02-19972. Notice of Availability of Revised Draft Restoration Plan and Environmental Assessment for the Applied Environmental Services (Shore Realty) Superfund Site

AGENCY:

National Oceanic and Atmospheric Administration, Department of Commerce

ACTION:

Notice of availability; request for comments.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA), of the U.S. Department of Commerce, hereby gives notice of the availability of the Revised Draft Restoration Plan and Environmental Assessment for the Applied Environmental Services (Shore Realty) Superfund Site for public review. NOAA, the U.S. Fish and Wildlife Service (USFWS), of the U.S. Department of the Interior (DOI), and the State of New York (New York), share trusteeship authority over natural resources adversely affected by releases of hazardous substances from the Shore Realty Superfund Site (the Site) and are collectively referred to as the Natural Resource Trustees (the Trustees) for the Site. NOAA, the lead administrative Trustee, in consultation with the USFWS and New York, prepared this Revised Draft Restoration Plan and Environmental Assessment (Revised Draft RP/EA).

The original Draft RP/EA was published in the Federal Register on November 9, 2001 and a 30-day public notice and comment period was provided. See Federal Register, Volume 66, Number 218. No public comments were received. The primary difference between this Revised Draft RP/EA and the original Draft RP/EA is that the Trustees now propose to use all or part of an additional $50,000 in natural resources damages which was paid to the Federal Trustees by the Performing Parties Group (an entity composed of cooperating past and current owners, operators and generators who share liability for the releases from the Site, hereinafter referred to as “the PPG”), and set it aside to be used for off-site, compensatory restoration, to supplement the preferred restoration alternative—the North Hempstead Bar Beach Lagoon Project.

The public is invited to submit written comments on this Revised Draft RP/EA to the Trustees. Any and all written comments received on or before August 22, 2002 will be considered. The Trustees will respond to any comments received through revision of this Revised Draft RP/EA, incorporation into the Final Restoration Plan, or by letter to the commentor, after the close of the comment period. The Final Restoration Plan will then be published.

DATES:

The Trustees will accept written comments on the Revised Draft Restoration Plan and Environmental Assessment through August 22, 2002.

ADDRESSES:

A copy of this Revised Draft Restoration Plan and Environmental Assessment is available for review during office hours at the following locations: (1) Michelle Schimel, Town Clerk, Town of North Hempstead, 200 Plandome Road, Manhassett, NY 11030 (516-869-7646); (2) EPA Administrative Records Office, 290 Broadway, 18th Floor, New York, NY 10007 (212-637-4308); (3) Bryant Library, 2 Paper Mill Road, Roslyn, NY (516-621-2240); (4) Port Washington Library, Manorhaven Blvd., Port Washington (515-883-4400); (5) Lisa Holst, Long Island Sound Study Habitat Restoration, NYSDEC Bureau of Marine Resources, 205 North Belle Meade Road, Suite 1, East Setauket, NY (631-444-0469); (6) Steve Sanford , NYSDEC, Division of Fish, Wildlife, and Marine Resources, 625 Broadway, Albany, NY (518-402-8997). It is also available on NOAA's web page (http://response.restoration.noaa.gov/​cpr/​library/​publications.html) or through a link on USFWS's web page (http://contaminants.fws.gov/​Issues/​Restoration.cfm). NOAA will accept written comments addressed to: Lisa Rosman, NOAA/CPRD, via fax to 212-637-4207 or email at [e-mail].

FOR FURTHER INFORMATION CONTACT:

Lisa Rosman, NOAA Coastal Resource Coordinator, at 212-637-3259.

SUPPLEMENTARY INFORMATION:

I. Background

The Applied Environmental Services Superfund Site (the Site), also known as the Shore Realty Superfund Site, is a 3.2 acre area located in Glenwood Landing, Nassau County, New York. Part of the Site is a peninsula surrounded by the waters of Motts Cove and Hempstead Harbor, located off of Long Island Sound. The Site was first used to store petroleum products in 1939. Subsequently, the Site was used for the distribution and storage of chemical solvents and the operation of a hazardous waste facility. Beginning in 1974, numerous organic chemical spills were reported to have occurred, including a 1978 spill of about 3,000 gallons of toluene. Several hazardous substances and materials, as defined by the U.S. Environmental Protection Agency (USEPA), and listed at 40 CFR 302.4, in accordance with Section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), contaminated the soil, groundwater, surface water, sediment, and air of the Site, including toluene, xylene, ethylbenzene, naphthalene, phthalates, and polychlorinated biphenlys (PCBs). See, 40 CFR 302.4. and 42 U.S.C. 9602. In accordance with Section 105 of CERCLA, the USEPA placed the Site on the National Priorities List in June, 1986. See 42 U.S.C. 9605(8)(B) and 40 CFR 300, Appendix B.

In 1991, the USEPA issued a Record of Decision (ROD) for the Site. The selected remedy for the site included: active venting, by vacuum extraction, of contaminated soils; collection of contaminated groundwater and treatment by air-stripping; re-injection of treated groundwater, nutrients, and a chemical source of oxygen, to stimulate natural remediation of groundwater and saturated soils; and treatment of contaminant-laden vapors. The treatment plant has been operating since July of 1995 and will continue operation until site sampling data and analysis show that the performance standards set forth in the ROD are met. The performance standards include: reduction of concentrations of benzene, methylene chloride, and organic contaminants in soils to conformity with applicable state and Federal standards; reduction of contaminants in groundwater to levels equal to or less than the groundwater standards for the State of New York; indirect remediation of Site sediments by treating contamination in other Site media (soils and groundwater) which serve as the source of contaminants to the sediments; elimination of exceedance of ambient air standards over the mudflats of the Site; and elimination of sheen on surface waters to comply with applicable surface water standards.

Under CERCLA, owners and operators of facilities where hazardous wastes were located, and those who generated or transported the hazardous substances, are liable for response costs and damages for “injury to, destruction of, or loss of natural resources,” including the reasonable costs of assessing those natural resource damages (42 U.S.C. 9607(a)). The President of the United States, and the Governor of each state whose resources have been affected by releases from a Site, have the authority to “act on behalf of the public as trustees of such natural resources to recover such damages.” (See 42 U.S.C. 9607(F)(1).) In accordance with CERCLA, the President delegated this Trustee authority to the U.S. Department of Commerce (DOC), and the U.S. Department of the Interior (DOI) (42 U.S.C. 9607(f)(2)). The Secretary of Commerce delegated DOC Trustee authority to the National Oceanic and Atmospheric Administration (NOAA). The Secretary of the Interior delegated DOI Trustee authority to the U.S. Fish and Wildlife Service (USFWS).

The Site is located in Glenwood Landing, Nassau County, New York. Therefore, the Federal Trustees, NOAA and the USFWS, share Trustee authority with the State of New York. The Governor of New York delegated Trustee authority to the New York State Department of Environmental Conservation (NYSDEC).

NYSDEC, NOAA, and the USFWS cooperatively serve as the Natural Resource Trustees (the Trustees) for the natural resources affected by releases of hazardous substances at, or from, the Site. The Trustees are responsible for recovering damages for “injury to, loss of, or destruction of natural resources.” (See 42 U.S.C. 9607 (f)(1). ) The Trustees must use any recovered funds to “restore, replace, or acquire the equivalent of “ the natural resources that have been injured by a release of a hazardous substance (42 U.S.C. 9607 (f)(1)). Approximately 2 to 3 acres of mudflat and saltmarsh cordgrass (Spartina alterniflora) were severely impacted as a result of hazardous releases at and from the Site. The Trustees are in the process of selecting a restoration project to address natural resource injuries and ecological service losses which resulted from the release of hazardous substances from the Site.

In 1992, the United States, the State of New York, and the Performing Parties Group (an entity composed of cooperating past and current owners, operators and generators who share liability for the releases from the Site, hereinafter referred to as “the PPG”) entered into a Consent Judgment settling the liability of the responsible parties under CERCLA for response costs, natural resource damages, and the costs of assessing those damages related to the Site.

Section X of the 1992 Consent Judgment specifically requires the PPG to restore saltmarsh in the mudflats to the east and south of the Site, in Hempstead Harbor and Motts Cove, after it is determined that “ * * * discharges to the shoreline and mud flats adjacent to the Site have been sufficiently abated by the remedial program.” The Consent Judgment specifies that the PPG must plant saltmarsh grasses (e.g., Spartina alterniflora, S. patens, and/or Distichlis spicata) in these areas and may also need to regrade the sediments. If the initial plantings are unsuccessful, the PPG would be required to plant more halophytic grasses to ensure that the vegetation is sustainable and able to support biota, including marine and/or estuarine fish and invertebrate species. However, the Consent Judgment does not require the PPG to physically alter the mudflats (e.g., alter the elevation) to achieve optimal survival of the saltmarsh grasses over the broadest area. The PPG's monetary liability for performance of the on-site restoration is limited to $50,000. The PPG is also required to remit to the Trustees the sum of $60,000 for “the design and implementation of a post-planting monitoring program,” to determine the functional success of the wetlands restoration.

The Trustees have determined, and the PPG agrees, that the restoration actions due to be implemented in areas of the Hempstead Harbor inlet and Motts Cove adjacent to the Site, should be relocated off-Site. The parties have concerns regarding the potential success of on-site restoration, which are unrelated to historical releases of hazardous substances from the Site.

Two major factors have led to this determination. First, there are a number of nearby sources of pollution and debris that impact the original on-site restoration areas. Storm water runoff, from storm water culverts draining the adjacent county road and upgradient areas east of the Site, directly impacts the Hempstead Harbor inlet (the inlet) and Motts Cove. The inlet is a natural collection point for trash and other floating debris in the Harbor. The inlet is not protected from wave action caused by marine traffic and storm events, and is also vulnerable to erosion events. The Motts Cove marsh area is adjacent to a boat marina, and is also a natural collection point for trash and other debris of various sizes, some of which is not readily removable (e.g., large concrete-based dock). The inlet and Motts Cove are subject to trespassing and potential incidental dumping. Second, and of greatest concern to the Trustees and the PPG, the current water levels in the areas of Hempstead Harbor and Motts Cove adjoining the Site do not provide optimum conditions for the long-term survival of a saltmarsh community. Water depths on the Hempstead Harbor side (in the inlet) exceed those required for successful growth of Spartina for a substantial part of the area originally set aside for restoration. All of these factors would reduce the efficacy and acreage of S. alterniflora marsh ultimately restored in the areas. Likewise, the ecological services provided from such a restoration would be less than, or substantially different from, those originally envisioned.

Therefore, the Trustees have decided to seek an alternate restoration project/location to ensure that natural resources and the ecological services they provide are satisfactorily restored. This decision was made for the reasons discussed above, the restrictions set forth in Paragraph X.1. of the Consent Judgment, and the added costs to implement the activities (i.e., debris removal, excavation, fill to grade etc.) that would be required for successful on-Site restoration, but are not required under the terms of the original Consent Judgment. As noted above, under the terms of the 1992 Consent Judgment, the PPG is not required to alter the elevation of the mudflats in order to make the area more suitable for salt marsh grasses, and the costs of altering the elevation would far exceed the PPG's $50,000 liability limit.

In lieu of conducting the restoration actions called for in the Consent Judgment, the Trustees and the PPG have explored other restoration options available in the vicinity of the Site. These options have a high probability of success and would produce ecological benefits at least equivalent to those derived from the restoration project presently required in the Consent Judgment. The PPG has indicated its desire to perform an alternative off-Site project for a cost not to exceed $50,000 (the PPG's maximum liability as specified in the original Consent Judgment). In addition, the PPG participated in the identification and review of potential restoration alternatives, and has agreed to fund the designs costs for the preferred restoration project. The PPG has also agreed to replace a deteriorating bulkhead at the site in order to further remediation efforts.

II. Explanation for a Revised Draft Restoration Plan/Environmental Assessment

The Trustees released a Draft Restoration Plan/Environmental Assessment for the Applied Environmental Services (aka Shore Realty) Site in June 2001. The project and document availability were announced in the Federal Register Vol. 66, No. 218, Nov 9, 2001. No comments were received. This Revised Draft RP/EA primarily differs from the June 2001 version in that the Trustees would like to use all or part of the $50,000 natural resource damage settlement paid to the Federal Trustees for an off-Site enhancement project at the preferred restoration project location. It also reflects the subsequent availability of a draft design document and a draft monitoring plan. Sections updated include site selection, project design, project monitoring and Coastal Zone Management Act.

III. Restoration Alternatives Considered and the Preferred Restoration Project Selected by the Natural Resource Trustees

The Trustees identified three desired characteristics for potential projects: (1) the habitat proposed to be restored must be similar in type to the habitat that was impacted, and potentially provide similar service; (2) the project must be in the same watershed as the impacted wetland; and, (3) the project must provide long-term or perpetual benefits to the impacted resources, including fish and wildlife. Thirteen alternative restoration proposals were considered, including: a No Action alternative, the on-Site, in-kind Restoration specified in the 1992 Consent Judgment, and eleven off-Site, in-kind projects. The Trustees comparatively evaluated each of the proposed alternatives based on seven additional selection criteria: effectiveness, protectiveness, technical feasibility, cross-benefits, collateral effects, consistency, and cost considerations. Details of the alternative analysis can be found in Section 2.2.2.2. of the Draft Restoration Plan and Environmental Assessment.

Below is a description of the preferred restoration alternative selected by the Trustees: the North Hempstead Bar Beach Lagoon Project. If this proposed project becomes final, the Trustees and the PPG will modify the 1992 Consent Judgment to specify that this off-Site project will be conducted in lieu of the on-Site restoration project specified in the 1992 Consent Judgment.

The North Hempstead Bar Beach Lagoon Project would be located in the Town of North Hempstead, on municipal land. The proposed project area is located across from the Site on the western shore of Hempstead Harbor and immediately east of West Shore Road in Port Washington, New York. The proposed restoration site is a 5 +/−acre tidal cove situated within Bar Beach, a park owned by the Town of North Hempstead. The proposed project area consists of a mosaic of intertidal mudflat, sandflat, patchy low saltmarsh dominated by smooth cordgrass, and shellfish beds dominated by ribbed mussel and American oyster. Localized habitat loss and disturbances have degraded the habitat and adversely affected the full functioning of the saltmarsh.

The North Hempstead Bar Beach Lagoon Project will consist of several restoration components. Restoration tasks, listed in order of decreasing significance as determined by the Trustees, will likely include: Saltmarsh restoration, coastal shoreline restoration, Phragmites removal or control, and erosion control through the retrofitting of a culvert. Priorities may change upon input from the contractor selected to design and oversee the project.

The North Hempstead Bar Beach Lagoon Project would improve fish, bird, and shellfish habitat, enhance the detrital export functioning of this tidal community, and provide an opportunity for the public to enjoy this ecosystem due to its proximity to the North Hempstead Trail. Expected improvements include increased vegetative cover derived directly from plantings (approximately 0.6 acre) and indirectly from site enhancement. The latter could augment the density and coverage of the existing saltmarsh (approximately 2 acres). Amelioration of substrate conditions (i.e., reduced erosion, reduced freshwater input) should increase the spatial coverage and/or density of Spartina over current conditions by fostering natural colonization. Habitat quality will improve due to increases in vegetative cover and structural complexity, thereby benefitting macroinvertebrates, fish and birds. Details of the project design can be found in Section 3.2 of the Draft Restoration Plan and Environmental Assessment.

The PPG would be primarily responsible for implementing the project. As noted above, the PPG's liability under the terms of the Consent Judgment is limited to $50,000. The available settlement funds would not be sufficient to address all of the ecological and anthropogenic challenges facing the proposed restoration area. Therefore, the Trustees, the PPG, and the Town of North Hempstead are working cooperatively with each other, and various nonprofit groups, to provide for the funding and implementation of additional projects in the same lagoon which will be conducted with, or complementary to, the North Hempstead Bar Beach Lagoon Project. The PPG has volunteered to pay for the restoration design for the North Hempstead Bar Beach Lagoon Project, in addition to their original $50,000 liability. The Town of North Hempstead has agreed to provide additional funding, goods, and services valued at approximately $59,896. The Town of North Hempstead received a NOAA/NMFS Community Outreach Grant of matching funds to partner with the Trustees and the PPG on the project. The Long Island Wetland Restoration Initiative Group and/or Ducks Unlimited may also contribute to the project or implement complementary projects. This synergy of projects will confer a greater ecological benefit to the natural resources and to the public in a highly cost-efficient manner.

Under the terms of the Consent Judgment entered into in 1992, the PPG also paid $50,000 to the Federal Trustees to compensate for “past injury to, destruction of, or loss of, natural resources,” for the said purpose of “restoring, replacing or acquiring the equivalent of the affected natural resources' at an off-Site location. The Trustees now propose to use all or part of this $50,000 which was set aside for off-Site, compensatory restoration to supplement the budget for the preferred restoration alternative, the North Hempstead Bar Beach Lagoon Project.

The Trustees invite the public to comment on this Revised Draft RP/EA. All comments received on the Revised Draft RP/EA will be considered. The Trustees will respond to any comments received either through revision of this Revised Draft RP/EA, incorporation into the Final Restoration Plan, or by letter to the commentor once the comment period has ended. The Final Restoration Plan will then be published.

This notice does not contain a collection-of-information requirement subject to the Paperwork Reduction Act.

Authority: 42 U.S.C. 4321 et seq. and 42 U.S.C. 9601 et seq.

Dated: July 31, 2002.

Jamison S. Hawkins,

Deputy Assistant Administrator for Ocean Services and Coastal Zone Management.