[Federal Register Volume 67, Number 152 (Wednesday, August 7, 2002)]
[Notices]
[Pages 51231-51234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19972]


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DEPARTMENT OF COMMERCE


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.

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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 [email protected].

[[Page 51232]]


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

[[Page 51233]]

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.

[[Page 51234]]

    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.
[FR Doc. 02-19972 Filed 8-6-02; 8:45 am]
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