned and future use of the
marine terminal offers the potential for important economic opportunity for New Bedford
and the surrounding region. EPA evaluated all aspects of the Project to ensure it does not
cause significant short or long-term impacts on the local community and that it minimizes
impacts to all resources to the maximum extent practicable. Mitigation for those impacts
that will be caused has been included in the Project and is a condition of EPA's approval.
The South Terminal project continues to support the nexus of the State.Enhanced
Remedy to the Superfund cleanup in that the navigational dredging will remove 225,600
2
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix Q
cubic yards of PCB-contaminated sediment with concentrations below 50 ppm that would
not have otherwise been addressed since the PCB concentration levels are below the
Superfund dredging cleanup levels for the lower Harbor. In addition, upland areas with
soil contamination that may not have been addressed for a long time will be remediated
as part of this Project pursuant to the state's hazardous waste cleanup program.
On balance, EPA believes this Project can achieve both its development goals of serving
as a marine terminal to support the offshore wind industry and be conducted in a safe,
protective mariner,
2. Many comments identified the urgency for EPA to issue a positive Final
Determination so that job creation and business expansion could begin as soon as
possible.
EPA Response: ,
Job creation and economic development are important to EPA. It is also our
responsibility to ensure any proposed project is protective of human health and the
environment and, as part of the State Enhanced Remedy, meets all substantive federal'
and state requirements. EPA views its mission to protect human health and the
environment very seriously and wants to ensure this Project meets all the necessary
criteria before a final determination was issued. Significant resources were devoted to
ensuring protectiveness by, among other things, identifying and analyzing the impacts of
the Project and reviewing the mitigation plans for those impacts. EPA conducted a
careful review of the alternate locations identified by the Commonwealth to site this
terminal, and found the South Terminal location to be the least environmentally
damaging practicable alternative for a variety of reasons. Consultation with other
federal agencies was conducted where required and the Commonwealth provided the
additional information outlined in the Draft Determination. EPA has reviewed all the
material provided and believes the project meets all substantive requirements. With this
Final Determination, the South'Terminal Project can now move forward.
3. Several comments raised concerns about the use of a CAD cell to contain the
navigational dredged sediment contaminated with less than 50 ppm PCBs and
voicedfears offuture leakage or failure of the CAD cell and lack offunding to
address potential leakage or failure of this CAD cell.
EPA Response;
EPA and the Commonwealth have determined that CAD cells are a safe and economical
disposal alternative to permanently isolate and dispose of PCB-contaminated sediment
generated from navigational dredging. Three navigational CAD cells have been built to
date, with two now filled. These two (the borrow pit and CAD cell 1) will be capped as
part of this Project and the third cell (CAD cell 2) is nearly full and will reach capacity as
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New Bedford Harbor State Enhanced Remedy
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a result of disposal of dredged sediment during this Project. Finally, a fourth navigational
CAD cell, CAD cell 3, will be constructed and used during this Project, -
A stable, clean, three foot thick cap will be highly effective in isolating the contaminated
dredged material from the surrounding environment. Sediment which will naturally build
up on the cap will further isolate the dredged material in the cell. As required by both
EPA and the Commonwealth, long-term monitoring and institutional controls to prevent
disturbance will ensure the stability of the cap. After final construction and capping,
completed CAD cells will be clearly marked on navigation charts, plans and other records
of construction, so they may be known to mariners and planning officials, monitored in
the future or re-visited, if necessary, for any reason. Due to the expected permanence of
the cells, and their ability to prevent further spread or contact with the environment
during storage, the CAD cells will be equally suitable for permanent disposal of PCB
impacted sediment.
CAD cell technology is a recognized, protective contaminated sediment disposal
approach that is being used more and more frequently, especially for navigational
dredged material that is unsuitable for open water disposal. CAD cells have been used in
recent years for navigational dredging in .major New England ports such as Boston, New
Bedford and Providence, and have also been used (or selected for use) at contaminated
sediment Superfund sites in Washington, Minnesota and Maine (EPA, 2010).
Significant engineering studies as a part of the permitting process of the Dredge Material
Management Plan for New Bedford / Fairhaven Harbor from 1999 to 2003, completed by
the Commonwealth, support this determination.
4. EPA received comments recognizing that one of the many benefits of the Project
was the removal of PCB-contaminated sediment that would not otherwise be
addressed as pari of the Superfund cleanup and the remediation of upland areas
that might not otherwise be addressedfor a long period of time.
EPA Response:
EPA appreciates the comments that recognize the environmental and public health
benefits of the Project. As stated above, EPA agrees that the navigational dredging
associated with this Project provides additional protectiveness to the Harbor remediation
by removing sediment with concentrations below 50 ppm.
With regard to upland contamination, although not subject to Superfund cleanup, EPA
agrees that there are environmental and public health benefits by identifying and
characterizing contaminated areas at the upland properties that comprise the main
terminal facility and from the remediation, under the state cleanup law, which will occur
on these properties. During due diligence activities completed at the proposed site,
previously unknown concentrations of PCB and petroleum hydrocarbon impacts to soil
were located. Identification of these impacted soils will allow the Commonwealth to
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address the potential hazards to the public that these soils represent. The
Commonwealth, through this project, will excavate the most highly contaminated soils
("hot spots") and dispose of that material off-site in accordance with the Massachusetts
Contingency Plan (MCP) and the Toxic Substances Control Act (TSCA). The remainder
of the site will be capped to ensure that any residual contaminated material is sequestered
and remains isolated from human and environmental interaction. The upland
environmental investigation and remediation portion of the project is further discussed in
the response to a comment provided by Mr. Frank Haggerty. (See Comment II.C.8) EPA
has also conditioned its Final Determination on the Commonwealth performing due
diligence on ancillary properties and, if necessary, remediating those properties under the
state cleanup law.. ¦ '
5: A significant number of comments focused on concerns about providing jobs to
. workers in New Bedford and its surrounding communities and about providing
opportunities through jobs to retain local graduates and young adults so that this
segment of the population can build a future in their hometowns. Questions were
raised- about union hiring and apprenticeships and about job training programs.
Some comments expressed concern that jobs would he directed only to big
companies and union workers to the exclusion of those most impacted by the
project.
EPA Response:
EPA thanks all of those who submitted comments on this very important issue of jobs
and retaining local talent and recognizes not only the benefits of job creation from the
economic investment of such a project but also recognizes that the local community
sustains the most impacts from the Project. It is EPA's role to ensure that this Project is
protective of human health and the environment and meets the substantive requirements
such a Project must meet were it a permitted project. Hiring and contracting objectives
are beyond the purview of EPA. The Commonwealth of Massachusetts, as the Project
proponent and lead agency would be responsible for hiring and contracting decisions.
EPA has passed these concerns on to the Commonwealth. .
B. Detailed Comments from Elected Officials
1. Jon Mitchell, Mayor of New Bedford\ voiced strong support for the Project and
the terminal's primary use to support the offshore wind industry. He noted the
attributes that make New Bedford well positioned to support the offshore wind
industry, particularly its deep water port, industrial space to assemble and stage
wind turbines, strong highway and railway access, and the seafaring and
manufacturing skills the industry requires: The Mayor also commented on the use
of a CAD cell as part of this Project, noting, in his view, "the infinitesimal risk,
the leakage from the CAD cells contemplated by this project is greatly outweighed
by the potential thousands ofjobs that will be created as a result of this Project,
bringing in millions and perhaps billions of dollars of revenue into the pockets of
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New Bedford Harbor State Enhanced Remedy'
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New Bedford citizens and citizens of the surrounding region " and\ he noted, not
all CAD cells are the same.
Remarking on the efforts of state and city staff and the diligence of EPA on this
Project, he urged swift action on EPA's issuance of a final determination,
EPA Response;
EPA thanks the Mayor for his comment supporting the South Terminal Project and the
marine terminal's primary use to support the offshore wind industry. For all the reasons
set out in response to General Comment No. 3 above, we agree that the CAD cell
contemplated by this Project is protective and appreciate the Mayor's support for the
CAD cell. We also agree with the Mayor that the New Bedford community and
surrounding area, with its rich history in seafaring and manufacturing, has much to offer
as the working waterfront continues its path towards modernization. See EPA's
response to General Comment No. 2 above regarding the. need for urgency in issuing this
Final Determination.
Because of the magnitude and complexity, of the Harbor cleanup and the State Enhanced
Remedy, EPA has had a long-standing relationship with the City of New Bedford, and its
surrounding communities. We thank the City and all its departments and agencies for its
collaboration and support in working with EPA to ensure that remediation and
navigational dredging are done safely as development and economic revitalization occurs
in this region.
2. State Representative Tony Cahral voiced his strong support for the Project,
noting his past efforts to secure funding for it, his commitment to continue those
efforts and the potential for jobs that the Project could bring to the area. He
commented on the positive benefits of removing contaminated sediment that
would not otherwise be addressed by the Super fund dredging and of the savings
that result from the use of clean dredged material as fill for construction of the
terminal itself (the confined disposal facility). Representative Cabral also
commented on EPA's responsibility to minimize the environmental impact of the
Project during construction and during the terminal's operation, and the .
Project's impact on the nearby residents. He emphasized a hope that all
interested stakeholders listen to each other and take all environmental concerns
raised seriously while balancing the positive aspects of the Project.
EPA Response:
EPA thanks State Representative Tony Cabral for his comment-in support of the Project.
EPA agrees there will be positive benefits from removing contaminated sediment that
would not otherwise be addressed under EPA's Superfund dredging as well as from the -
use of clean dredged material as fill for the terminal itself. In addition,, some of this, clean
material will.be used in the creation of subtidal and intertidal habitat to mitigate some of
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the Project's impact on natural resources. It is EPA's role to ensure that this Project is
protective of human health and the environment and meets the substantive requirements
such a project must meet were it a permitted project.
Regarding potential environmental impacts of the Project during construction and
potential impacts on nearby residents, in this Final Determination, EPA is requiring that
the Project meet all protective performance criteria it has established for the construction
of the Project. In addition, EPA is requiring a Construction Management Plan prior to
the start of work which will outline how impacts on the community will be reduced to the
maximum extent practicable through the use of measures such as requiring the use of
ultra low sulfur diesel fuel in all diesel engine powered equipment, the use of mufflers
and enclosures to minimize sound, and certain traffic patterns to minimize impacts.
EPA has also passed these concerns on to the Commonwealth of Massachusetts, as the
Project proponent and lead agency overseeing and monitoring all aspects of the Project. .
J. State Representative Chris Markey voiced his support for the Project,
commenting that this Project will be a total game changer for a city like New
Bedford. He noted this is the first real opportunity to look towards the future, not
just two or three years, but 25 years down the road, and that it is supported by the
resources of many sectors including UMass Dartmouth, a leader in marine
renewable energy,, the Mayor of the New Bedford, and the'stale Capital Assets
and Bonding division of which Rep. Cahral is the chair. "We have incredible
resources to do it, and it needs, to get done. "
¦EPA Response:
EPA thanks State Representative Chris Markey for his comment in support of the Project.
4. Congressman Bill Keating (through James Quigley) offered a statement of
support commenting that [the Project] "...marks a milestone in the state and
federal collaboration. The development of the New Bedford Marine Commerce
Terminal will be the first facility in the country to support every phase of offshore
wind development.. He notes "...this region has potential to become the
magnet for all aspects of renewable energy industry... and that he is
.. especially eager to witness the expansion of the economic opportunity for the
port in New Bedford with additional capacity for container and cargo shipping. "
Finally; he noted that projects such as " ...the New Bedford Marine Commerce
Terminal will contribute to our nation's larger goal of reducing the dependence
on foreign oil and fighting back against global warming and climate change. "
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EPA Response: .
EPA thanks Congressman Keating for his comment supporting the Project and shares his
view that South Terminal's use to support the offshore wind industry will contribute to
reducing global warming and climate change.
5. Congressman Ed Mar key (through Mark Gallagher) offered a statement of
support for the Project commenting on the potential for "...New England to
become a world leader in the offshore wind industry... " and that "... investing in
the New Bedford Marine Commerce Terminal will come hack to Massachusetts
many times over in the form of new jobs and economic growth in the region. "
EPA Response:
EPA thanks Congressman Markey for his comment supporting the Project.
6. Senator John Kerry (through Amy Kerrigan) offered a statement of support .
noting, "The New Bedford Marine Commerce Terminal represents an important
milestone for the offshore wind industry in Massachusetts and the nation. It will
be the first U.S. port engineered to loads required for turbine-assembly and
deployment. The terminal is also an important step in America reclaiming its
position as the world in innovative clean technologies. " The Senator also noted
the value of the Project in reducing the threat of climate change, the potential to
create critically needed jobs in New Bedford, and that it will bring new businesses
that will help grow the economy in Southeastern Massachusetts. He voiced his.
¦ opinion that " ...the terminal must be developed in a way that protects the
important ecosystems in Massachusetts as well as federal waters and the health of
workers and residents living near the port". He also noted that New Bedford is
"... the ideal location. Inside the hurricane barrier near high wind areas and
readily accessible by water and land-based modes of transportation and it's
already host to a skilled maritime industrial workforce. "
EPA Response:
EPA thanks Senator Kerry for his comment supporting this Project and shares his view
that the South Terminal Project and its supporting role in the wind industry can help
reduce the threat of climate change. We also agree that the Project must protect human
health and the environment and, for all the reasons stated above in the General Comment
section, we find that this Project meets those standards.'
7. Congressman Barney Frank (through Inez Goncalves-Drolet) offered a statement
in support noting the Project "...has immeasurable economic benefits to the state
in general and the city specifically. " With regard to disposal of dredged
sediment, he said, "it is important to fully educate the public regarding this
disposal method, and I commend the EPA and the Commonwealth for their
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continued outreach and commitment to making sure that the public's concern are
. fully vetted in this type of forum. The benefits of this project cannot be
understated.," Finally, he noted, "The public and private investment these
projects generate will significantly increase employment and revenue throughout
the region and provide the type of clean energy this country needs to reduce our
dependency on fossil fuels. "
EPA Response:
EPA thanks Congressman Frank for his comment supporting this Project and his
recognition of EPA's and the Commonwealth's efforts to involve the public in its
activities in .New Bedford and to address the communities' concerns about this Project,
including the use of a CAD cell. EPA is committed to continuing its public outreach
activities to ensure all concerns are appropriately vetted.
8. Steve Martins, City Council President and Ward 2 City Councilor, New Bedford,
voiced his support for the Project pointing out that it "...will benefit the City of
New Bedford significantly and enhance the economic activity... " and will provide
"... another reason for citizens to stay in our city and invest". .Noting not only the
primary use of supporting the offshore wind industry but the potential use for
. cargo and other shipping activities, Councilor Martins commented that this
' Project will bring much-needed jobs to the area. He also thanked EPA for its
" willingness to hold open public hearings and to appear before the City Council to
explain other projects or address concerns.
EPA Response:
EPA thanks City Council President Martins for his comment in support of the Project .
and continues to make itself available to the City Council if further concerns are raised
or further information is needed about the South Terminal Project.
9. Henry Bousquet, Ward 3 City Councilor, voiced his support for the Project and
its potential to open up opportunities for employment in New Bedford which is
badly needed.
EPA Response:
EPA thanks Councilor Bousquet's for his comment in support of the Proj ect. .
10. City Councilor Oaks [sic] (Joseph Lopes) voiced his support for the Project
noting some of the benefits including that it addresses contamination in some of
the upland parcels and it provides local young people with the opportunity to
work in the area. He supported the use of the CAD cell for this project and
recognized the efforts of local officials and EPA for their work on this Project
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EPA Response:
EPA thanks City Councilor Lopes for his comment in support of the Project and the use
of a CAD cell to contain dredged sediment with low levels of PCB contamination. EPA
also refers to the responses in the General Comment section about the environmental
and human health benefits of the Project,
11. Bruce Duarte, Ward 4 City Councilor, voiced his support for the Project and its
value in bringing renewable energy to the community and the potential for
employment. He also voiced support for the use of a CAD cell for this Project.
EPA'Response;
EPA thanks City Councilor Duarte for his comment in support of the Project and for his
support for the use of a CAD cell to contain dredged sediment with low levels of PCB
contamination,
C. Comments from Area Residents
1. Karen Falange [sic] (Vilandry) orally commented that she supports the Project
but not the use of a CAD cell She .commented that one part per million PCB is
lethal and that PCBs are a dioxin. She also commented that there is a cumulative
effect of the dredging projects in the Harbor, adding more PCBs to the Harbor
and that CAD cells are "just a hole in the bottom of the sea, not lined. Just dig a
hole, "throw it in and that's it. " She also commented that "when it was brought
out to us tonight that tens of millions of dollars and billions of dollars have been
invested in this South Terminal Project. Certainly 90 mill can be squeezed out for
off-site disposal of PCBs. " She also commented that the Superfund dewatering
facility should be used, if necessary, for off site disposal.
EPA Response:
PCBs are a group of synthetic organic compounds that contain 209 individual chlorinated
biphenyl compounds (also known as congeners), twelve of which are considered to be "dioxin-
like". PCBs have varying harmful effects that may pose a risk to human health and the
environment and must be properly addressed. This is exactly why EPA is conducting a
Superfund cleanup of the PCB-contaminated sediment in New Bedford Harbor.
The South Terminal project will remove 225,600 cubic yards of existing PCB-contaminated
sediment with concentrations below 50 ppm that would not have otherwise been addressed
since the PCB concentration levels are below the Superfund dredging cleanup levels for the
lower Harbor.
CAD cells are currently viewed as a permanent disposal solution by both EPA and the
Commonwealth. A stable, clean, three foot thick cap will be highly effective in isolating
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New Bedford Harbor State Enhanced Remedy
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the contaminated dredged material from the surrounding environment. Sediment which
will naturally build up on the cap will further isolate the dredged material in the cell.
Previous studies, including the Commonwealth's own Dredge Materials Management
Planning process, a public process that took place between 1999 and 2003, have
demonstrated that CAD cell technology is a viable and safe method for containment and
isolation of contaminated sediment.
With regard to Project costs, the Commonwealth has communicated to EPA that the
Commonwealth does not currently have a final construction cost for the New Bedford
Marine Commerce Terminal (that information will not be available until the project is
publicly bid. The "billions of dollars" to which the respondent is referring, may be in
reference to the amount of expected investment in the Northeast Region by private
development in the Wind Energy Industry.
With regard to utilizing EPA's dewatering facility to process sediment generated from
this Project, the Superfund program will not be responsible for funding any part of the
enhanced remedy consistent with 40 CFR 300.515(f)(l)(ii)(A).
2. Brendan Bowen, a recent college graduate, voiced his support for the Project and
¦ sees great potential for this Project to "bring in new companies... new innovative
firms, places that need engineers ...lawyers, accountants, maybe an economist or
two. " Such an outcome would provide local young adults with an opportunity to
live and work in New Bedford and not have to leave for other jobs in other cities.
EPA Response:
EPA thanks Mr. Bowen for his comment supporting the Project and refers to the response
to General Comment No. 4 above regarding jobs.
3. Lauren Costello, a recent graduate from University of Massachusetts, Amherst,
voiced her support for the Project because of the economic benefits it provides for
the area andfor its support for alternative energy. She also noted the potential to
create "pertinent and progressive "jobs for recent college graduates.
EPA Response:
EPA thanks Ms. Costello for her comment supporting the Project and refers to the
response to General Comment No. 4 above regarding jobs.
4. Tom Kennedy, former New Bedford City Councilor, voiced his support for the
. Project and for the offshore wind industry. He also commented that he is pleased
with the size of the shellfish restoration plan being required by EPA.
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EPA Response:
EPA thanks Mr. Kennedy for his comment in support of the Project and agrees that the
shellfish restoration plan required by EPA is necessary to ensure adequate mitigation for .
the impacted resource.
5. Former Mayor Scott Lang voiced his support for the Project and the importance
of the Project to waterfront development as it moves into the 21st century. He
commented on the potential it brings for significant jobs that come with not only
the offshore wind industry but with the future cargo shipping use of this deep
water facility. He also commented that every environmental issue will be
addressed, and that this is not the time to fight about CAD cells; that "Right
now... the way to resolve contaminants that would not have been moved is through
a CAD cell system that everyone can agree on and then we "11 worry about where
we go from there. "
EPA Response:
EPA thanks former Mayor Lang for his comment in support of the Project and for his
support for the use of a CAD cell to contain navigationally dredged sediment.
6. Joseph Jo Jo Fortes, former New Bedford City Councilman, voiced his support
for the Project, but commented on the location of the meeting, stating that it
should have been held in a location closer to the South Terminal construction site
given the transportation challenges to get to the meeting location because it is
important to hear the concerns of those most impacted. He also commented that
he is pleased the sediment and upland area contamination will be addressed and
that remediation, along with the South Terminal Project, will bring people back to
the neighborhood. He looks to EPA to protect the community and he spoke of his
desire that the local community gets its share of the jobs created by the Project.
EPA Response:
EPA thanks Mr. Fortes for this comment in support of the Project and refers to the
responses to the General Comments about the environmental and human health benefits
of the Project. The Commonwealth and EPA chose to hold the informational meeting
and public hearing at the Fort Taber Community Center because of its proximity to the
area that will sustain the most impacts from construction and use of the South Terminal
Project. The Community Center was also chosen because it provided a large enough
venue to accommodate the high turnout of interested members of the community and is
located in the southern part of the City. For those unable to attend the meeting, a 30 day
public comment period provided an alternate method of providing comment on the
Project.
J '
7. Chuck Dade commented orally and in writing that he could only support the
Project if the PCB-contaminated dredged material is removed from the harbor.
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New Bedford Harbor State Enhanced Remedy.
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not buried in a CAD cell. He commented that it is EPA '$ responsibility to ensure
the Project is for the public good and for the public will and that the use of a CAD
cell for this Project is against that mission, results in an incomplete remediation
and makes remediation of the material contained in the CAD impossible to treat
by biological or other techniques.
He also commented that A VX, a responsible party for the Harbor contamination,
and if not AVX then the federal government, should provide funding for offsite
disposal of the navigational dredged contaminated sediment so that the South
Terminal project can move forward and bring ocean commerce and the offshore
wind industry to the area. •
EPA Response;
EPA thanks Mr. Dade for his comment,, EPA disagrees that the use of a CAD cell for this
Project is against EPA's mission to protect human health and the environment and
believes that CAD cells provide a safe, and permanent disposal alternative which will
isolate contaminated sediment and prevent exposure to the public and the environment,
See responses to General Comment Nos. 1 and 2 about its mission to ensure protection of
human health and the environment and No. 3 about the safety of CAD cells.
As set out in both the Draft and Final Determinations, the State Enhanced Remedy work
is funded by the Commonwealth of Massachusetts, not the federal government. As
clearly stated in EPA's Record of Decision, the Superfund program will not be responsible
for funding any part of the enhanced remedy consistent with 40 CFR 300.515(f)(!)(ii)(A).
The responsible parties are responsible for the Superfund cleanup costs, which in the
lower harbor address PCBs greater than 50 ppm.
8. Frank Haggerty raised a question about land transfers for the Project,
particularly transfer of Br-ownfield properties that occurred after the start of the
public comment period and whether EPA should wait, until all the land involved in'
¦ the project was transferred or purchased prior to holding a public comment
period. His comments reflect a particular concern about inclusion of
contaminated property in the Project; specifically, a portion of the Standard .
Times Field site and the underground fuel tanks, asbestos and coal tar residue at
that site as well as the former Cannon Street Power Plant site and its proximity to
South Terminal. • „
EPA Response:
On August 2, 2012, Governor Patrick signed legislation approving the transfer of 3.4
acres of land adjacent to Blackmer Street in the South Terminal project area of New
Bedford from the Commonwealth of Massachusetts to the City of New Bedford. In
exchange, the City of New Bedford conveyed property on Rodney French Boulevard to
the Massachusetts Department of Fish and Game. The approval to transfer the Blackmer
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Street property was for the purpose of developing the South Terminal project. (See
Attachment B, Reference Documents Nos. 1 through 6.)
EPA does not believe there was any need to wait until the Commonwealth purchased or
obtained easements on all the parcels within the Project area before seeking public
comment on the Draft Determination. The properties proposed to be within the Project
area, including the Blackmer Street property, were identified in the maps delineating the
scope of the South Terminal Project at the commencement of the comment period. Thus,
the public was able to comment on the Project and its environmental impacts with respect
to any of the parcels, irrespective of who'owned the parcels. The Commonwealth has''
been in a lengthy process of acquiring ownership or control over various parcels. We do
not believe that waiting until property transfers or purchases were completed before
issuing the Draft Determination would have provided any additional relevant information
for purposes of the public's ability to comment on the project.
With regard to the underground fuel tanks and hydrocarbons, EPA assumes the
commenter is referring to a 150,000 gallon fuel tank and hydrocarbons mentioned in the
Phase I Environmental Site Assessment Report prepared by the TRC environmental
consulting firm for the City of New Bedford. That report addresses Former Standard
Times Fields Lot 9G, which is to the west of both the Blackmer Street "swapped"
property and the site of the South Terminal Project. Because this property is not included
in the Project, a response to the comment is beyond the scope of this document. (See
Attachment B, Reference Document No. 7, page 8.)
On a general note regarding remediation of contamination on the eleven acre upland area
of the main portion of the South Terminal Project, including the property adjacent to
Blackmer Street, the Commonwealth of Massachusetts has committed to conduct a .
remediation under the Massachusetts Contingency Plan. In addition, soils with elevated
concentrations of PCBs will be addressed in a manner consistent with the federal Toxic
Substances Control Act. As a result of these and other remediation activities, the upland
area of the main terminal will achieve a level of "No Significant Risk' under the
Massachusetts Contingency Plan.
D. Comments from Trade.Unions:
i, Ironworkers — Local 37, Greater Southeastern MA Central Labor Council,
¦ Bricklayers Union, International Longshoremen's Association, New England
Carpenters Union, Boston and New England Maritime Trades Council, AFL-
CIO; International Union of Operating Engineers - Local 4 'expressed
unanimous support for the Project, noting the potential for jobs and revitalization
of the New Bedford waterfront and the surrounding communities. They urged
EPA to move forward with its decision-making, not only for the economic benefits
to be realized from the Project, but also from the cleanup of existing
contamination that will result in a more healthy community. Some unions also
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New Bedford Harbor State Enhanced Remedy
Appendix Q
commented on their willingness to create apprenticeship programs to train
talented local workers. '
EPA Response:
EPA appreciates the strong support for the Project from the many union representatives^
We also agree that the Project provides an' additional measure of protection for human
health and the environment through the dredging of contaminated sediment that would
not otherwise be dredged since it is below EPA's Superfund dredging cleanup levels.
We note also the unions' recognition of the local talent this area offers as well as their, .
willingness to provide apprenticeships to train more workers in various trades as a way of
retaining young men and women living locally. While EPA cannot direct hiring, we
acknowledge the unions' very, important role in providing jobs for this Project. See also
response to General Comment No. 5 about jobs. ,
EPA also recognizes the potential for jobs and revitalization of the New Bedford
waterfront and acknowledges the need to move this Project to completion. It is, however,
important to ensure the Project balances those needs against the need to protect the
aquatic resources, to provide adequate mitigation for those resources that are impacted
and to protect human health and other environmental resources. We heard the unions'
recognition of this need for balance.as well and are grateful for their patience and
support. After reviewing all the information provided by the Commonwealth, we have
found that this Project meets all of these requirements. See also response to General
Comment No. 2.
E. Business Advocacy Groups. .
i; ' Anthony Sapienza, Chairperson, New Bedford Economic Development Council,
commented that the Council and its Board of Directors endorse the Project and
that it is important to the economic development strategy for the City.
EPA Response:
EPA thanks the New Bedford Economic Development Council for its comment in
support of this Project.
2. New Bedford Harbor Development Commission (Ed Washburn) voiced its support
for the Project and commented on the additional benefits the marine terminal ,
offers the port of New Bedford for future cargo opportunities, the associatedjobs
that come with those shipping activities and the economic boost it provides to the
area.
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EPA Response: •
EPA thanks the New Bedford Harbor Development Commission for its comment in
support of this Project.
F. Comments from Non-Profit, Religious, and Academic Institutions
1. Hands Across the River (Ed Rivera) commented orally and in writing that it
could only support the project if the PCB contaminated dredged material is
removed from the harbor, not buried in a CAD cell and that there are other
ways of getting rid of PCBs, including the use of the dew ateringfacility. It
commented that it is EPA's responsibility to ensure the project is for the
, public good and for the public will and that the use of a CAD cell for this
project is against that mission, results in an incomplete remediation and
makes remediation of the material contained in the CAD impossible to treat
¦ by biological or other techniques'.
¦ HARC stated that it wants the Project and the green jobs it brings but it wants
it done right so that 50 or 60 years from now if it turns out the CAD
technology is not sound the community doesn't have to revisited addressing
PCBs again, ft commented.that there are a lot of big companies interested in
New Bedford and they should invest in the right way of addressing the
contamination:
EPA Response:
EPA thanks HARC for its comment. EPA disagrees that the use of a CAD cell for this
Project is against EPA's mission to protect human health and the environment and
believes that CAD cells are safe. See responses to General Comment Nos. 1 and 2 about
its mission to ensure protection of human health and the environment and No. 3 about the
safety of CAD cells. ;
2, John G. Buddy Andrade, Old Bedford Village Development Corporation,
voiced his support for the Project and sees it as a catalyst for producing long-
, term employment both from the wind industry andfrom the future shipping
activities at the terminal. He wants to make sure that local high school
graduates, college students and recent college graduates benefit from the
Project; that jobs should not go only to big companies and union workers but
that the various unions create training programs and apprenticeships for the
local workforce. He commented that "there are still a lot of issues of
discrimination and exclusion and EPA has played a big role in that and so has
the state. " He also commented that this is the first time [EPA and the State]
had an open hearing and that stakeholders don't get invited to these kinds of
public hearings. He commented thai there should be greater inclusion in all
processes so that there is a level playing field so that those most impacted by
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New Bedford Harbor State Enhanced Remedy
Appendix Q
the Project are also realizing the benefits of the Project. He also commented,
"This meeting should have been held in the community, downtown in the
neighborhoods where more of us would have been there. The bus stops at six
o 'clock, so there's no public transportation. " Finally, he commented that
agent orange (dioxin) is in PCBs and that "it wasn 't part of the original raw
decision to have CAD cells. "
EPA Response: ,
EPA thanks Mr. Andrade'for this comment supporting the Project and for his positive
view on the public comment period associated with this Project. As part of its Draft
Determination, EPA directed the Commonwealth to generate a Construction Management
Plan which will, at a minimum, outline the process by which the Commonwealth will
communicate with the community regarding the work associated with this Project,
including holding public meetings to discuss the project. EPA disagrees with the
comment.concerning EPA's role in any discriminatory or exclusionary issues or that
stakeholders aren't invited to public hearings and points to the myriad public meetings,
public hearings, email and newspaper notices, as well as the fact sheets, technical
documents and cleanup decision documents posted on EPA's website for New Bedford '
Harbor (www, epa. eov/nbh). With regard to the meeting locations, see response to
Comment C.6 above.
Agent Orange is not a PCB. It is an herbicide that is a 50-50 mixture of two compounds
known as 2,4,5-T and 2,4-D, . •
Finally, EPA refers to the response to General Comment No. 5 regarding jobs.
3. Environmental League of Massachusetts (Ken Pruin) voiced its support for
the Project andfor the wind industry. It commented on the importance of the
Project in that it removes contaminated sediment that would not be addressed
by the Superfund cleanup. "It's debated over whether it's the gold standard
for cleanup, but at least it's a cleanup. It's better than nothing. "
EPA Response:
EPA thanks the Environmental League of Massachusetts for its support of the Project and
its acknowledgement that addressing contaminated sediment which would not be
included in the Harbor Superfund cleanup is an important benefit of the Project. See also
response to General Comment No. 4 above about'the additional protectiveness afforded
by addressing this sediment.
• 4. Buzzards Bay Coalition (Mark Rasmussen) orally expressed its support for the
Project, recognizing¦ the environmental benefits of addressing contaminated
sediment that is below the Superfund cleanup levels for the Harbor, the
upland remediation that will be performed by the State through the state
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New Bedford Harbor State Enhanced Remedy '
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cleanup program, and the additional capping that will occur just below the
hurricane barrier in the pilot cap area as part of the mitigation plan.
¦ With regard to the CAD cell; noting the low levels of contaminated sediment
to be contained in the CAD cell, the Coalition commented, "For this use and
this location, I think this can be done in an environmentally protective way to
manage this material at this site for the South Terminal Project. "
EPA Response:
EPA thanks Buzzard's Bay Coalition for its comment in support of the Project and for its
support of the use of a CAD cell to contain dredged sediment with low levels of PCB
contamination. EPA refers to its response to General Comment No,.3 above for more
information concerning the safety of CAD cells.
, EPA agrees that the Project offers many environmental and human health benefits from
addressing both low level sediment contamination and upland contamination that would
otherwise not be addressed or which might be addressed at some future date in the case of
the upland areas. The added capping for habitat improvement below the hurricane barrier
will address PCB-contaminated sediment in two locations that are generally at or
below 10 ppm. The mitigation plan includes a number of other measures including
creation of a salt marsh at River's End Park, creation of 22.73 acres of winter flounder
spawning habitat, and significant shellfish restoration.
5. Sierra Club (Drew Grande) voiced its support for the South Terminal Project
and for clean energy and the jobs that come along with the clean energy
development. It commented that it had concerns about the harbor cleanup,
and that it was important to make sure that "as this project moves forward
we 're also cleaning up the river to the extent that it is acceptable to the
families and residents of New Bedford and is done in such a way that it
doesn 't put future'generations at risk and it's also done in such a way that it
complies with all aspects of the clean air and,clean water act. "
EPA Response:
EPA thanks the Sierra Club for its comment in support of the Project. EPA points to the
robust administrative record to support its determination that the Project is protective of
human health and the environment, is a permanent solution and meets all substantive
environmental laws, including the Clean Air and Clean Water Acts.
6. University of Massachusetts, Dartmouth. Assistant Chancellor for Economic
Development Paul Vigeant expressed his support for the Project, both orally
and in writing, commenting that EPA conducted a careful analysis of the
Project and agrees with EPA's conclusion that the Project is protective, meets
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EPA Final Determination for the South Terminal Project Appendix Q
New Bedford Harbor. State Enhanced Remedy " '
ARARS and will have no adverse impacts. He notes the untapped supply of
sustainable and renewable wind, wave and tidal energy just 30-40 miles
offshore from the location of the proposed South Terminal and that modern
. industrial port facilities are an essential ingredient and absolute prerequisite
for accessing those; offshore energy resources. The project'will create a
wide range of jobs, including long-term jobs that will be attractive to local
young adults, and reposition the region as a major deployment site within the
ocean renewable energy marketplace.
EPA Response:
EPA thanks the Assistant Chancellor for his comment in support of the Project.
7. Reverend David Lima, Executive Minister, Church Council of Greater New
Bedford, voiced his support for the Project and commented that this Project is
about restoring the sprit back to the community; to bring future and hope
back to the City. He also noted the benefit of removing contaminated
sediment in the Harbor that would not otherwise be addressed by the
- Super fund cleanup.
EPA Response:
EPA thanks Reverend Lima for his comment in support of the Project.
8. Marion Institute voiced its support for the Project and urged EPA "to take a
step in the right direction by bringing renewable green energy to New ¦
Bedford. " It commented that "It just makes sense for the Marion Institute to
support the construction of wind turbines in our region. " It goes on to say,
" Wind turbines are the next step in curbing our energy consumption, creating
jobs, and caring for our communities. While not a perfect system, we know
that doing nothing is simply not on option at this juncture. We hope that the
officials will take the necessary steps to bring New Bedford to the pinnacle of
clean energy and green job creation in the nation. "
EPA Response:
EPA thanks Marion Institute for its comment in support of this Project.
9. Clean Water Action (Joel Wool) orally commented on the Project 's benefit of
removing contaminated sediment that would not otherwise be addressed. He
also commented, "Clean Water Action is a strong supporter of renewable
energy generation and offshore wind, and applauds EPA for encouraging
clean energy within the Commonwealth of Massachusetts. Nevertheless, it is
unclear if the viability of remediation of the polluted harbor should be
determined under the basis of supporting offshore wind. " He also asked to see
a number of things:
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New Bedford Harbor State Enhanced Remedy
Appendix Q
' A "... detailed breakdown of alternatives to on-site burial that details specific
cost estimates and a rationale for viability or unviability of these'alternatives"
• similar to the alternative analysis EPA conducted in Appendix E to the Draft
Determination and"... if a cleaner method of disposal is possible, it seems
reasonable to investigate the possibility of doing so and investigating funding
sources for achieving this. If such an analysis has already taken place, please
indicate where and how it has taken shape
EPA Response:
The detailed breakdown requested in the comment was conducted by the Commonwealth
during the Commonwealth's own Dredge Materials Management Planning process, a
public process that took place between 1999 and 2003. During that process, multiple
different methodologies for dredging and disposing of contaminated sediment were
considered. The results of that study determined that CAD cell technology is a viable and
safe method for containment and isolation of contaminated sediment, and is considerably
less expensive than other alternatives, such as incineration or offsite transportation and
disposal.
. EPA directs the responder to refer to these documents for the in-depth analysis of
alternatives to the use of CAD Cells, on which the Commonwealth based its decision, as
well as the conclusions reached in the previous investigations of the available disposal
alternatives. For the detailed analysis of disposal alternatives for unsuitable dredge
material (UDM), (that is, navigational dredge material unsuitable for unconflned ocean
disposal) presented in the 2002 New Bedford/Fairhaven Harbor Dredged Material
Management Plan (DMMP) Draft Environmental Impact Report (DEIR) please go to the
Massachusetts Coastal Zone Management website at this specific link:
- 'http://www.mass.gov/czm/nb dmmp deir.htm. Technical reports prepared for this DEIR
may also be found at this site. After public comments were received on the DEIR, the
New Bedford/Fairhaven Harbor Dredged Material Management Plan (DMMP) Final
Environmental Impact Report (FEIR) was issued in 2003 which includes responses to
comments on the DEIR and provides additional site information. To view this report,
¦please go to: www.mass.eov/czm/dredeereports/2003/feimb-f.htm.
10. "We are concerned that the proposed remedy is not, in fact, fully tested to
succeed. Personal correspondence with EPA staff suggests that - although the
specific schematic design for the CAD cell is ongoing, similar projects have
taken place in the United States and, thus far, have proven safe and protective
of community health. CWA would like to see a clear comparison of the
proposed CAD cell burial process with other projects with same or similar
processes. CWA's initial dialogue with EPA suggests that certain Boston
Harbor and/or West Coast projects may resemble this specific process. Please
confirm this and provide clear examples, or provide a more detailed
justification of how... this process can be affirmed as safe and healthy. " -
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New Bedford Harbor State Enhanced Remedy
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EPA Response;
CAD cells have been utilized for disposal of UDM since the 1980s and now have a
proven decades-long track record of safely containing contaminated sediment. CAD
cell technology is a recognized, protective contaminated sediment disposal approach that
is being used more and more frequently in the U.S. and around the world, especially for
navigational dredged material that is unsuitable for open water disposal. CAD cells have
been used in recent years for navigational dredging in major New England ports such as
Boston, New Bedford and Providence, and have also been used (or selected for use) at
contaminated sediment Superfund sites in Washington, Minnesota and Maine (EPA,
2010). Most of these harbor cities typically go through the same evaluation process
that was performed for New Bedford Harbor; that is, designating a Dredge Material
Management Plan (DMMP) Area for CAD cell disposal. A partial list of
cities/harbors utilizing CAD cells include;
Boston Harbor
Providence Harbor
Hyannis, MA
Bridgeport, CT
New London, CT
Norwalk, CT '
Newark, NJ
Baltimore, MD
Commencement Bay, WA (Superfund Site)
St. Louis River, MX (Superfund Site).
Callahan Mine Site, ME (Superfund Site)
Port of Hueneme, CA
Since 1993, EPA has had a long term ecological monitoring program in place to
evaluate the effects of remedial activities on the overall ecological quality of New
Bedford Harbor. This monitoring program has shown that significant improvement in
lower harbor benthic quality has taken place over the approximate ten year period when
three navigational CAD cells have been constructed and filled in the lower harbor.
Environmental metrics for the lower harbor (surficiai PCB levels, biodiversity, EMAP
benthic index) indicate significant improvement in the ecological quality of the lower
harbor benthic environment over this timeframe (Nelson and Bergen, 2011). See also the
April 2010 monthly meeting presentation
(http://www.epa.gov/regionl/superflind/sites/newbedford/299752.pdf) and slides 26-28
of the June 2010 monthly meeting presentation
(http://www.epa.gov/regionl/superftind/sites/newbedford/299754.pdf) for more detail on
these data.
G. Comments from Federal and State Entities
1. National Oceanic and Atmospheric Administration (National Marine Fisheries
$ervlce (NMFS) commented on the following issues:.
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New Bedford Harbor State Enhanced Remedy
Appendix Q
NMFS note the Project would result in permanent loss of 6.85 acres of
intertidal and shallow subtidal habitats from CDF construction; permanent
loss of 20.21 acres of winter flounder spawning and nursery habitat due to
dredging, and loss of almost 10 million shellfish. In its role as a consulting
federal agency through the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) and the Fish and Wildlife Coordination Act, NMFS
made the following recommendations in its comment letter:
a. In order to minimize impacts of the projects on shallow sub-tidal
habitat to the maximum extent practicable, while meeting the purpose
and need of the project, the proposed additional work consisting of
increasing the width of the approach channel by 50 feet,. increasing the
length of the deep draft dredging area by up to 300feet, and expanding
CAD cell 3 to accommodate the extra material, should be eliminated. .
NMFS noted that neither the Draft Determination nor the
Commonwealth's June 18, 2012 submittal explains why this work is
necessary to meet the purpose and need of the proposed project, and that
although the m it igation areas include the impacts from this additional
work, the impacts of the project have not been minimized to the maximum
extent practicable.
EPA Response: -
With Regard to Expansion of the Deep-Draft Berthing Area: The Commonwealth
proposed, in its January 18, 2012 submission, to excavate 600 feet of deep-draft area at
the bulkhead to accommodate a maximum vessel length of approximately 500 feet. This
600 foot length of deep-draft area had been increased from a prior proposal of 500 feet.
The vessels described in the submission that were expected to be used to support
development of an offshore wind energy facility ranged in length up to approximately
490 feet.'
In its June 18, 2012 submission, the Commonwealth described an additional amount of
dredging that it wanted to include as part of the project at the request of the City of New
Bedford, to accommodate the City's desire to expand the deep draft quay-side dredge
area beyond the proposed 600 feet, to include an additional 200 feet to the north, or 100
feet to the south, or both, resulting in additional impact of 1.28 acres and 0.62 acres,
respectively, and a combined total of 1.9 acres. At the same time, the Commonwealth
stated that it did not anticipate obtaining sufficient funding to do the additional dredging
but that the City was pursuing independent funding. (In a May 31,2012 meeting with
EPA, the Commonwealth mentioned its intent to request this additional dredging and
indicated that this additional dredging reflected the City's hope to bring in larger vessels
involved in short sea shipping operations.) Notwithstanding the City's desired expansion,
the June 18, 2012 submission states that the design cargo vessel for the terminal is the
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New Bedford Harbor State Enhanced Remedy
Appendix Q
¦ BBC Mississippi,-and-references Attachment T, That attachment states that the length of
the BBC Mississippi is 143 meters, which equals 469.16 feet.
In its October 22, 2012 "Essential Fish Habitat Addendum" (MassDEP2012jy, the
Commonwealth provided a response to NMFS's conservation recommendation that this
additional dredging be eliminated. It referred to a meeting with the Northeast Marine
Pilots Association ("Pilots"), in which the Pilots "stated that the largest vessel they
anticipated to dock at the new terminal facility is approximately 600 feet in length with a
beam width of 90 feet." (See page 2.) However, the referenced Pilots' meeting occurred
on February 11, 2011, so this statement was made well before the January 18, 2012
submission, as was-the report on short.sea shipping (MassDEP 2012, Appendix 23), but
neither resulted in a'proposal for a 700-900 foot deep-draft dredge length. It is clear from
the meeting minutes that the pilots were referring to future, cargo vessels (MassDEP
2012, Appendix 15). And indeed, in the October 22, 2012 submission, the
Commonwealth states that "[T]he purpose of the expansion is to provide adequate deep
draft area for large shipping vessels that are expected to utilize the terminal in the future."
(MassDEP 2012j at 2.) Nevertheless, as noted above, the design cargo vessel for the
terminal is 469 feet in length. ,
In the October 22, 2012 submission, the Commonwealth stated that "design standards"
typically call for at least a 50 foot buffer on either end of the vessel for navigation and -
safety and that "guidance documents" recommend as much as 100 feet on either end. At
most these would support an expansion to either 700 or 800 feet to accommodate a 600
foot long vessel, whereas the Commonwealth seeks approval to expand up to 900 feet.
Even assuming a 600 foot vessel, the record would not support an expansion up to 900
feet.
The Commonwealth provided additional information on November 8, 2012, including an
excerpt of the design standards referenced above and size details for a variety of vessels
that potentially could use the port in the future. (MassDEP 2012p)
Based on the currently available information, EPA does not believe that additional deep-
draft dredging at the quay-side area has been adequately justified. First, both the
expected international vessels to support development of the initial offshore wind energy
facility and the design cargo vessel are less than 500 feet in length. It is not evident that
use of the terminal by 600 or 700 foot cargo vessels is likely to occur in the foreseeable
future. In addition, the Commonwealth indicated in the June 18, 2012 submission that it
did not expect to have funding to do the additional dredging, and it did not indicate
anything to the contrary in the October 22 and November 8 submissions.
We recognize that in the future, facts may change that could justify additional dredging.
We are also mindful of segmentation concerns. Accordingly, while we are not
authorizing the additional dredging at this time, we will allow the Commonwealth, up to
the date the State Enhanced Remedy work ends, to seek a modification of this final
determination if additional information becomes available that would justify the need for
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New Bedford Harbor State Enhanced Remedy
Appendix Q
additional deep draft quay-side dredging. To avoid segmentation concerns, we have
evaluated the impacts of the Project both without and with the additional dredging. The
additional impacts associated with the expansion would not alter EPA's determination
that, if properly mitigated, the impacts from the overall Project will not cause or
contribute to significant degradation of waters of the U.S.
With Regard to Expansion of the Channel Dredging: In its January 18, 2012 submission,
the Commonwealth changed the alignment of the navigational channel compared to its
original proposal, increased the width of the navigational channel from 150 feet to 175
feet, and added a 100 foot tug channel, all in response to feedback in February 2011 from
the Northeast Marine Pilots Association and New Bedford Harbor tug operators. In its.
June 18, 2012 submission, the Commonwealth proposed to add an additional 50 feet of
width to the navigational channel based on its statement that "it is possible that the
channel may need to be further expanded if a future vessel's dimensions vary
significantly from what is currently anticipated." (MassDEP 2012a at 4.) The
Commonwealth stated that the additional 50 foot width "is not currently contemplated for
construction," but it was being included as a worst case scenario of impacts "assuming
that the channel width may be expanded in the future to accommodate larger vessels than
are currently envisioned." Id. at 5. It also discussed existing harbor use, environmental,
and financial factors that limit expansion. Id. at 36-37. This additional dredging would
affect 2.72 acres of shallow near-shore waters, and an additional 1.74 acres within the
Federal Channel, for a total of 4.46 acres.
In its October 22, 2012 "Essential Fish Habitat Addendum" (MassDEP2012j/, the
Commonwealth provided a response to NMFS's conservation recommendation that this
additional dredging be eliminated. The Commonwealth stated that it "may" become
necessary in the future to widen the channel to 225 feet for safety and maneuverability to
facilitate offshore energy development or future cargo operations at the terminal.
However, the Commonwealth also stated that "due to existing harbor use limitations,
environmental impact limitations, and financial limitations outlined in the June 18, 2012
submission ... only the current 175 foot channel is currently anticipated to be constructed
by the Commonwealth at this time." (See page 1). Nonetheless, the Commonwealth
renewed its request for approval of the additional dredging in order to avoid segmentation
concerns. Id.
The Pilots' meeting referenced in the Commonwealth's October 22, 2012 submission
occurred on February 11, 2011, and the Commonwealth responded to the Pilot's request
for channel widening by expanding the proposed channel from 150 feet to 175 feet in its
January 18, 2012 submission. The Pilots indicated that 200 feet would be better but did
not state that 175 feet was unworkable. (MassDEP 2012, Appendix 15.) At a February
18, 2011 meeting, the tug operators "stated that they would like as much channel width as
possible, but generally agreed that the adjusted footprint [to 175 feet] could work with the
facility." (MassDEP 2012, Appendix 16.) The June 18, 2012 and October 22, 2012
submissions do not provide any new information about the likelihood that widening
beyond 175 feet would be necessary. It is significant that in both the June 18 and
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New Bedford Harbor State Enhanced Remedy
Appendix Q
October 22 submissions, as well as in its June 29, 2012 submission (MassDEP 2012b),
the Commonwealth is clear that it does not currently expect to do the additional dredging
associated with widening the channel beyond 175 feet. ,
In its November 8, 2012 submission, the Commonwealth explained that many of the
cargo vessels that may access the terminal in the future have a deeper draft than the
design vessel. They would need a wider channel because of the trench design of the
channel. Although the existence of deeper draft vessels was clearly documented, the
November 8 submission only goes so far as to state that "the use of such vessels may
require widening of the channel to be able to safely transit the vessels..(emphasis
added) (MassDEP 2012p at 5). The Commonwealth does not state any intention of
conducting the expanded channel dredging in the immediate future.
Based on all of the available information, EPA does not believe that additional dredging
to widen the channel beyond 175 feet has been adequately justified to support approval at
this time.' The Commonwealth does not currently intend to conduct the additional
dredging, and it is not clear'whether, if at all, it will become necessary. At the same time,
we recognize that in the future, facts may change that could justify additional dredging.
We are also mindful of segmentation concerns. Accordingly, while we are not -
authorizing the additional dredging at this time, we will allow the Commonwealth, up to
the date the State Enhanced Remedy work ends (see footnote l), to seek a modification of
. this final determination if additional information becomes available that would justify the
need for additional dredging to widen the navigational channel beyond 175 feet. To avoid
segmentation concerns, we have evaluated the impacts of the project both without and
with the additional channel dredging. The additional impacts associated with the
expansion would not alter EPA's determination that, if properly mitigated, the impacts
from the overall project will not cause or contribute to significant degradation of waters
of the U.S.
The Commonwealth's June 18 submission proposed creation of additional winter
flounder spawning habitat and subtidal habitat to address impacts from the expanded
dredging. Even though EPA is not at present approving additional deep-draft quay-side
and expanded channel dredging, it is important for all of the habitat creation and
enhancement work to be conducted at the same time, to avoid adverse impacts that could
result from creating some habitat initially and then doing additional work at the same
areas at a future date.
With respect to shellfish mitigation, the Commonwealth has proposed that it conduct the
shellfish seeding in phases, so that if certain aspects of the project are not completed, the
number of shellfish seed will be reduced accordingly. It is acceptable for the
Commonwealth to reduce the amount of shellfish seed by the amount proportional to the
area of expanded dredging that is not being approved at this time. The shellfish seeding
will occur in multiple geographically separated areas over 10-15 years. Therefore, in
contrast with the habitat mitigation, the shellfish seeding effort would not be adversely
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New Bedford Harbor State Enhanced Remedy
Appendix Q
affected by reducing the amount of seed to be planted now, and increasing it later if the
expanded dredging is approved in the future.
Finally, the Commonwealth's June IB, 2012 submission included dredging for an 8.76
acre CAD cell, sized to accommodate disposal of excavated material associated with the
additional dredging discussed above. Given that EPA is not approving the additional
dredging, it is similarly not approving the additional CAD cell excavation. Therefore, the
size of the CAD cell authorized under EPA's Final Determination is 8.54 acres. As '
discussed above, the Commonwealth may seek a modification of this final determination
if additional information becomes available that would justify the need for additional .
channel and quayside dredging, and it may also seek approval for disposal of the
additional channel and quayside dredging. A workplan for the dredging and disposal of
this material will be required and an additional or modified TSCA Determination may be
necessary. We have evaluated the impacts of the Project both with and without the larger
CAD cell construction, and the additional temporary impacts from the larger CAD cell
would not alter EPA's determination that, if properly mitigated, the impacts from the
overall project will not cause or contribute to significant degradation of waters of the U.S.
b. In order to reduce impacts of fill on sub-tidal habitat, the concrete
blanket proposed for the pile supported apron adjacent to the wharf
should he reduced to the maximum extent possible. NMFS further
commented that the construction plans for this area be clarified,
including how much area will be filled with rip rap, why it is necessary,
and whether rip rap will only be necessary at the pile supported area or
also along the 1,200 linear feet of bulkhead (and if so, why it is necessary
and if necessary, should also be included in project impacts.
EPA Response;
The Commonwealth has submitted additional information in its "Essential Fish Habitat
Assessment Addendum, New Bedford Harbor Marine Commerce Terminal", prepared by
Land Use Ecological Services, Inc. which addresses this comment. (MassDEP2012j).
The purpose of the concrete blanket is to prevent erosion of the area under the pile-
supported apron, and it has been minimized to the extent feasible while preserving the ¦
structural integrity of the facility. The Commonwealth noted that the material used to
construct the concrete blanket is very expensive, so there is a financial incentive to keep
it as small as possible. The pile-supported apron was a change from the
Commonwealth's original proposal, which would have included an additional 0.67 acres
of solid fill at the CDF. The apron design reduces the amount of fill, but it is still
necessary to partially fill at the base of the apron for structural integrity. The concrete
blanket will only be necessary under the pile-supported apron, not along the entire length
of the bulkhead. EPA believes that the Commonwealth has minimized the area of the
concrete blanket to the greatest extent practicable. •
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c. In order to avoid adverse effects to winter flounder spawning and early
life stages in New Bedford Harbor, in-water silt producing activity,
* including blasting, should be avoided between January 15 and May 31 of
any year.
EPA Response:' EPA's Final Determination does not allow for blasting to occur. As
part of the normal Essential Fish Habitat consultation process, the Commonwealth, the
National Marine Fisheries Service and EPA met on several occasions to devise an
approach that would allow dredging to occur during the winter flounder spawning season,
but would minimize impacts to the extent possible.
In the interest of minimizing impacts to winter flounder spawning, the Commonwealth
has committed to implementing the following measures, which EPA is requiring as
conditions of the Final Determination:
• The use of the environmental bucket for the dredging of fine grained
¦ material,
• Cordoning off the entire depth-relevant (16 feet and shallower) area
of the Project from January 15 to June 15 with a combination of silt
and bubble curtains and fish weirs. This is intended to prevent winter
flounder from accessing these areas for spawning.
• Once the area is cordoned off and before construction begins, the
Commonwealth will attempt to remove winter flounder and other fish
from the area by using two different fish "startle" deterrent systems.
The first system is an acoustic system that is primarily effective on
schooling pelagic fish. The second system is a "tactile fish startle
system", which targets benthic demersal fish, such as winter flounder.
The tactile fish startle system will utilize a towed floating boom with
a curtain of streamers that reach from the surface to the bottom.
• The Commonwealth will conduct weekly camera and diving
inspections to ensure the continued integrity of the bubble and silt
curtains and weirs.
• The Commonwealth will conduct weekly monitoring of the enclosed
area for the presence of fish. This monitoring will include, but may
not be limited to a towed camera system and an acoustic fish
detection system.. If a large number of fish are determined to be in the
area, the fish startle systems will be deployed again to move them out.
d. In order to compensate for the loss of shellfish resources at the project
area, a shellfish mitigation plan should include compensation of all ¦
shellfish species found at the project site. This.would include expanding
, the proposed reseeding of quahog clams to include other species
indentified in the shellfish survey.
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New Bedford Harbor State Enhanced Remedy
Appendix Q
EPA Response:
The Commonwealth's Final Mitigation Plan (MassDEP2012r) provides for seeding of
24,542,802' seed quahogs. It also indicates that some portion of the seed will be oyster
stock, seeded in association with an oyster reef, as requested by NMFS, However, the
Commonwealth has not submitted an oyster restoration plan for'EPA to review and.
approve for this Final Determination, The Commonwealth has indicated that it plans to
convene a working group of technical staff from Massachusetts Division of Marine
Fisheries (MassDMF), NMFS and EPA to develop the details of an oyster restoration
plan. In its Final Determination, EPA is approving shellfish restoration based on all seed
being quahogs. Once a final oyster reef plan is developed, the Commonwealth may
submit it to EPA with a request to' modify the Final Determination to incorporate the plan
as a mitigation condition.
e; With regard to mitigation and monitoring:
• Prior to final approval, all mitigation plans and monitoring
reports should be provided to the resource agencies for review
and comment.
• Creating winter flounder habitat is experimental It is critical that
the proposed mitigation to create 22.73 acres of winter flounder
spawning habitat is monitored closely to ensure this area is
functioning properly. NMFS supports EPA 's conditions for 5
years ofbathymetric and habitat functions monitoring but also
recommends a contingency plan be incorporated that specifies
corrective action to be taken should the ecological goals of the
¦ mitigation sites not be achieved.
• x It is not clear if monitoring to be conducted of intertidal and sub-
' tidal habitat will include monitoring to determine whether or not
the ecological goals of this mitigation site are achieved.
• Regarding shellfish mitigation, the Draft Determination does not
indicate whether or not monitoring of the reseeded sites would be
required and why seeding will only occur for quahogs and not the
other shellfish species that will be impacted by the project. .
EPA Response:
EPA has provided copies of the Commonwealth's mitigation and monitoring plans to
NMFS and US FWS for review and-comment. To the greatest extent possible, EPA and
the Commonwealth have incorporated and responded to NMFS's comments.
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NMFS, EPA and the Commonwealth were all involved in the conceptual design of the
winter flounder habitat mitigation plan. All agencies are hopeful that the mitigation site
will support a comparable or greater level of winter flounder spawning than the Project
site. There will be monitoring of the physical integrity of the mitigation site and the level
of winter flounder spawning. The monitoring of winter flounder spawning.will be done
in a Before After Control Impact (BACI) design. In the case of complete failure, the
results of the physical and biological monitoring will be valuable to determine potential
causes. At this point in time, EPA feels it is premature to develop a contingency plan
with specific corrective actions without insight into what may have contributed to any
failures, which may not even occur. •
J
Monitoring of the sub-tidal and intertidal habitat is strictly of the physical integrity of the
capped area. There have been numerous examples in the scientific literature of the
benthic community recolonizing areas after a disturbance. We are confident that the
benthic community will quickly reestablish itself at the mitigation locations. We do
expect to see a different benthic community than what exists at those locations now. The
capping of sediments with elevated contaminant levels with clean material will
fundamentally change for the better the physical nature of the area. As a result, we
anticipate that a healthier biological community will develop here as well.
The scope of the shellfish mitigation plan is explained in response to NMFS comment
No. 4. Monitoring of reseeded areas will occur under the normal Mass DMF commercial
shellfish monitoring program. •
. f In its consultation role pursuant to the Fish and Wildlife Coordination Act,
NMFS, in its comment letter, recommended the following;
In order to avoid adverse impacts to migrating anadromous fish, blasting
activity should not occur between April I and June 30 of any year. Attenuation
devices such as bubble curtains or cofferdams may reduce the noise level
exposure to surrounding fish species and thus reduce impacts and mortality from
blasting;
EPA Response: The proposal that EPA is currently approving does not allow for the use
of blasting for rock removal. In an October 12, 2012 submission, the Commonwealth
identified four potential alternate non-blasting rock removal methods, commonly referred
to as Hoe Ram, Bucket Removal, Drill and Fracture and Cutter Head Dredging.
(MassDEP2012g) 'According to the results .of the Commonwealth's acoustical study,
these techniques do 'not generate pressure waves, and the noise levels they generate are
below the levels generated by blasting. The Commonwealth has not identified which
rock removal technique(s) it would employ, but the results predict that all of them would
minimize impacts sufficiently to allow rock removal to occur without time of year
restrictions. On November 16, 2012, the Commonwealth submitted the final acoustic
modeling report, which includes the details for the model, assumptions, and how the
model works (MassDEP2012s). Due to the late date of the submission of this report,
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EPA has not had adequate time to review it and confirm the results of the study. EPA
intends to review the report expeditiously. EPA is conditioning its approval on a
requirement that the rock removal activities may not proceed until EPA evaluates and
confirms the reasonableness of the model and the results, to ensure that the noise impacts
will not adversely affect the Atlantic sturgeon or other fish species. See Appendix H and
Appendix 1 for additional information.
g. In its consultation role pursuant to Section 7 of the Endangered Species Act.
triggered by the reasonable potential that Atlantic sturgeon, an endangered
species, may be in the vicinity of New Bedford Harbor during certain times of the
year, NMFS, in its comment letter, recommended the following:
1. Use of an environmental bucket for all dredging on this project;
EPA Response: The Commonwealth has agreed to use an environmental bucket on all
fine-grained sediments. For rock, clay, gravel or other coarser'material, the
environmental bucket does not operate efficiently. Some of the subsurface sediments •
from this Project are coarser in nature and the environmental bucket will not be used,
environmental bucket is not required from a pollutant containment and turbidity
perspective.
2, All possible mitigation methods (i.e., time of year restrictions (same as
those recommended for winter flounder but extended through the summer months), The
subsurface material has been tested and deemed to be clean material, so the
dredge types, etc.) that further reduce potential impacts to Atlantic sturgeon migrating
or foraging near the action area should be undertaken;
EPA Response: The Commonwealth, in an October 4, 2012 letter to EPA
(MassDEP2012j), has agreed to a suite of mitigation measures primarily directed at
winter flounder. However, they should be equally effective for other benthic demersal
fish, including Atlantic sturgeon. As explained above, dredging of fine-grained
sediments will be conducted using an environmental bucket to minimize water quality
impacts. In addition, from January 15 through June 15 of any year, the Commonwealth
will install absorbent booms, silt and bubble curtains, and fish weirs around any work
area that is shallower than -5 meters at Mean Low Lower Water ("MLLW") to keep fish
out of the areas during dredging, filling, and capping activities. The silt curtains will be
secured to the bottom to prevent demersal fish from penetrating the barrier. The
Commonwealth will use multiple fish startle systems to move any fish in these areas out
before construction begins. In addition, the Commonwealth will conduct weekly
monitoring of these areas to ensure the silt and bubble curtains maintain their structural
and operational integrity. Weekly monitoring will take place for'the presence of fish in ¦
these areas. If a large number of fish are detected in the Project zone, the fish startle
systems will be- redeployed. In deeper areas (> -5 m MLLW), from January 15 through
June 15 of any year, the Commonwealth will encircle dredging and other work areas with
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Appendix Q
absorbent booms and silt curtains, Also, at all times of year and in all locations, stringent
turbidity standards will need to be met.
3, To meet sound criteria for piling driving activities:
• ¦ Piles'installed in-the-dry during low water or in-water between
November 15 - March 14; or
• Piles must be drilled and pinned to ledge; or
• Vibratory hammers used to install any size and quantity of wood,
concrete or steel piles; or
; • Impact hammers limited to one hammer, and <50 piles
installed/day with the following: wood piles of any size, concrete
piles <_18-inches diameter, steel piles <12-inches diameter if the
hammer is < 3000 lbs and a wood cushion is used between the
, ( hammer and steel pile, ' -
• Any in-water work should lake the following specification into
consideration to be determined as "not likely to adversely affect"
Atlantic sturgeon: (I) Noise levels shall not exceed >187dB SEL
re I iPa or. 206dB peak re HP a at a distance > 10m from the pile
being installed; and (2) Noise levels >155 dB peak re lyPa shall
not exceed12 consecutive hours on any given day and a 12 hour
recovery period (i.e., in water noise below 155 dB peak re luPa)
must be provided between work days.
EPA Response: Both sheet pilings and pipe pilings will be installed as part of the GDF
construction. To reduce noise impacts, the Commonwealth will use vibratory hammers
(rather than impact hammers) to drive the sheet pilings. (See Commonwealth's
Biological Assessment report submitted on October 22, 2012 (MassDEP2012j)). The .
Commonwealth will install the pipe pilings in the following manner with the intention of
reducing sound impacts: The first set of pilings installed will be 65 pipe piles that are
24" diameter and have a 5/8" wall thickness. The pilings will be installed by drilling a
"rock socket" in place, placing the piling in the hole and then grouting it in place. This
construction technique is consistent with NMFS" recommendation of "drill and pin to
ledge". The second set of pilings will be 22 pipe pilings of 30"diameter with Va" wall
thickness. They will be installed with same construction method as the first set of
pilings. The third set of pilings includes 94 pipe piles that are of 30" diameter and have
%" wall thickness. These piles will be installed behind the proposed cofferdams and after
the filling has occurred. These pilings will be vibrated or driven in, but this installation is
considered an upland activity and will not impact fishery resources. (See
MassDEP2012j.)
The Commonwealth has completed an acoustic analysis of its proposed construction
activities and submitted the results of the analysis in its abo ve-referenced Biological
Assessment (MassDEP2012j). This report presents results and conclusions, but does not
contain detailed information on the construction and operation of the model. Thus,
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EPA cannot at this time verify the complete accuracy of these results. However, some
useful conclusions can be drawn from the analysis at this time.
1. Potential acoustic impacts would be primarily limited to behavioral
(avoidance) effects.
2. Potential acoustic impacts seem to be limited to an area surrounding the
Project site that represent less than approximately 1/3 of the cross-sectional
area of the river. This leaves ample room for fish passage.
3. From January 15 through June 15, a large percentage of the zone of
potential acoustic impact will already be blocked off with fish exclusion
devices (silt curtains, bubble curtains and fish weirs) designed to keep benthic
fish out of the project zone. Thus, during this time frame, Atlantic sturgeon
will be physically shielded from a large part of the area that could cause them
harm.
4. Bubble curtains can be employed as an effective means of minimizing the
potential area of impact.
4. Blasting sound decibel levels should be assessed if time of year
restrictions are not imposed. Atlantic sturgeon would be unlikely to be in
the vicinity of any blasting activity between November and March. If
blasting is performed during this timeframe (March to November), a
zone ofpassage, free of decibel levels higher than those described above,
should be available to avoid potential impacts to Atlantic sturgeon.
EPA Response: In the Final Determination, EPA is not approving the use of blasting.
The alternative methods of rock removal discussed above are expected to result in noise
impacts below the decibel levels identified in NMFS's comment, that trigger acute
mortality. In general, predicted acoustic impacts to Atlantic sturgeon will be limited to
behavioral responses (avoidance) in a small spatial area closest to the project site.
h. NMFS also commented that the Draft Determination is inconsistent regarding
' the minimum total area necessary for the marine terminal. Appendix E (section
4.3, page 15) says 28 acres; Section 4.4 of the Draft Determination says 20 to 28
acres are needed. The total minimum area required to meet the project purpose
and need should be clarified.
EPA Response:
We understand NMFS's comment to be pertinent to whether the filling of waters of the
U.S. has been avoided and minimized to the greatest extent practicable. The alternatives
discussion in Appendix E of EPA's Draft Determination mentioned the 20-28 acre range
based on information in the record and in comparison to alternative sites that were all less
than 20 acres. It was not necessary for purposes of that discussion to explicitly identify
the minimum practicable acreage since all of the alternative sites were impracticable even
using the lower figure of that range. We note, however, that the Commonwealth did
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New Bedford Harbor State Enhanced Remedy
provide information from Siemens (see Appendix 4 of the Commonwealth's January 18,
2012 submission to EPA), the first expected user of the South Terminal Facility,
including a letter which makes a general statement to the effect that a 28 acre facility is
the minimum size which would be required to support a the Cape Wind project. This 28 •
acre figure cited in the letter is backed by information regarding Siemens' logistics and
planned construction schedule to justify its statement, including a diagram of how the
area would be utilized. The letter points to the logistical considerations of staging
material, offloading and loading, and assembling turbines that Siemens examined at this
specific proposed facility which details how and why this area was calculated.
Even if the minimum acreage were 20 acres, however, the need for the proposed filling at
the site would be unchanged, since it is driven by other (non-areal). requirements also
cited in the'Siemens letter, such as the requirement that 1200 linear feet of bulkhead be
available for berthing of one international vessel and two installation vessels at one time.
Additionally, the loading criteria described within Section 4.3.2 of the Commonwealth's
January 18, 2012 submission to EPA indicates that a pile-supported structure is not
feasible due to the extreme point loads anticipated from large cranes lifting heavy pieces
of equipment. It is the combination of these two requirements (1,200 feet of bulkhead
and the high loading conditions requiring a filled structure) that necessitate a certain
quantity of filling of aquatic resources that would remain constant, irrespective of the
minimum size of the available backhand that could accommodate the proposed project.
EPA is persuaded that the fill in waters of the U.S. has been avoided to the greatest extent
practicable.
2, The Commonwealth of Massachusetts commented on the following issues:
a. Regarding shellfish mitigation, the Commonwealth commented that it
continues to believe that its proposed shellfish mitigation plan (grow
9,817,121 shellfish through seeding between 1 million and 2 million
seeds annually over a 5 to 10 year period) is sufficient mitigation for
. the lost shellfish resources associated with the project because
(1) the impacted areas contain very high levels of shellfish
because these areas are contaminated with PCBs and are
closed to shellfishing and consequently, shellfish are
permitted to reproduce without the impact of shellfishing
on their population; ' • -
(2) while consumption of shellfish in this area is forbidden
due to PCB contamination, as is relaying outside this
area, EPA asserts that these shellfish repreent a legitimate
source offorage for winter flounder — even though humans
may consume those same winter flounder which have
foraged on the impacted shellfish. The Commonwealth
contends that either the shellfish are acceptable for
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New Bedford Harbor State Enhanced Remedy
• ' . introduction into the food supply through relaying (and are
therefore an un-impacted 'resource), or they are not (and
are an impacted, degraded resource);
(3) the degraded nature of the existing resource may be
compensated for by a reduced seeding program; these
shellfish represent contaminated forage for winter flounder
and winter flounder appear to be negatively impacted by this
consumption, due to the high PCB content of the shellfish.
Removal of these shellfish, while impacting the available
food supply for winter flounder, eliminates a significant
source of contamination to winter founder;
(4) shellfish mitigation is not required for EPA, US ACE, or
State Enhanced Remedy projects; for instance, the U.S.
Army Corps of Engineers would not be required to mitigate
for shellfish impacts associated with dredging of the
Federal Channel and shellfish mitigation has not
previously been mandated for navigational dredging by
EPA or MassDEP, nor has EPA conducted any shellfish
mitigation i n association with its remediation of the upper
harbor.
EPA Response: EPA continues to believe that seeding of approximately 24 million
shellfish'is necessary to adequately address the loss of this resource due to the Project.
Specific responses to the Commonwealth's points follow. We note that the
Commonwealth, in its Final Mitigation Plan for the New Bedford Marine Commerce
Terminal, has agreed to seed 24,542,802 shellfish.
1. EPA agrees that the lack of commercial shell fishing in the Project area
certainly has contributed to the great abundance of shellfish there. It also
shows that the environmental conditions are sufficient to support that large
quantity of the resource. The fact that the resource hasn't been reduced as
a result of.commercial shellfishing does not alter the significance of the
loss of the resource as a prey base for winter flounder and other species.
2. Shellfish are widely recognized as a commercially and ecologically
important resource. The shellfish in New Bedford Harbor not only serve
as a prey base for winter flounder and other species, but they are important
source of seed for other shellfish beds downstream. In addition, they are
important filterers of the water. This water filtration function and the
seeding of remote beds are ecological functions that are performed
irrespective of PCB tissue concentrations, and losses of these functions
merit compensatory mitigation. Finally, as a point of additional
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New Bedford Harbor State Enhanced Remedy
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clarification, human consumption of winter flounder is prohibited in fish
closure area number 2.
3., It has been well established that winter flounder forage on clam siphons,
while humans tend to consume all of the soft tissue of the clam. In
general, contaminant concentrations in the digestive tract and internal
organs tend to be elevated over concentrations in .the siphons.-
4. EPA disagrees with this comment. Impacts to shellfish were considered both
in the Final EIR and in EPA's Record of Decision. Section 7.00 of the Final
EIR provides a summary of plans to avoid and minimize impacts to shellfish.
, Specifically, the DMF "will require compensatory replacement of lost '
shellfish." As for EPA's 1998 ROD, at pages 36-37, the ROD recognized
that the cleanup would have impact on shellfish and committed to coordinate
with U.S. Fish and Wildlife Service, NOAA, and the State Division of Marine
Fisheries to accommodate dredging schedule impacts on shellfish habitat.
• • b. With regard to air monitoring:
(1) requiring work to cease immediately if Particulates exceed 100 ug/m3
is inconsistent with the Particulate standard used by EPA for the Aerovox'
building demolition where work was not suspended until Particulate levels reach
at least 150 ug/m3. This inconsistency is not explained within EPA's Draft
Decision document and is a departure from EPA's previously established
position that 150 ug/m3 [at the Aerovox site J is sufficiently protective of human
health.
EPA Response:
The 100 (ig/m3 action level was also used for Aerovox. The 100 |ig/m3 action level was
based on a 10-hour time-weighted-average (TWA)'while the 150 ,u/m3 action level was
based on a 5-minute average. Either of these conditions would have required a work
stoppage. Given that PMio is being used as a surrogate to monitor for potential emissions
from other contaminants, EPA has determined that applying the same standards used for
Aerovox to this Project is reasonable and has incorporated these levels into its Final
Determination.
Prior to remedial activities within the Project, the Commonwealth will collect
background samples to establish site conditions. In the event that background levels are
higher than the established action levels, the background levels shall be the controlling
standards for the Project, which is consistent with the Aerovox project.
(2) Because there is no current evidence of widespread presence of asbestos
contamination, asbestos air monitoring should occur as a- contingency (should
bulk asbestos be located during work onsite), rather than as a requirement.
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EPA Response:
EPA agrees that Asbestos did not appear to be contaminant at the Project based on the
21E investigations. However, given the Project location, EPA has determined that it is
reasonable and prudent to include Asbestos in its air monitoring requirements. In the
event the Commonwealth is able to demonstrate that Asbestos is not a contaminant of
concern through monitoring, the Commonwealth may reduce its air monitoring frequency
for Asbestos, subject to EPA approval. EPA is requiring that the Commonwealth include
Asbestos sampling in,the baseline sampling event and for the first two weeks of active
excavation at the Main Facility, at a minimum.
In the event that new environmental conditions are identified during remedial or other.
land excavation activities, EPA's Final Determination includes a condition for the
Commonwealth to report the new condition to EPA and identify what, if any,
modifications are necessary to the air monitoring plan and/or to the remedial plan. In
addition, the new condition may trigger a state reporting condition under the MCP.
(3) How does the 0.1 ug/m3 standard for Airborne PCBs compare with
the airborne standard utilized by EPA during its dredging, dewatering, and
other remediation work in the Upper Harbor, as well as the standard used by
EPA during the Aerovox Building demolition.
EPA Response:
The action levels established for the Aerovox building demolition work were based on
background concentrations that have been observed during EPA's dredge work. Use of
an air standard lower than the observed background PCB air concentrations did not make
sense for this reason. As such, EPA's approach was to use the observed background
airborne PCB levels as the controlling standard for the Aerovox project. Note that the
standards that were used for Aerovox were lower for the residential boundaries than for
the non-residential boundaries. .
For the South Terminal project, EPA used a risk-based air concentration of 0.1 jig/m that
was derived for the non-cancer effects in a residential setting. In its draft determination,
EPA provided for an alternative air concentration of 0.26 ng/m3 if land activities were
located greater than 200 feet from a residential area.' EPA derived this alternative -
standard based on non-cancer effects for a commercial setting.
Prior to remedial activities within the Project, the Commonwealth will collect
background samples to establish site conditions. In the event that background levels are
¦ higher than the established action levels, the background levels shall be the controlling '
standards for the Project, which is consistent with the Aerovox project.
c. Regarding long-term monitoring, the Commonwealth commented that the
long-term monitoring requirements exceed those standards necessary to ensure long-
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term viability of the associated resource areas and, in some cases, extremely difficult if
not impossible and overly burdensome. In particular: ' .
(1) for annual bulkhead inspection a group of divers would likely have to be
trained, and detection of new aquatic invasive species within New Bedford
Harbor, which typically has extremely cloudy water, will be very
difficult, if not impossible. Additionally, this requirement appears to be
indefinite causing an unfair burden to the Commonwealth. The
Commonwealth proposes to develop an invasive monitoring and control
program through the Commonwealth's existing CZMAquatic Invasive
Species Program within the framework of the Massachusetts Aquatic •
Invasive Species Management. .. '
EPA Response:
The Commonwealth in its Final Mitigation Plan (MassDEP2012r) has provided a
reasonable invasive species monitoring plan featuring an annual inspection of the
bulkhead with divers. EPA finds this monitoring plan sufficient assuming that it is •
implemented as described.
(2) The Commonwealth cannot be responsible for removal of invasive species on
property not owned or controlled by the Commonwealth and commented that
this is overly burdensome, even if it would be beneficial to the overall health
of the restoration area.
EPA Response:
This comment responds to a concern EPA identified-regarding the Commonwealth's
initial compensatory mitigation plan for a salt marsh creation/enhancement adjacent to
the hurricane barrier. That plan has been abandoned in favor of a plan to create new salt
marsh at River's End Park. The issue of invasives on abutting private property to which
the Commonwealth could not gain access is not pertinent to the Commonwealth's new
plan. The River's End Park mitigation plan includes an appropriate invasive species
management plan. ''
d. With regard to dredging, the Commonwealth commented that it cannot
comply with EPA's requirement that all dredging be done using an
environmental bucket because that method is only effective for surficial silty or
organic material (which is also the material that typically is impacted with
anthropogenic material); denser "parent" material (material that underlies the
organic silts and predates anthropogenic impacts) is typically too stiff to remove
with an environmental bucket and more typically dredged using a clamshell or
excavator bucket.
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EPA Response: EPA agrees that the environmental bucket should be used for the
potentially contaminated surface silty material. We also agree that for parent material,
which has been deemed to be relatively free of anthropogenic influence, the
environmental bucket is not required,
e. As to site configuration, the Commonwealth submitted a revised site plan as
Attachment 1 (Configuration A2) to its comment letter that increases the overall
acreage of the project to 29.58 acres by adding property owned by NB Radio, Inc.,
comprised of 4.4 acres (New Bedford Asssessor's Map 31, Lot 234;) (the "Radio
Tower Site "), and removing the public boating area situated at the Clifford .
Street Boat Ramp. The Commonwealth comments that this modification does not
present a significant project change and Configuration A2 enhances the overall
operation utility of the proposed New Bedford Marine Commerce Terminal
because (1) the Radio Tower Site, located immediately adjacent to the parcels of
land abutting New Bedford Harbor, expands and enhances the operational utility
of the site; allows direct roadway access to Potomska Street, minimizing the
impact of commercial traffic on the residential communities; and is not
anticipated to present additional impacts to resource areas, subject, however, to
an environmental assessment'; and (2) removing the Gifford Street boat ramp
from the facility footprint eliminates potential impacts to recreational boating.
EPA Response:
EPA notes that since the Commonwealth's comment was submitted, the Commonwealth
has decided not to include in the terminal site the approximately 4 acre parcel just west of
the Gifford Street boat ramp parcel (Parcel 48). See Figure 4 of the Final Determination.
Based on EPA's review of the revised configuration, EPA concurs that the new
configuration (28.45 acres) should provide better utilization and enhancement of the site
operations. Given that the changes still provide for the site size requirements specified in
the Commonwealth's plan, EPA agrees that the new configuration does not conceptually
alter the objectives of the project.
f With regard to time of year restrictions on construction activities and
resulting impacts to the construction schedule and the Commonwealth's ability
to complete the project on a schedule that will allow it to -meet its stated goals, , .
the Commonwealth commented
(1) time of year restrictions on blasting activities (that they only be
conducted in the time period from November to February [to avoid
adverse affects on the Atlantic sturgeon]) is problematic for a
variety of reasons including the necessary sequence of construction
activities. The Commonwealth anticipates completing an acoustical
' The Commonwealth has submitted a Phase 1 environmental assessment for this property which can be
found in its October 1,2012 submission. (MassDEP2012f)
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modeling study and reviewing results with EPA to determine if the
time of year restrictions can he eliminated;
EPA Response:
At this point in time, EPA is not approving blasting to be used during construction of
this Project. EPA does not have sufficient information on the potential environmental
impacts associated with blasting, particularly with respect to impacts on Atlantic
sturgeon and other aquatic species, and on the Hurricane Barrier, to make an informed
judgment at this time. If the Commonwealth in the future determines that blasting is
necessary', it will need to seek a modification of the Final Determination, and will need
to provide additional information on potential impacts from blasting and mitigation
steps needed to minimize or eliminate those impacts.
(2) similar restrictions on pile driving activities could severely impact
the construction schedule beyond those associated with blasting
since pile driving is anticipated to take approximately eight months
whereas blasting will take approximately two months; the
Commonwealth requests that these restrictions be removed;
EPA Response:
In consultation with NMFS, EPA has determined that pile driving is unlikely to cause
adverse effects to Atlantic sturgeon or other species if conducted at a time of year when
the species may be present, as long as certain alternate construction techniques are used.
Accordingly, EPA is allowing pile driving to proceed without a time of year restriction so
long as the Commonwealth uses techniques such as "rock-socketing" and vibratory
hammers to minimize impacts from pile driving.
(3) because dredging is currently anticipated to take place for
approximately 14 of the 22 months of construction (63% of
construction), time of year restrictions on dredging (February to
June), or if ml completely stopped during this period, restricted to
deeper water to avoid winter flounder spawning habitat would
likely have a significant impact on the construction schedule. The
Commonwealth, therefore, requests an opportunity to work with
EPA to reduce the time of year and geographic restrictions to the
minimum necessary to protect affected species.
EPA Response:
To protect winter flounder spawning, the Commonwealth has devised a plan that will
result in the deployment of a series of silt and bubble curtains to minimize winter
flounder access to areas <-5 MLLW within the project area. After the curtains have been
erected, the Commonwealth will deploy multiple fish startle systems to encourage fish to
leave the work area. Weekly monitoring with a towed camera and divers will occur to
check on the integrity of the curtains and to look for the presence offish in the work area.
If a large number of fish, including winter flounder, are found in the work area, the fish
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Appendix Q
startle systems will be deployed in an attempt to get them to move out. EPA, in
consultation with NMl'S, has reviewed this plan and determined that it is sufficiently
protective of the winter flounder. Accordingly, EPA is requiring the Commonwealth to
use this plan for dredging (as well as filling and capping) that occurs in the shallow
waters between January 15 and June 15 of any year.
g. A methodology that allows the Contractor to submit a Contingency Plan
prior to the start of construction, which contains a number of alternative
contingency measures that could be implemented successively to control
turbidity, rather than a requirement that booms and silt curtains be utilized if
Performance Standards are not met would be preferable as multiple different
measures are available to address this issue, including slowing the pace.
EPA Response:
The Performance Standards in Appendix C do allow for development of a contingency
plan that could include a number of measures to control turbidity, not just the deployment
of silt curtains.
H. Comments from Commercial and Business Community
J. Acorn Management Company (Steve Rodni) voiced his support for the Project
especially given its potential to create jobs. He also expressed his faith in EPA
and MassDEP that they would not allow PCBs be contained if they believed it
was going to be more harmful for the community; "We can approach those
containment areas in the future and completely remove them when we have the
technology and ability to do so. " Mr. Rodni also noted that he is willing to help
in any way possible.
EPA Response:
EPA thanks Acom Management Company for its comment supporting the Project and the
use of a CAD to contained dredged sediment that contains low levels of PCBs. Please
refer to EPA's response to General Comment No. 3 concerning CADs.
2. AFC Cable Systems (Ken Lamar) expressed its support for the Project seeing it as
a job creator and as an opportunity to expand its business which produces armor
cable.
EPA Response:
EPA thanks AFC Cable Systems for its comment supporting the Project.
3. Maritime Terminal, Inc. (Pierre Bernier) expressed its support in writing and
orally for the modernization South Terminal will bring to New Bedford. He noted
the economic value of having a multi-use terminal and its potential to reduce
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix Q
transport costs for inbound and outbound material to help grow the industrial
¦ base in New Bedford.
He also commented that vessels do not have to intake ballast inside the harbor
before sailing for high seas; instead, intake the can be done on the way out in
transit or at anchorage without putting the vessel in danger of sinking. He further
commented that EPA did not cite CFR Part 51, Subpart D (prevention of non-
indigenous species entering via ballast water discharge), a regulation enforced by
the U.S. Coast Guard who would prevent a violator from entering the harbor.
EPA Response:
EPA thanks Maritime Terminal, Inc. for its comment in support of the Project
EPA assumes the comment is referring to 33 C.F.R. Part 151, Subpart D, Ballast Water
Management for Control of Nonindigenous Species in Water of the United States, which
applies to vessels "that operate in the waters of the United States and are bound for ports
or places in the United States." 33 C.F.R. § 151.2005. However, according to the
Commonwealth, the international vessels that will.be delivering the wind turbines will
not need to carry (or discharge) ballast water. Therefore, our environmental analysis
focused on the reasonable worst case situation for impacts due to the wind turbine
delivery vessels taking on ballast before making their return trip. We found the level of
impact on the aquatic environment from this practice would be minimal and acceptable.
If the vessels do not take on ballast until they leave Buzzards Bay, then the projected
impacts would be even less. Note, however, that ballast water is,not the only vector of •
travel for invasive species; they can be frequently found on cryptic parts of a ship's hull
or superstructure. Thus, EPA has required the Commonwealth to conduct annual
monitoring of" invasive species, on the bulkhead and pilings at the new port facility.
4. Deep Water Wind (Jeff Growbrowski) expressed its support for the Project, and
. voiced its confidence thai offshore wind will begin in the northeastern part of the ,
United States first and that New Bedford is ideally situated to the best wind '
resources offshore on the East Coast. He noted that huge ports have developed in
Northern Europe where wind farms have been built and that his company is
committed to building a large wind farm in the Northeast and committed to
bringing jobs with them.
EPA Response:
EPA thanks Deep Water Wind for its comment in support of the Project.
5. Cape Wind (Jim Gordon) spoke of his support for the Project and, as happened
in the past with construction of natural gas fired power plants that this company
helped to build in the area which provided permanent, high-paying jobs for
citizens in the area, this Project could "help catalyze and make this area .the
center of gravity for the offshore wind industry. " He also commented that wind
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New Bedford Harbor State Enhanced Remedy
power produces even less environmental impact than natural gas power plants,
thus reducing C02 and SO2 in the air.
EPA Response:
EPA thanks Cape Wind for its comment in support of the Project.
6. Neptune Wind, (Chuck Degadi) voiced his support for the Project and noted that
there is a cumulative effect to having this terminal b uilt in that there are many
offshore wind development companies that are interested in building offshore
wind projects off the coast of Massachusetts and they will bring construction,
operation, engineering and management jobs.
EPA Response:
EPA thanks Neptune Wind for its comment in support of the Project.
7. Joseph AbboudManufacturing Corporation (Anthony Sapienza) expressed its
support for the Project noting its past experience with the textile industry in New
Bedford that has died and the "cataclysmic " kind of event this Project offers to
support growth in the offshore wind industry and which can revitalize the area.
• EPA Response:
EPA thanks Joseph Abboud Manufacturing Corporation for its comment in support of the'
Project.
8. Mass Tank Manufactures (Steven Lynch) expressed it support for the Project
seeing it as a game changer, bringing new industry to the area as well as business
expansions, noting that if it doesn 't happen in New Bedford, it will happen
somewhere else and all the jobs will follow.
EPA Response:
EPA thanks Mass Tank Manufacturer for its comment in support of the Project.
9. New England Marine Renewable Energy Center (John Miller) expressed its
support for the Project, noting the incredible scale of support neededfor offshore
wind, including assembly space, and the number of fobs created.
EPA Response:
EPA thanks New England Marine Renewable Energy Center for its comment in support
of the Project.
10. Rodney Avila and Richard LaFrance, both longtime commercial fishermen, had
similar comments. They both voiced their support for the Project and commented
on the importance ofpreserving the working waterfront and associated jobs in the
fishing industry. They commented that they do not find any negative effects on the
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Appendix Q
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EPA Final Determination for the South Terminal Project
New Bedford Harbor State Enhanced Remedy
Appendix Q
waterfront or fishing industry from locating a terminal that supports the wind
industry. They commented that the terminal can be a productive engine for the
working waterfront andfor the next generation.
EPA Response: .
EPA thanks both Mr. Avila and Mr. LaPrance for their comments in support of the
Project. . . .
11. TPI Composites (Jim Hannan) expressed its support for the Project and its
potential for expansion of this wind blade manufacturing business.
EPA Response:
EPA thanks TPI Composites for its comments in support of the Project.
12. Fugro. (Sally McNeeland), an international geotechnical engineering from the
Netherlands, expressed its support for the Project and the potential for expansion
of its business in New Bedford.
¦ 'EPA Response:
EPA thanks Fugro for its comment in support of the Project.
13. No Fossil Fuel (Mary O'Donald) expressed support for the Project and
commented that PCBs should go into the CAD cell because it is urgent to get this
Project done given the benefits of wind energy to the environment.
EPA Response: •
EPA thanks No Fossil Fuel for its comment in support of the Project and refers to
General Comment No. 2 in response to the need for swift action in issuing a Final
Determination.
14. Sgurr Energy (James Poland), a Scottish company specializing in renewable
energy, expressed its support for the Project, commenting that this company has
been building and training its staff in the United States in anticipation of the wind
industry. He urged an expeditious decision approving the Project "to help jump
start the offshore wind industry in Massachusetts and the U.S.A. and be in a
position to become a regional hub for future projects. "
EPA Response: .
EPA thanks Sgurr Energy for its comment in support of the Project and refers to General
Comment No. 2 in response to the need for swift action in issuing a Final Determination.
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Appendix Q
15. K2 Management of North America (Garston Jensen) expressed its support for the
Project and commented on the importance of investing in the infrastructure of the
Harbor to support the wind industry otherwise the companies and jobs associated
with the wind industry will move to harbors and ports that can accommodate the
industry. He commented on the variety of jobs spawned by the industry and urge
swift action on a final decision in favor of the Project.
EPA Response:
EPA thanks K2 Management of North America for its comment in support of the Project
and refers to General Comment No. 2 in response to the need for swift action in issuing
the Final Determination,
16. Siemens Wind Power (Rasper Vincent), manufacturer of offshore wind turbines,
expressed its support for the Project, commenting on the attributes of a Harbor
that make it suitable to support assembly of the components of the turbines,
including accessibility to the offshore turbine location, local employment, support
from local businesses, sand adequate acreage and based on his knowledge, the
South Terminal Project meets these needs.
EPA Response:
EPA thanks Siemens Wind Power for its comment in support of the Project.
. 17, Global Marine Energy (Joel Whitman) an American subsidiary of a British
company that is the largest installer of offshore cable in the world, expressed its
support for the Project and commented that its company has a presence all over
the world and with it jobs and that it would like to expand into the East Coast but
so far there is not been a port to support offshore renewable energy. He urged all
stakeholders to work together to bring this Project to New Bedford.
EPA Response:
EPA thanks Global Marine Energy for its comment in support of the Project.
18. EDF Renewable Energy expressed its support and commented that, based on its
European experience in developing and building offshore wind projects, the
location and scale of nearby ports is an important component in choosing where
to assemble components and deploy vessels. This project is likely to result in new
investment and job creation in Massachusetts.
EPA Comment:
EPA thanks EDF Renewable Energy for its comment in support of the Project.
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EPA Final Determination for the South Terminal Project.
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Appendix Q
Responsiveness Summary
Attachment A - List of Submitted Comments
A. General Comments
B. Elected Officials
New Bedford Mayor Jon Mitchell
State Senator Tony Cabral
State Representative Chris Markey
Congressman William Keating (through James Quigley)
Congressman Edward Markey (through Mark Gallagher)
Senator John Kerry (through Amy Kerrigan)
Congressman Barney Frank (through Inez Goncalves-Drolet)
New Bedford City Council (President and Ward 2 City Councilor Steven Martins)
New Bedford City Councilor (Ward 3 City Councilor, Henry Bousquet)
New Bedford City Councilor (City Councilor, Joseph Lopes)
New Bedford City Councilor (Ward 4 City Councilor. Bruce Duarte)
C. Area residents
KarenVilandrv [sic] Falange
Brendan Bowen
Lauren Costello
Tom Kennedy _ • .
Scott Lang, former Mayor, New Bedford
Joseph 'Jo-Jo' Fortes
Chuck Dade
Frank Haggerty
¦D. Trade Unions
Ironworkers - Local 37 (Roy Coulombe)
Greater Southeastern Mass Central Labor Council (John Fernandez)
Bricklayers Union (Tim Pimental)
International Longshoremens Association (Joseph 'Jo-Jo' Fortes)
New England Carpenters Union (Ron Rheaume)
Boston & New England Maritime Trades Council, AFL-CIO (Gerard Dhooge)
International Union of Operating Engineers, Local 4 (Louis Rasetta and David Fantini )
E. Business Advocacy Groups
New Bedford Economic Development Council (Anthony Sapienza)
Port of New Bedford (Ed Washburn)
F. Non Profit, Religious and Academic Institutions
Hands Across the River Coalition (Ed Rivera)
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EPA Final Determination for the South Terminal Project Appendix Q
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Old Bedford Village Development Corporation (John Buddy Andrade)
Environmental League of Massachusetts (Ken Pruitt)
Buzzards Bay Coalition (Marc Rasmussen)
Sierra Club (Drew Granday)
University of Massachusetts, Dartmouth (Paul Vigeant)
Church Council of Greater New Bedford (Rev. David A. Lima)
Marion Institute (Desa VanLaarhoen)
Clean Water Action (Joel Wool)
G. Federal and State Entities
National Marine Fisheries Service, Northeast Region (John K. Bullard)
- Massachusetts Executive Office of Energy and Environmental Affairs (Gary Davis)
H. Commercial and Business Community
Acorn Management Company (Steve Rodni)
AFC Cable Systems (Ken Lamarre)
Maritime Terminal (Pierre Bernier)
Deepwater Wind (Jeff Grybowski)
Cape Wind (Jim Gordon)
Neptune Wind (Chuck Digate)
Joseph Abboud Manufacturing Corp (Anthony Sapienza)
Mass Tank (Stephen Lynch/Carl Horstmann)
New England Marine Renewable Energy Center (John Miller)
Richard Lai-ranee, Commercial Fisherman
TP1 Composites (Jim Hannon)
Fugro (Sally McNeilan)
No Fossil Fuel (Mary O'Donnell)
Sgurr Energy (Jim Tolan)
K2 Management (Carsten Jensen) .
Siemens Wind Power (Casper Kvitzau)
Global Marine Energy (Joel Whitman)
EDF Renewable Energy (Doug Copeland)
Rodney Avila, Commercial Fisherman
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New Bedford Harbor State Enhanced Remedy
Appendix Q
Responsiveness Summary
Attachment B - Reference Documents
1. Senate Bill No. 02367, The Commonwealth of Massachusetts, In the year Two
thousand Twelve - An Act authorizing the commissioner of the Division of Capital
Asset Management and Maintenance to convey certain land in New Bedford to, the city
of New Bedford. .
2. Press Release from office of Jonathan F. Mitchell, Mayor, City of New Bedford,
dated August 2, 2012,"Governor Signs Key South Terminal Bill: Project Continues to
Accelerate".
3. Article from New Bedford Standard Times, dated July 19, 2012, "Council to take
South' Terminal vote, as project begins to inch forward".
4. Article from New Bedford Standard Times, dated August 1, 2012,''"State moves
forward on South Terminal".
5. Plan entitled "Approval Not Required Plan of Land located in New Bedford, MA
prepared for City of New Bedford Development Authority recorded in the Bristol South
Registry of Deeds in Plan Book 148 at Page 92. As referenced in The Consensual Order
of Taking from Bristol South County Registry of Deeds Book 7642, Page 344.
6. City of New Bedford, MA/Success Stories/Brownfields in New England/EPA New
England website found at ,
http://www.epa.gov/regionl/Brownfields/success/newbedfordl.htmL
7. Cover page, pages 1 and 8, Appendix 1 with 2 figures of a report entitled: Phase 1
Environmental Site Assessment. January 2006 For Property at: Former Standard Times
Field, Lot 9G. New Bedford Massachusetts 02740. Prepared by TRC Environmental
Corporation. The full report may be found at http://www.newbedford-
ma.gov/Environmental/L2Q06-034new.pdf. '
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