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FEDERAL AND STATE REGULATORY COMPLIANCE
This section identifies the federal and state environmental permits and regulatory
requirements that apply to the project. A discussion of the requirements and the status of
project compliance are provided. Since MassDOT is exempt, city ordinances are not
discussed.
9.1
NEPA / MEPA Process
The project is substantially supported by federal funding from the Federal Highway
Administration (FHWA) and is required to comply with the National Environmental
Policy Act (NEPA). The Massachusetts Environmental Policy Act (MGL c30 s 60 and
301 CMR 11.00) requires that Massachusetts state agencies consider the environmental
consequences of their actions. An environmental review process under the Massachusetts
Environmental Policy Act is required when there is an action of an agency of the
Commonwealth and the size or other characteristics of the project raise it above certain
review thresholds. This combined Environmental Assessment (EA) and Environmental
Notification Form (ENF) document has been prepared to meet the requirements of NEPA
and MEPA.
The FHWA Technical Advisory T6640.8A Guidance for Preparing and Processing
Environmental and Section 4(f) Documents provides the instructions for compliance with
NEPA, along with 23 CFR 771, and the Environmental Guidebook on the FHWA
website was also consulted. All information required for the EA is provided in Part 1 of
this document.
The ENF is required pursuant to the MEPA thresholds for Roadways or other
Transportation Facilities (301 CMR 11.03(6)). The ENF has been prepared using the
recently revised form issued by the MEPA office. All information specific to MEPA
requirements is provided in Part 2 of this document. Project information provided in Part
1 (EA) supports the MEPA submission and reduces redundancy.
9.2
Interstate Access Policy
The federal Interstate System was established for the movement of both military and
civilian equipment, freight, and personnel over long distances between and within States.
The FHWA is charged with administering the program to design and construct the
Interstate System. It is the FHWA’s continuing responsibility to protect both the
engineering and operational integrity of the interstate roadway system, in this case
Interstate I-195.
Pursuant to the federal Interstate Access Policy, an Interchange Modification Report
(IMR) was submitted to FHWA which presented analysis of the alternatives in terms of
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impacts on the engineering and operational integrity of the interstate roadway system, in
this case Interstate-195. In a letter dated February 29, 2012, FHWA made a conditional
affirmative determination of the engineering and operational acceptability of the AtGrade (Preferred) alternative. The letter is included in Appendix 1, Traffic. In the IMR,
and the Traffic Study, the alternatives are numbered differently than they are in the
EA/ENF document. The nomenclature used in the EA/ENF evolved during the
alternatives analysis process and was selected for simplicity and clarity in this document.
The chart in Section 1.8 compares the nomenclature for the alternatives in the EA/ENF
and other traffic studies.
9.3 Section 106 of the National Historic Preservation Act of
1966
Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies
to consider the effects of their undertaking on properties on or eligible for inclusion in the
National Register of Historic Places.
MassDOT’s Cultural Resources Unit (CRU) carefully reviewed all elements of the AtGrade (Preferred) alternative and conducted substantial research to prepare the Section
106 document for this project. MassDOT submitted a finding of No Adverse Effect
(NAE) to the Massachusetts State Historic Preservation Officer (SHPO) through the
Federal Highway Administration. The SHPO concurred with the Finding of No
Adverse Effect on October 24, 2011.
MassDOT submitted a Notice of Project Change to the SHPO through the Federal
Highway Administration for additional work on the two National Register-eligible,
single-span stone arch bridges on Central Street within the Route 79/I-195 Interchange
Improvements project area: Bridge F-02-093, which carries Central Street over the
Quequechan River, and Bridge F-02-016, which carries Central Street over the Mass
Coastal Railroad Right-of-Way. The SHPO concurred with the opinion that the
additional work proposed for the National Register-eligible Central Street Bridges over
the Quequechan River and the Mass Coastal Railroad Right-of-Way is consistent with
the previous Section 106 No Adverse Effect finding for this project.
MassDOT’s CRU staff reviewed the revised scope of work for the project regarding the
reconfiguration of Connector Street between Pocasset Street and Milliken Boulevard. The
proposed work involves widening Connector Street by a full travel lane for one block
between Pocasset Street and Anawan Street, which will require a taking of approximately
3,650 SF of private property on the easterly side. CRU staff previously determined that
there are no National Register-listed or National Register-eligible properties in this
section of the project area. A review of the Massachusetts Historical Commission
archaeological base maps revealed no recorded sites in the immediate vicinity. The area
of the taking has been previously disturbed by grading and landscaping activities. Little
or no archaeological potential can be ascribed to the project area based on the absence of
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recorded sites in the vicinity, the effects of previous roadway and sidewalk construction,
and roadside development.
Section 106 documents are provided in Section 10.2 of the EA.
9.4
DOT Section 4(f)
Section 4(f) of the Department of Transportation Act of 1966 (recodified as 49 USC
Section 303(c)) states that land from a significant publicly owned park, recreation area,
wildlife or waterfowl refuge, or land of a historic site can be used for a transportation
project only if:
• there is no prudent and feasible alternative that would avoid using the resource,
and
• the project includes all possible planning to minimize impacts.
A use may be direct (physical) or indirect (constructive). A direct use occurs when there
is an actual physical taking of a Section 4(f) property. A constructive use occurs when
adverse indirect impacts would substantially impair the use of the resource.
Since the project has been designed to avoid such resources, it will not have an adverse
effect on any historic resources in the project area, and no permanent impacts to publicly
owned parks, such as Fall River Heritage State Park.
However, two temporary easements will be required within Heritage Park for a total of
approximately 52,500 SF. A temporary easement of approximately 16,600 SF within
Heritage Park is necessary to construct a retaining wall near Central Street and to have
access to repair the Central Street Bridge over the Quequechan River. The retaining wall
will be constructed on existing MassDOT right-of-way but access through Heritage Park
is necessary during construction. Also within Heritage Park, the layout of the existing
parking lot near the community boating/boat launch facility will be modified and will
require a temporary easement of approximately 35,900 SF. The number of parking spaces
will remain the same and the parking lot will be resurfaced and re-striped. Use of
Heritage Park and the community boating program will continue during the construction
period. Boats for the community boating program are currently stored under the viaduct
structure. However, with the proposed project, this area will no longer be available.
Because the project will only have temporary impacts to Heritage Park, it is exempt from
Section 4(f). According to 23 CFR 774.13, exceptions to Section 4(f) include "(d)
Temporary occupancies of land that are so minimal as to not constitute a use within the
meaning of Section 4(f)" if the following conditions are satisfied:
1) Duration must be temporary, i.e., less than the time needed for construction and
there should be no change in ownership of the land;
2) Scope of the work must be minor, i.e., both the nature and the magnitude of the
changes to the park are minimal;
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3) There are no anticipated permanent adverse physical impacts, nor will there be
interference with the protected activities, features, or attributes of the property, on
either a temporary or permanent basis;
4) The land being used must be fully restored, i.e., the property must be returned to a
condition which is at least as good as that which existed prior to the project; and
5) There must be documented agreement of the Official with Jurisdiction [DCR] over
the park regarding the above conditions.
Correspondence with DCR, the Official with Jurisdiction over Heritage Park, is included
in Section 10.6. Thus, Section 4(f) is not applicable.
9.5 Coastal Zone Management Program Federal Consistency
Review
The Massachusetts Coastal Zone Management Office (MCZM) implements the 2011
Massachusetts Coastal Zone Management Policy Guide (Policy Guide) which is a
component of the federally approved Massachusetts coastal program and replaces the
2002 Massachusetts Coastal Zone Management Plan. The Policy guide includes the
coastal program polices. MCZM established the Designated Port Area (DPA) program
for the purposes of promoting and protecting marine industrial activities and other
supporting uses. MCZM ensures consistency with its policies by the federal consistency
review process through several laws and regulations such as the Massachusetts
Environmental Policy Act (MEPA), the Massachusetts Wetlands Protection Act, and the
Massachusetts Public Waterfront Act (Chapter 91).
Any project undertaken by a federal agency, requiring a federal permit, or receiving
federal funding that may affect the Massachusetts coastal zone must be consistent with
the MCZM’s coastal policies. Projects that are above certain MEPA thresholds require a
Federal Consistency Review. The Federal Consistency Review ensures that federal
activities are consistent with state coastal policies. MCZM participates in review of
projects through several laws and regulations such as MEPA, the Wetlands Protection
Act, the Public Waterfront Act (Chapter 91), the Clean Water Act (Section 401 Water
Quality Certification) and others. Projects that do not exceed MEPA review thresholds
are presumed to be consistent with applicable MCZM policies.
A federal consistency certification that describes the project’s compliance with applicable
CZM policies has been submitted to the CZM office. A public notice will be placed in the
Environmental Monitor for public comment. After receiving the final MEPA Certificate
for the project, and receipt of all other applicable state license and permits, the CZM
Office will determine if it concurs with the Federal Consistency Review. The CZM
Consistency Review is included in Section 10.1.
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9.6 Clean Water Act Section 404 ACOE Programmatic General
Permit
Section 404 of the Clean Water Act established a program to regulate the discharge of
dredged or fill material into waters of the United States. The program is jointly
administered by the U.S. Army Corps of Engineers (ACOE) and the Environmental
Protection Agency (EPA). The ACOE is responsible for the day-to-day administration
and permit review and EPA provides program oversight.
In the New England District of the U.S. Army Corps of Engineers, State General Permits
(GP) are used. State General Permits vary by state but all take advantage of strong state
coastal and wetland protection laws, which reduces duplication in review between the
ACOE and the state, and expedites the permit review process for the applicant.
Each GP utilizes a tiered approach with categories linked to impact thresholds. These
thresholds are listed in the individual permits and determine the level of review necessary
from the federal perspective. For example, certain activities are non-reporting to the
ACOE once an applicant has obtained all required state and local approvals.
The Massachusetts General Permit (GP) is effective until January 20, 2015 and was
modified in July 28, 2011. Under this GP, projects that meet all the GP’s terms and
eligibility criteria may qualify either under Category 1 or Category 2.
After a site walk was conducted, the ACOE determined that it would have jurisdiction of
the Quequechan River Bypass Channel. The Preliminary Jurisdictional Determination is
provided in Section 10.9. The Interchange Reconstruction Project would therefore qualify
under Category 2 (application required) due to alterations to the Quequechan Bypass
Channel and temporary work in the Quequechan River to repair and reinforce the Central
Street Bridge.
9.7 Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA) guarantees equal opportunity for
individuals with disabilities in public accommodations, employment, transportation, state
and local government services and telecommunications. The Rehabilitation Act of 1973
and the Architectural Barriers Act of 1968 also relate to individuals covered by the ADA.
The US Department of Transportation has issued an Accessibility Policy Statement
pledging a fully accessible multimodal transportation system.
All meetings were held at facilities accessible to all in compliance with the ADA / Title
II. All notices of meetings included contact information to request language or access
accommodations. MassDOT provides reasonable accommodations and/or language
assistance free of charge upon request, including but not limited to interpreters in
American Sign Language and languages other than English, open or closed captioning for
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videos, assistive listening devices and alternate material formats, such as audio tapes,
Braille and large print. For accommodation or language assistance, people are given the
contact information for MassDOT’s Director of Civil Rights.
New sidewalks will meet or exceed Americans with Disabilities Act (ADA) standards.
Existing sidewalks that are reconstructed will be in compliance with ADA, except for
some sidewalks that may require waivers because of the existing steep topography.
9.8 Clean Air Act
The Clean Air Act regulates air emissions from area, stationary, and mobile sources. The
Act has been amended several times, most recently in 1990. This law authorizes the U.S.
Environmental Protection Agency to establish National Ambient Air Quality Standards
(NAAQS).
Non-attainment areas are areas which do not meet national ambient air quality standards.
For projects within non-attainment areas or maintenance areas, Federal agencies must
complete a determination for conformity with the State Implementation Plan (SIP).
The Southeastern Massachusetts Metropolitan Planning Organization (SMMPO)
prepared the conformity determination analysis for the 2012 Regional Transportation
Plan and the FFY 2012 Transportation Improvement Program (TIP) in accordance with
EPA’s final conformity regulations. The TIP’s air quality analyses demonstrated that the
implementation of the TIP satisfies the conformity criteria where applicable and is
consistent with the air quality goals in the Massachusetts SIP. Specifically, the
Southeastern Massachusetts SMMPO has found the emission levels from the FY 2012­
2015 TIP, in combination with the emission levels from the other MPOs in its nonattainment area, demonstrate conformity with the SIP. Therefore, the FFY 2012-2015
Transportation Improvement Program (TIP) is in conformity with the SIP where required.
Thus, the Interchange Reconstruction Project, as included in the TIP, is considered to be
in conformity with the State Implementation Plan and its air quality goals.
A NAAQS Assessment is not required for this project.
9.9 Title VI of the 1964 Civil Rights Act, 1994 Executive Order
12898, 2002 Massachusetts Environmental Justice Policy
and other Orders
Title VI of the 1964 Civil Rights Act states that "No person in the United States shall, on
the ground of race, color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance." Title VI bars intentional discrimination as well as disparate
impact discrimination (i.e., a neutral policy or practice that has a disparate impact on
protected groups).
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The following Environmental Justice (EJ) Orders provide that "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.
Federal Executive Order 12898 (Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations) was issued in 1994 and requires
federal agencies to identify and address disproportionately high and adverse human
health or environmental effects of federal actions (such as federally-funded roadway
projects) on minority and low-income populations. If such impacts would result,
mitigation measures or alternatives must be developed to avoid or reduce the impacts.
In April 1997, the U.S. Department of Transportation (DOT) issued the DOT Order on
Environmental Justice to Address Environmental Justice in Minority Populations and
Low-Income Populations (DOT Order 5610.2) to summarize and expand upon the
requirements of Executive Order 12898 on Environmental Justice. The Order generally
describes the process for incorporating environmental justice principles into all DOT
existing programs, policies, and activities.
In December 1998, the FHWA issued FHWA Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations (DOT Order 6640.23) that requires
the FHWA to implement the principles of the DOT Order 5610.2 and E.O. 12898 by
incorporating environmental justice principles in all FHWA programs, policies and
activities
There are three fundamental Environmental Justice principles:
1. To avoid, minimize, or mitigate disproportionately high and adverse human health
or environmental effects, including social and economic effects, on minority
populations and low-income populations.
2. To ensure the full and fair participation by all potentially affected communities in
the transportation decision-making process.
3. To prevent the denial of, reduction in, or significant delay in the receipt of
benefits by minority populations and low-income populations.
The 2002 Massachusetts Environmental Justice Policy is based on the principle that all
people have a right to be protected from environmental pollution and to live in and enjoy
a clean and healthful environment. EJ is the equal protection and meaningful involvement
of all people.
The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) defines
EJ populations as neighborhoods (U.S. Census Bureau census block groups) that meet
one of more of the following criteria:
• Median annual household income is at or below 65% of the statewide median
income;
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25% or more of the residents are a minority;
25% or more of the residents are foreign born; or
25% or more of the residents are lacking English language proficiency
Based on the 2000 U.S. Census, Fall River meets all four EJ population criteria. Over
57% of Fall River’s population is living within designated Environmental Justice (EJ)
areas. The Route 79/I-195 Interchange Project area is classified as an “Environmental
Justice” community based on percentage of foreign-born residents, income, membership
in a minority group, and proficiency in English.
Throughout the public participation process, outreach was done to engage the
underserved and disadvantaged populations who would potentially be impacted by the
project. Meeting notices for the public information meeting were prepared in Spanish and
Portuguese as well as English and disseminated via the Portuguese Times and El Latino
Expreso newspapers in the Fall River area. Meeting notices were also published in the
Herald News. Multi-cultural organizations, businesses, and institutions were notified via
e-mail of the meeting. The Spanish and Portuguese language meeting notices were posted
on the project website, at the local library, and at City Hall. Individual mailings were
done for members of the Task Force who did not use email.
As the project design advances, outreach will be implemented at the beginning of the
project and continue throughout construction with businesses and neighborhoods that will
be impacted by the construction activities and detours. For the upcoming permitting
phase of the project, meeting notices for the public hearings and other notifications will
be prepared in Spanish and Portuguese as well as English and disseminated via the
Portuguese Times and El Latino Expreso newspapers and also published in the Herald
News. Abutter notification mailings required for permits will be printed in Spanish and
Portuguese, as well as English.
The project is expected to benefit residents in the EJ areas. Removal of the elevated
highway viaduct, new signalized pedestrian crossings, improved conditions for cyclists,
and improved access to resources along the waterfront have been identified as benefits.
Short-term disruption during construction would affect EJ populations the same as
commuters and others. The proposed project will not adversely or disproportionately
impact minority or low-income populations.
9.10 National Pollution Discharge Elimination System (NPDES)
The NPDES Stormwater Program requires construction sites to obtain authorization to
discharge stormwater under an NPDES construction stormwater permit. This program is
administered jointly by the Environmental Protection Agency (EPA) and the
Massachusetts DEP. As required, a Notice of Intent will be filed with the U.S.
Environmental Protection Agency for an NPDES Construction Management General
Permit 72 hours prior to the start of construction by the selected Design-Build contractor.
The contractor will be required to prepare a Stormwater Pollution Prevention Plan
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(SWPPP) and adhere to the plan to control stormwater and prevent the movement of
sediment from the construction site. The construction contract will include specifications
regarding NPDES requirements.
9.11 MassDEP Section 401 Water Quality Certificate
Pursuant to the Federal Clean Water Act, any project that would require a federal permit
from the U.S. Army Corps of Engineers under Section 404 requires a Water Quality
Certificate to ensure that the project is in compliance with state water quality standards
and regulations. The Water Quality Certificate is issued by DEP.
9.12 Massachusetts Wetlands Protection Act
Ongoing coordination with the Fall River Conservation Commission has been carried out
pursuant to the Massachusetts Wetlands Protection Act (WPA) and the Riverfront
Protection Act (MGL c 131 s 40), and their regulations.
As part of the early design and environmental review phase, an Abbreviated Notice of
Resource Area Delineation (ANRAD) was submitted to the Fall River Conservation
Commission in order to establish the wetland resource area boundaries and jurisdictional
determinations in advance of the final design. The Commission issued an Order of
Resource Determination (ORAD DEP File No. SE-24-0607) which determined the
Quequechan River bypass culvert and channel are non-jurisdictional and not subject to
the WPA regulations. The ORAD is provided in Section 10.3.
As part of the 25% design phase, a Notice of Intent was submitted to the Conservation
Commission for alterations to the Buffer Zone and temporary work within the tidal
Quequechan River (Land Under Ocean). The Commission issued an Order of Conditions
(DEP File No. SE-24-0629) for the project. The selected Design-Build contractor will be
required to build the project in compliance with the Order of Conditions issued for the
project. The Order is provided in Section 10.3. The project will alter a portion of the 100­
foot Buffer Zone of the Bordering Vegetated Wetlands that is adjacent to Crab Pond. In
most municipalities in Massachusetts, the Riverfront Area (RA) is 200 feet wide and is
measured from each side of the river from the mean annual high water line outward
horizontally and parallel to the river. However, the Riverfront Area is 25 feet in certain
communities with large populations or densely developed areas, such as Fall River.
Certain activities and previously developed areas are either exempt, grandfathered, or
allowed without review under the RA regulations. This includes areas that are associated
with historic mill complexes, activities subject to a Chapter 91 Waterways license or
permit, or structures in existence prior to 1996.
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9.13 Massachusetts Public Waterfront Act (Chapter 91)
The Public Waterfront Act, better known as Chapter 91, applies to dredging, placement
of structures, change in use of existing structures, placement of fill, and alteration of
existing structures within filled tidelands as well as in flowed tidelands (current tidal
reach). M.G.L. c.91 and the Waterways Regulations, 310 CMR 9.00, regulate any project
proposed in, under, or over flowed or filled tidelands.
Flowed Tidelands are areas that are currently subject to the ebb and flow of the tides.
Filled tidelands are former submerged lands and tidal flats that are currently upland and
no longer subject to tidal action due to the area having been filled by previous
construction or other activities.
Portions of the project area are within both flowed and filled tidelands. More project
information specific to Chapter 91 is provided in the ENF in Part 2 of this document.
9.14 FHWA 23 CFR 772 and MassDOT Noise Abatement Policy
In 1972, Congress required
highway projects. This noise
state transportation agencies
address the issue of highway
federally aided highways.
FHWA to develop a noise standard for new Federal-aid
standard provided national criteria and requirements for all
and allowed states to develop their own noise policies to
traffic and construction noise in the planning and design of
FHWA’s noise regulations define two types of highway noise projects, Type I Projects
and Type II Projects. Type I projects involve construction of new highways or
improvements to existing highways. Type II projects are projects that involve
construction of noise barriers to reduce noise levels adjacent to existing highways. A
noise analysis is required for all Type I projects regardless of whether they occur on a
controlled access highway or on an uncontrolled access highway. Furthermore, highway
traffic noise analyses are required for all Type I projects, even when there is no change in
the surrounding noise environment. The Route 79 I-195 Interchange Reconstruction
Project is a Type 1 project because it involves new construction and a change in the
alignment and elevation of roadways.
To enact its noise abatement program, MassDOT has developed a revised (as of July 13,
2011) Type I and Type II Noise Abatement Policy and Procedures to comply with and to
implement the noise regulations in 23 CFR 772, as well as to be in accordance with the
FHWA’s Highway Traffic Noise Analysis and Abatement Guidance, dated June 2010
(revised January 2011). The noise assessment for the project has been done in accordance
with the July 13, 2011 MassDOT Noise Policy. As discussed in Sections 4.7 and 6.7, no
noise impacts will occur as a result of the project and, therefore, no noise abatement
measure are required for mitigation.
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9.15 Massachusetts Contingency Plan (Chapter 21E)
Although it is unlikely that a spill or release will result from the construction of the
proposed project, the Design-Build contractor will be required to implement a Spill
Control Program in compliance with the Massachusetts Contingency Plan (310 CMR
40.00). As part of the completion of the 25% design phase, a Phase I Environmental Site
Assessment (ESA) will be completed. If necessary, a Phase II ESA will also be
completed.
Massachusetts General Law, Chapter 21E, the state Superfund law, created the waste site
cleanup program. Contaminated properties regulated under this law are often called “21E
sites”. The regulations adopted to implement c. 21E are called the Massachusetts
Contingency Plan (MCP). The Massachusetts Department of Environmental Protection
has implemented the 21E program through a set of regulations known as the
Massachusetts Contingency Plan (MCP). The Massachusetts Department of
Environmental Protection’s (DEP) waste site cleanup program, under the jurisdiction of
the Bureau of Waste Site Cleanup (BWSC), administers oil and/or hazardous material
cleanups, ranging from tanker truck spills, to contaminated groundwater, to sites with
polluted soil.
An American Society for Testing and Materials (ASTM) Phase I Environmental Site
Assessment (ESA) is a report which identifies potential or existing environmental
contamination for a project area. The review investigates both the underlying land as well
as physical improvements to the property. The objective of a 21E Phase I Environmental
Site Assessment (ESA) is to evaluate whether recognized environmental conditions
(RECs) are present. A recognized environmental condition is when there is the presence
or likely presence of any hazardous substances or petroleum products on a property.
REC does not include de minimis conditions that generally do not present a material risk
of harm to public health or the environment and that generally would not be the subject of
an enforcement action if brought to the attention of appropriate governmental authorities.
If a site is considered contaminated, a Phase II environmental site assessment may be
conducted, involving chemical analysis for hazardous substances and/or petroleum
hydrocarbons. The actual sampling of soil, air, groundwater and/or building materials is
typically conducted during a Phase II ESA.
The project will conduct a Phase I ESA and if necessary, a Phase II ESA.
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