STATE ENVIRONMENTAL QUALITY REVIEW ACT

 

NEGATIVE DECLARATION

 

Notice of Determination of Non-Significance

 

Action:            Proposed execution of Settlement Term Sheet setting forth the terms of a settlement of the lawsuit captioned Hudson Riverkeeper Fund, Inc. and Village of Hastings-on-Hudson v. Atlantic Richfield Company, 94 Civ. 2741 (WCC) (S.D.N.Y.).

 

Date:   June 24, 2003

 

This notice is issued consistent with Part 617 of the implementing regulations pertaining to the State Environmental Quality Review Act (“SEQRA”), Article 8 of the Environmental Conservation Law.

 

The Board of Trustees of the Village of Hastings-on-Hudson, as lead agency, has determined that the Proposed Action, to the extent it is subject to SEQRA, will not have a significant adverse effect on the environment and a Draft Environmental Impact Statement will not be prepared.  As noted in the Board of Trustees’ resolution designating itself as lead agency, the Trustees believe that SEQRA is inapplicable for several reasons, including the fact that the effectuation of the cleanup envisioned by the settlement agreement must await the issuance of a final determination by the New York State Department of Environmental Conservation (“DEC”) with regard to remediation of the Site and that the litigation being settled is in the nature of an enforcement action.[1]   Nonetheless, to maximize public input into the process, the Village Trustees have determined to follow the procedures of SEQRA.

 

SEQRA Status:          Type II or Unlisted Action

Location:                    Harbor-at-Hastings Site, 1 River Road, Hastings-on-Hudson, New York

 

Description of Action:

 

A.  Background

 

The Proposed Action is the settlement of a litigation entitled Hudson Riverkeeper Fund, Inc. and Village of Hastings-on-Hudson v. Atlantic Richfield Company.  The Hudson Riverkeeper Fund, Inc. (“Riverkeeper”) and the Village of Hastings-on-Hudson (“Village”) alleged in this litigation, which was commenced in 1994 under the citizen suit provisions of the federal Resource Conservation and Recovery Act (42 U.S.C. § 6972(a)(1)(B)), that polychlorinated biphenyls (“PCBs”) on the approximately 28-acre former Anaconda Wire and Cable Company (“Anaconda”) site along the Hudson River (the “Site”) constituted an imminent and substantial endangerment to human health and the environment.  The defendant in the lawsuit, Atlantic Richfield Company (“ARCO”), purchased the assets of Anaconda and is the current owner of the Site.

 

In addition to being the subject of litigation, the Site is listed on the State Registry of Inactive Hazardous Waste Disposal Sites maintained by DEC pursuant to the Superfund.  Consequently, the Proposed Action integrates its assured remediation with the Record of Decision (“ROD”) that DEC will ultimately issue and that will set forth the State-selected remedial program for the Site. Under the proposed settlement, ARCO is required to implement certain remedial measures that the Village and Riverkeeper have concluded will fully protect the public health and the environment, even if DEC requires less remediation in its ROD.

 

The proposed settlement is the culmination of negotiations that began in early 2002 and continued until the Spring of 2003, when the Riverkeeper, the Village and ARCO executed a Settlement Term Sheet setting forth the basic provisions of the proposed settlement.  That Settlement Term Sheet is annexed hereto as Exhibit A.  Although not required, the Village held a public hearing on the proposed settlement on May 13, 2003 and accepted written comments on the proposed settlement through the close of business on May 27, 2003.  A revised Settlement Term Sheet has been prepared, and is the subject of this Negative Declaration.  In addition, the Village, with the assistance of its consultants, has prepared the Responsiveness Summary, which responds to questions raised and comments submitted by the public on the proposed settlement.  The Responsiveness Summary is annexed hereto and incorporated herein as Exhibit B.

 

B.  The Site and PCB Contamination

 

The approximately 28-acre Site is comprised primarily of historic fill.  From before the turn of the 20th century, it was used for various manufacturing operations.  For many years, continuing until the mid-1980s, Anaconda used the Site for various manufacturing purposes.  Aspects of the manufacturing operations resulted in the release of PCBs on the Site. The extent of PCB contamination was ascertained through an extensive Remedial Investigation (“RI”) conducted by ARCO under DEC auspices pursuant to the State Superfund.  The RI revealed high concentrations of PCBs in the southwest corner of the Site (“Southern Portion”) and in the northwest portion of the Site, particularly along the Hudson River shoreline (“Shoreline Area”) and in the northwest corner (“Northwest Corner”).  The levels of PCBs in the Southern Portion, but most particularly the Shoreline Area and the Northwest Corner, are much higher than the 10 parts per million (“ppm”) concentration that DEC uses as a guideline for subsurface remediation of PCBs. These elevated levels of PCBs in the Shoreline Area, and especially the Northwest Corner, are found up to depths of approximately 40 feet below grade, far below the water table (which is at approximately 12 feet below grade).  In addition to the RI, ARCO also prepared a Feasibility Study (“FS”), again under DEC auspices, of various alternatives for Site remediation.  Both the RI and FS, which have been made available to the public, are incorporated herein by reference.


C.  The Basic Settlement Terms

 

The basic elements of the proposed settlement are reflected in a modified Settlement Term Sheet, which amends the Term Sheet executed in May 2003 by the  Riverkeeper, the Village and ARCO.  The final settlement terms would be memorialized in a Consent Order to be “So Ordered” by the United Stated District Court, and which would be enforceable by the parties to the settlement. 

 

The gravamen of the proposed settlement is the specification of certain primary elements of a cleanup, which would be supplemented by DEC when it issues its ROD selecting the final remedy.  These elements, which are set forth fully in the Settlement Term Sheet (which is annexed hereto and incorporated herein as Exhibit C), are as follows:

 

  1. ARCO would install a new bulkhead of steel sheet pile from the northernmost portion of the existing 330-foot steel sheet pile bulkhead (installed in 2000 along the southern shoreline of the Site) along the entire remaining shoreline of the Site to the northern point where the property meets the Hudson Valley Health & Tennis Club. 
  2. ARCO would install a contact barrier and cover over the entire Site, with this cap consisting of the following (in ascending order from the Site surface):
    1. A six-inch layer of low permeability asphalt, cement or geosynthetics placed on top of an adequately prepared subgrade;
    2. A demarcation layer (e.g., snow fence or equivalent) to indicate no excavation areas;
    3. A four-foot layer of clean fill; and
    4. A six-inch layer of topsoil.
  3. For the entire site, other than the Shoreline Area and Northwest Corner (the remediation of which depends on the remedy selected by DEC in its ROD as set forth in Alternative 1, 2, or 3 below), and three “outlier” data points in the Northern Remainder identified in Paragraph 4(a)(ii) of the Revised Settlement Term Sheet (SB-72, SB-84 and SB-85, all under Building No. 52, where PCB levels range from zero to 180 up to 22 feet below the surface), ARCO would remove all soils containing PCB concentrations greater than 10 ppm and certain identified lead hotspots.
  4. The following alternatives, which are dependent on the remedy required by DEC in its ROD, would govern excavation in the Northwest Corner and Shoreline Area.
    1. Alternative 1:  If the DEC Selected Remedy requires excavation of soils to depths of less than or equal to 7 feet in both the Northwest Corner and the Shoreline Area, ARCO would excavate soils containing PCB concentrations greater than 10 ppm to the extent that such soils are present at depths of up to 7 feet in those areas, even if the DEC Selected Remedy requires excavation to lesser depths. 
    2. Alternative 2:  If the DEC Selected Remedy requires excavation of soils to depths of (i) less than or equal to 7 feet in the Northwest Corner and (ii) less than or equal to 9 feet in the Shoreline Area, ARCO would excavate soils containing PCB concentrations greater than 10 ppm to the depths specified in the DEC Selected Remedy for those areas, provided that the depths specified in the DEC Selected Remedy exceed the excavation depths required in Alternative 1. 
    3. Alternative 3:  If the DEC Selected Remedy requires excavation of soils to depths of (i) greater than 7 feet but less than or equal to 9 feet in the Northwest Corner, and (ii) greater than 9 feet but less than or equal to 12 feet in the Shoreline Area, ARCO would excavate soils containing PCB concentrations greater than 10 ppm to the depths specified in the DEC Selected Remedy. 
    4. Alternative 4:  If the DEC Selected Remedy requires excavation of soils to depths of (i) greater than 9 feet in the Northwest Corner or (ii) greater than 12 feet in the Shoreline Area, ARCO reserves the right to challenge DEC’s Selected Remedy in an appropriate court and/or DEC administrative hearing, and ARCO would seek court and/or administrative approval for a remedy equivalent to Alternative 1, 2, or 3 and to include the construction of the bulkhead described above and slurry wall described below.
  5. ARCO would install a slurry wall or other hydraulic control device of comparable effectiveness and longevity on all upgradient sides of any remaining soils containing PCBs in concentrations greater than 10 ppm in the Northwest Corner and the Shoreline Area.  The slurry wall would connect with the bulkhead and, together, the slurry wall and bulkhead would encircle any remaining soils containing PCBs in concentrations greater than 10 ppm in this area.  ARCO plans to excavate the soils containing PCBs around the three outlier data points in a manner similar to the excavation of the Shoreline Area.  Sheeting will be installed in grids approximately 50 x 50 feet (which might be modified to accommodate any redevelopment), and the soils within that grid would be excavated down to approximately 12 feet (the groundwater table).  The sheeting would go down at least 20 feet below the surface.  At the bottom of the excavations, ARCO would conduct end point sampling to ascertain if soils with PCBs over 10 ppm remain between 12 and 14 feet (because the sampling indicates that elevated levels of PCBs may be at this depth in two of the borings).  After the excavation and sampling is completed on all three outliers, the sheeting would remain in place and the excavations filled with clean fill to the current grade, after which the 5-foot cap would be added.  In addition, if required by DEC, ARCO would install a slurry wall or other hydraulic control device of comparable effectiveness and longevity on all sides of the remaining soils containing PCBs in concentrations greater than 10 ppm at each of the three outlier data points. 
  6. If excavation in the Northwest Corner and Shoreline Area is governed by Alternative 1, 2, or 3, ARCO would be required to maintain the entire bulkhead at the Site, as well as the contact barrier and hydraulic controls, in good and effective condition for a period of 100 years from the completion of the remedy and to provide adequate financial assurance for such obligation
  7. The proposed settlement also provides for a Trust Fund to be established by ARCO for projects that would improve public access, use, or enjoyment of the Hudson River or improve the ecology of the River, with projects in Hastings given priority.  Funding of the Trust Fund would depend on which of the Alternatives described above was selected by DEC in its ROD.  The funding levels of $4.5 million, $3 million, $1 million and $100,000 correspond to Alternatives 1, 2, 3 and 4, respectively.
  8. The proposed settlement would impose certain deed restrictions on use of the site if Alternative 1, 2 or 3 was applicable, including: minimum setbacks from the River for buildings; maximum building heights; proscriptions against construction of detached single family residential dwellings; use of ground water, and new pilings, pillars, or other subterranean support structures penetrating the contact barrier in the Northwest Corner and Shoreline Area or any slurry walls in the Northern Remainder, and new pilings within the sheeting containing the outlier data points; and a requirement that all utilities (except for sewer lines and the underground stream on Site) would be placed above the contact barrier.  In addition, ARCO would dedicate 6.25 acres of the Site as open space, and discuss with the Village the dedication of up to 8 additional acres of open space.           
  9. The Riverkeeper and the Village would dismiss the litigation against ARCO with prejudice and not challenge DEC’s ROD (as the minimum remediation needed to protect the public health and environment is assured), but would have the right to enforce the Consent Order in Court against ARCO in the event of any non-compliance with the settlement.

 

REASONS SUPPORTING THE DETERMINATION OF NO SIGNIFICANT ENVIRONMENTAL IMPACT:

 

The Proposed Action, i.e., the settlement of the litigation, would result in the remediation of PCBs on the Site to a level that the Riverkeeper and the Village, and their respective environmental consultants, have concluded is fully protective of the public health and environment.  Except for the Shoreline Area and Northwest Corner (and the  “outliers”), all soils containing PCBs over 10 ppm would be excavated and disposed of off-site.  In those two areas, soils contained elevated levels of PCBs would be excavated to at least seven feet and, depending on the extent of excavation required by DEC in its ROD, up to nine and twelve feet in the Northwest Corner and Shoreline Area, respectively.  Lead hot spots, which are on the Southern Portion of the Site, would also be excavated.  The excavated areas would be backfilled with clean fill.

 

The entire site would be capped by a six-inch, low-permeability contact barrier, four feet of clean fill and six inches of topsoil, thus providing an overall cap of five feet.  As such, the PCBs remaining in the Shoreline Area and Northwest Corner would be capped by at least seven feet of clean fill and then the five-foot cap, including the low permeability contact barrier.  In addition, the Shoreline Area and Northwest corner would be encapsulated along the bulkhead, the slurry wall (or comparable hydraulic barrier)and the contact barrier/cap, thus preventing any exposure to the PCBs left in the soil and preventing migration of the PCBs through infiltration of rainwater.  The cap would also prevent exposure to metals and polycyclic aromatic hydrocarbons that would be below the contact barrier.  Similarly, the  outliers would be contained within sheeting, and would have at least a 17-foot cap (12 feet of clean fill, the 6-inch contact barrier, the demarcation marker, 4 feet of clean fill and 6 inches of topsoil).  In addition, if required by DEC, ARCO would install slurry walls wall (or comparable hydraulic barrier) around these limited areas. 

 

The remediation would be environmentally beneficial and would not result in any significant adverse impact to the environment.  The Village Board of Trustees has considered relevant areas of environmental concern and the criteria identified in 6 NYCRR § 617.7.  The Trustees’ explanation with respect to particular area of relevance for the Proposed Action follows:

 

The remediation would entail excavation of soil on the Site, its temporary storage, removal and transportation, the crushing of some portions of the structures on site for use as clean fill, and the provision of additional fill for the Site (e.g., topsoil).  The remediation would be conducted consistent with the DEC’s Superfund Program; thus, there would be approved remedial work plans, health and safety plans and similar documents to ensure that the remediation was conducted safely and without endangering the public health and the environment.  There would be a Community Air Monitoring Plan.  ARCO would conduct “real time” monitoring of air quality, to ensure that there is no endangerment to the public from airborne contaminants during the excavation and related work.  Other measures to suppress dust would also be employed.  (See generally the Responsiveness Summary at Nos. 19, 46.)

 

The remediation would be monitored by DEC; in addition, ARCO has agreed to pay the reasonable costs for the Village to retain an independent consulting firm to conduct periodic inspections of the site, monitor the principal elements of remediation, have access to ARCO’s consultants’ data, and conduct similar tasks.

 

There would be some noise from the remediation, as construction equipment would be used to excavate and move soil on the site.  In addition, ARCO might conduct crushing operations on the Site, so that portions of the existing structures could be used as clean fill.  Prior to such use, ARCO would segregate any material that might be potentially hazardous (e.g., asbestos and lead paint) and conduct testing as necessary to ensure that such material did not become mixed into the clean fill to be used as part of the cap.  (See the Responsiveness Summary at No. 31.)  The remedial work would be comparable to construction work; however, most of the major excavation would take place along the shoreline and would thus be removed from the Village.  Typical construction noises are considered to be temporary and do not constitute a significant adverse environmental impact. 

 

Pursuant to the FS, the excavated soil would be dewatered (as necessary) on the Site to comply with transportation and disposal requirements as solid material.  The material will analyzed to determine its characteristics and the concomitant disposal requirements.  The dewatered material would then be shipped by rail to an appropriate disposal facility.  Barges may also be used for this purpose.  Although rail and barge transport are contemplated,  trucks may also be used on occasion to transport the excavated soil from the Site.  These trucks would need to comply with all applicable laws governing the transport of hazardous and/or solid waste; thus, they would be covered to prevent dust, and would be permitted by the State.  In any event, the number of trucks is not expected to cause significant traffic impacts for the temporary period of time involved in the excavation.  Neither rail nor barge use would have meaningful environmental impacts.  To the extent needed, fill material may need to be brought to the Site; again, rail and barge would be used for this transport.  Again trucks may also be used on occasion to transport clean fill or topsoil to the Site.  The number of rail, barge and truck trips would be reduced to the extent ARCO uses materials from structures on site as clean fill.  Moreover, as the settlement provides for a five-foot cap (more than typically required by DEC for containment of non-volatile contaminants), some of the cap would, in effect, reduce the number of trips associated with any future redevelopment of the Site.  The number of truck trips is not expected to cause significant traffic impacts during the limited time that clean fill or topsoil would need to be brought to the Site.   Overall, therefore, the truck trips attendant to the proposed settlement and remediation of the Site would not have significant traffic and related impacts (air, noise or neighborhood character), as any such impacts would be temporary in duration.

           

No significant impacts to natural resources are expected.  The remediation would prevent contaminated soils from reaching the River and thus improve environmental conditions.  The remedial activities would need to be undertaken consistent with a DEC-approved Health and Safety Plan, which would include stormwater management measures to prevent runoff containing contaminated sediments from entering the Hudson River. In addition, before excavation of the Northwest Corner and Shoreline Area could proceed, sheeting would be driven around areas to be excavated and dewatering, as necessary, to prevent any migration of contaminated groundwater to the River.

 

Although the Hudson River is designated as a Critical Environmental Area, the settlement would not impair the reasons for its designation.

 

The proposed settlement would not create any material conflict with the Village’s existing land use plans or goals.  The settlement would not be inconsistent with the Marine Waterfront District that could apply to the Site if certain conditions were met.  Nor would the cleanup envisioned by the proposed settlement be inconsistent with Village Planning goals or policies.  In fact, the proposed settlement specifically takes into account the conceptual redevelopment plan that was developed by the Regional Planning Association (“RPA”), with the participation of the Village, for the Site (A Redevelopment Plan for the Hastings-On-Hudson Waterfront, Fall 2001).  The deed restrictions, open space provisions and other provisions of the settlement would not preclude implementation of the conceptual development set forth the in RPA plan.

 

The Village’s Local Waterfront Revitalization Plan identifies as a policy “[p]reserv[ing] historic resources” (Policy 13), and it also identifies the following as key policies: fostering the redevelopment of the riverfront (Policy 1), “[p]rotect[ing] and restor[ing] ecological resources” (Policy 5), “[p]rotect[ing] and improv[ing] water resources” (Policy 6), and “[m]inimiz[ing] environmental degradation from solid waste and hazardous substances and wastes” (Policy 10.)  Thus, the Plan contemplates a balancing between preserving the historical industrial nature of the site and ensuring that public health and safety are fully protected. 

 

Some of the structures that were on the Site have been demolished.  Some of the structures remaining on the Site reflect its historic industrial usage and character, including the water tower along the northern shoreline and the former administrative building.  As explained in the Responsiveness Summary (No. 73), the remediation contemplated by the proposed settlement would require the removal of some of these structures.  For several buildings, their location would preclude implementation of key components of the necessary remediation, including installation of the bulkhead and slurry wall.  Others would interfere with staging and other operations needed to implement the remediation.  Others are of doubtful structural integrity and would not be likely to survive the remediation, including the need to add fill inside and outside to implement the five-foot cap.  It is also likely that preservation of certain buildings with filling of up to five feet (or more for ultimate development) would unduly restrict any future efforts to develop the site, and thus themselves have adverse land use impacts.

 

Despite the difficulty of preserving any buildings or the water tower, ARCO has agreed to study whether preservation in place is plausible for the water tower, the administration building, and Building Nos. 51 and 52.  In addition, ARCO has agreed to consider whether, alternatively, the facades of any of these buildings could be saved and reused, although this appears unlikely due to issues of structural integrity.  While the Trustees would participate in this endeavor, they nonetheless find that the demolition of the on-Site structures for the remediation would neither contravene the Local Waterfront Revitalization Plan nor constitute a significant adverse impact on important historical or aesthetic resources.  However, as noted, requiring preservation of on-Site buildings could interfere with the redevelopment of the Site, and thus have adverse impacts on the Village’s land use planning.

 

Finally, the proposed settlement would advance, not endanger, public health by resulting in the remediation of the contamination on the Site in a manner that would ensure the public health and safety and protect the environment.

 

FOR FURTHER INFORMATION

 

Contact Person:

 

Neil P. Hess

Village Manager, Village of Hastings-on-Hudson

7 Maple Avenue

Hastings-on-Hudson, NY 10706

(914) 478-3400

 

2013\negdec.6.24.03



[1] The Trustees note that under State law, a State-ordered cleanup under Environmental Conservation Law, Title 27, Article 13 (the State “Superfund”) is exempt from SEQRA.  The logic of that exemption applies with equal force to the settlement of a litigation that results in a Superfund-type remediation.