Responsiveness Summary from Public Meeting on Proposed Settlement

June 24, 2003

 

The Cap/Contact Barrier

 

1.      Has anyone considered what magnitude of earthquake would be necessary to disrupt an asphalt contact barrier?

 

Ø      The Term Sheet for the proposed settlement provides that “a six (6) inch layer of low permeability asphalt, cement, or geosynthetics” shall be used as the bottom layer of the overall cap (which includes the contact barrier, demarcation layer, clean fill and topsoil).  What material is ultimately required will be decided by the New York State Department of Environmental Conservation (“DEC”) when it issues its Record of Decision (“ROD”).  The consideration of design standards that would be necessary to withstand earthquakes and other such phenomena would be undertaken as part of the final design stage for the remediation, which will be contained in the Remedial Design/Remediation Action (“RD/RA”) Work Plan that is prepared by ARCO and would be subject to the review and approval of DEC. By default the bulkhead will have to be designed to meet minimum requirements for impacts and stresses that meet or exceed seismic criteria, and the State Building Code, like most building codes, requires that structures meet minimum requirements for seismic activity depending on the structure.

 

2.      How would new sewer lines be connected to those existing below the contact barrier? How would the sewer lines below the contact barrier be accessed in the event of a backup?  Would the contact barrier have to be breached?

 

Ø      The sewer line is located east of the so-called containment area – the area containing PCBs in soil in excess of 10 parts per million (“ppm”) that will be contained by the bulkhead and slurry wall area.  Thus, it should not be necessary to breach the contact barrier on this portion of the site, which should be maintained to the maximum extent practicable to prevent any precipitation from entering the soil beneath the contact barrier and causing any migration of PCBs.

 

Ø      In the event a connection is required, manholes would be installed in the contact barrier, and it may thus be possible to avoid breaching the contact barrier by inserting a “snake” through the manholes to remedy backups in the sewer line.  However, in some cases the contact barrier may have to be breached to permit access to the existing sewer lines and subsequently resealed.  In that event, the location of the existing connection would be noted through a survey or similar method.  The method used to breach the contact barrier and reseal it (if necessary) would be part of the Construction Health and Safety Plan (“HASP”) that would be approved by DEC as part of the RD/RA Work Plan. Generally, the breached area would be sealed with a bentonite slurry or similar material that expands when wetted to assure closure of the breached area.

 

3.      The deed restrictions should include an explicit prohibition against disturbing the materials below the demarcation layer without advance submittal and approval of a plan describing the work to be performed, adherence to a health and safety plan and material handling plan, submittal of a post-construction report, including as-built plans identifying any utilities, and an account of any unusual circumstances encountered during the work.

 

Ø      Initially, the only disturbance of the demarcation layer that may occur, other than from the driving of piles, is to connect to the existing sewer main or to perform repairs on the main.  The DEC, in its ROD, will typically include deed restrictions that prohibit the disturbance of the site below the demarcation layer unless the work is specially approved by DEC and DOH and is consistent with a DEC/DOH pre-approved HASP, which takes into account the handling of contaminated soils that may be encountered.  Although DEC does not necessarily require the submission of post-construction reports, the Village will request that such a provision be included in the HASP.  If there are utility connections made, those plans would be filed in the offices of the appropriate utility and the Village.

 

4.      Will anyone monitor trees planted on the site to ensure that their roots have not pierced the contact barrier? How could this be monitored?

 

Ø      Any plantings on the site would consist of varieties with shallow roots that would not be capable of penetrating to the depth of the contact barrier.  The purpose of selecting shallow rooted plants for this type of remedial activity is to eliminate the future need for monitoring of the contact barrier integrity. This is particularly important in the containment area, for the reasons noted above.  It is not as important in the remainder of the site, as the PCBs left in the soil would not exceed 10 ppm (with the exception of the three “outlier” data points in the Northern Remainder) and would, in any case, not move upward under site conditions.  (See the response to No. 5, below.)  Similarly, the metals and polycyclic aromatic hydrocarbons (“PAHs”) in the soil would not volatilize and move upward through any breach in the contact barrier.

 

Ø      The only way to effectively monitor the contact barrier would be to excavate and visually inspect the rooted plants for any breach in the contact barrier. However, excavation to visually inspect may damage roots and could impact established plants resulting in their destruction, and thus, is not considered practicable.  Monitoring of groundwater might be utilized to ascertain if there were any breaches in the contact barrier, particularly in the containment area.  (See the response to No. 5, below.)

 

5.      How could it be determined if there was any breach in the contact barrier below any buildings constructed on the site?

 

Ø      DEC will determine any monitoring to be undertaken to ensure that the contact barrier continues to perform its function.  In this respect, PCBs, as well as the metals and PAHs in the site soils, will not volatilize into the air under a low permeability contact barrier, and would not move upward toward the ground surface.  Thus, the contact barrier, even if breached in limited respects, would continue to serve its basic purpose of capping these substances so as to avoid exposure pathways.  Nonetheless, DEC could require some type of groundwater monitoring, which would reveal a change in conditions (e.g., an increase in the level of dissolved PCBs in the groundwater) that would indicate a material breach of the contact barrier that would allow rainwater to percolate downward and transport residual contaminants to the upper aquifer.  Additionally, any poured concrete footings or foundations would act as a second contact barrier and provide another layer of protection.

 

6.      Did anyone consider using geotextiles instead of asphalt for the contact barrier?

 

Ø      Initially, it is important to remember that the Term Sheet provides for a six-inch layer of low permeability asphalt, cement, or geosynthetics.  DEC could require the use of geotextiles or other material in lieu of asphalt, and it could impose differing requirements of permeability.  However, there is some concern by the Village and Riverkeeper’s consultants that geotextile membranes would be more vulnerable to being pierced or otherwise compromised due to the quantity of cobble and other rough materials that exist in the historic fill, and that could also exist in any clean fill placed on the site. This is why the term sheet identifies asphalt as one option, but does not limit the contact barrier to that material.

 

7.      Asphalt should not be used as a contact barrier because: it contains PAHs, which are contaminants of concern; it is hydrophobic bituminous product derived from oil refining and/or coal tar, and would block the passage of water and prevent drainage of the site; it could, over a long time period, extract PAHs upward into the clean fill above the contact barrier; it is brittle and will be subject to low temperatures; and it is ductible, and could thin out due to uneven weight loads imposed by buildings.

 

Ø      Although asphalt does contain PAHs, they are not released in any significant concentrations unless the material is put through a crusher or similar process.  The installation of asphalt or other low permeable surface would not prevent drainage of the site and cause an upward movement of PAHs because there will be a stormwater management system installed above the contact barrier, as required, to assure proper drainage and runoff.  Because asphalt is ductile, it is unlikely to crack due to low temperatures.  Moreover, the asphalt would be located below the frost line, and thus would not be subject to the freeze/thaw conditions that could otherwise cause it to crack.  Finally, while the asphalt might thin out somewhat due to uneven weight loads imposed by buildings, it would still serve its function as a contact barrier.

 

8.      Why would there only be 6 inches of topsoil? Is that enough to support any plantings? Will the topsoil fall into void space in the clean fill that will be beneath it?  Six inches of topsoil on top of clean fill is not enough over any areas that will not be covered by impermeable surfaces.

 

Ø      Six inches should be a sufficient quantity of topsoil to support the types of shallow root plantings that are anticipated would be planted on the site (e.g., grass) at the completion of remediation.  However, additional fill would likely need to be placed on the site by any developer to support future development.  It is possible that additional topsoil would also be placed on the site by a future developer.  To allow for this occurrence, ARCO has agreed to coordinate the placement of topsoil with redevelopment plans, to the extent allowed by DEC.  The design of the cap should include a provision for compaction of the clean fill before the addition of topsoil, thus preventing the topsoil from falling into void spaces.

 

Ø      The Term Sheet provides that the entire site would be covered with a five-foot cap that would include as its first layer a six-inch contact barrier consisting of asphalt or similar material.  (See also the response to No. 10 below.)

 

9.      Why is the same cap being used over the entire site?  Have the experts considered using one remedy for where PCBs would remain and another for other portions of the site?  Why isn’t the cap being kept to a minimal area?

 

Ø      The overall five-foot cap, including contact barrier, would be placed over the entire site to ensure the lack of any exposure routes to the soils containing metals, PAHs, and PCBs over 10 ppm that would be left in the site soils.  DEC may require that the contact barrier be more or less permeable in different areas of the site, depending on the remedy in the ROD; this would not prevent effectuation of the settlement agreement. There are multiple remedies being used on the site under the settlement.

 

Ø      The settlement terms are based upon the extensive sampling undertaken at the site, under the auspices of DEC.  Based on these data, ARCO has agreed to an excavation remedy that would remove PCBs in concentrations above 10 ppm from the vast majority of the Site – all areas except the Northwest Corner and the Shoreline Area and three “outlier” data points in the Northern Remainder.  The three outlier data locations are SB-72, SB-84 and SB-85, all of which are under Building No. 52.  PCB levels at these points range from zero to a maximum of 180 ppm, at depths up to 22 feet below the surface (and well below the water table).  ARCO plans to excavate the soils containing PCBs around the 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 DEC requires further containment of these low levels of PCBs, ARCO will contain any PCBs above 10 ppm with a slurry wall or comparable hydraulic barrier (which would go to the bottom depth of any remaining PCB contamination over 10 ppm), and piling or other subsurface structures would be prohibited from penetrating those slurry walls or comparable barriers.  The deed restrictions would be modified to preclude the placement of piles in SB-72 and SB-85 and, if there are PCBs below 12 feet below grade in SB-84, in that area as well.

 

Ø      Consultants for both the Riverkeeper and the Village have concluded that this remedial approach to these outliers would protect the public health or the environment, particularly because the soils containing PCBs above 10 ppm would be covered by at least 17 feet of fill and the low permeability contact barrier.[1]

 

Ø      ARCO will also excavate limited areas of lead hotspots.  In addition, in the Northwest Corner and the Shoreline Area, ARCO has agreed to excavate at least seven feet of soil containing PCBs in concentrations greater than 10 ppm (and as much as 12 feet in some areas, depending on the ultimate selection of a remedy by DEC).  This will substantially reduce the quantity of PCBs remaining in these areas.  Following this excavation remedy, the entire site would be capped with a five-foot cap consisting of a six-inch contact barrier, four feet of clean fill, and six inches of topsoil.

 

Ø      The Village and Riverkeeper’s experts have considered other possible remedies, and agree that in situ (i.e., in place) treatment of the PCBs would not be effective and that removal of all contaminated soil is neither practical nor feasible (because, as discussed further in response to No. 28, below, it would effectively eliminate the site).  It is not feasible to use a “tiered” or differentiated contact barrier (i.e., a contact barrier that is at varying elevations over different portions of the site) without undermining the contact barrier’s integrity. A tiered differential contact barrier would subject the contact barrier to stresses that could easily cause a breach, particularly at horizontal and vertical intersections of the contact barrier and thus is not recommended.

 

10.  Similar capping technology has failed at other sites and thus the proposed settlement would not protect public health and the environment.   

 

Ø      The article provided with this comment is inapplicable to the cap system that is part of the settlement for at least several reasons.  First, the article criticizes capping systems that are used at RCRA facilities when the unsaturated zone or the dry area above the groundwater is what is contaminated, as the author asserts that moisture entering the unsaturated zone (under a cap) will contaminate the groundwater.  That is not the factual scenario at the ARCO site.

 

Ø      The unsaturated zone and other soil above the groundwater table at the site, except within the containment area, would be cleaned to no more than 10 ppm PCBs; remaining contaminants are already in contact with groundwater.  Groundwater data at the site shows that the contaminants are not soluble.  In the article, it is assumed that water/moisture will enter the unsaturated zone, and that the contaminants will then become soluble and contaminate the underlying groundwater in the saturated zone. This concern does not apply to the site and its  geologic or hydraulic characteristics.

 

Ø      Second, monitoring wells are typically placed at distances surrounding RCRA caps to assure that leachate collection systems (which are commonplace components of RCRA caps) are working, and to assure that any contaminated groundwater is not leaving the site. In many of these cases and at RCRA C and D sites, contaminated groundwater and leachate is often collected and treated or trucked off-site for treatment.  At the ARCO site, the groundwater contamination is limited to suspended soils or solids within the groundwater, and areas containing soils with more than 10 ppm of PCBs after remediation will be contained between a slurry wall and bulkhead, or only a slurry wall.  Thus, the contaminated suspended material in the groundwater is effectively encapsulated and cannot migrate off-site.

 

Ø      Thus, the concern in the article about the loss of integrity of the contact barrier is not applicable to the site for the reasons noted above.

 

11.  I am concerned about the permeability of asphalt, and that contaminants could migrate up through the contact barrier.

 

Ø      See the responses to Nos. 5 and 6, above.  The reason for the contact barrier, as explained above, is to prevent exposure to the residual contaminants remaining in site soils in limited areas of the site, and asphalt is of more than sufficient impermeability to achieve that objective.  An article published by the Asphalt Institute reports a permeability rate of asphalt environmental contact barriers of 6 x 10-11 cm/sec.  (See “Asphalt Used for Environmental Caps in Texas,” Drs. Jean M.E. Audibert and Laurence R. Lew, Asphalt, The Magazine of the Asphalt Institute, Winter 1991/1992, Vol. 5, No. 3, p. 14.)  This value far exceeds regulatory requirements for asphalt contact barriers, which are generally at most in the 10-7 range.

 

12.  Would the integrity of the asphalt contact barrier be compromised by the heavy load of the four feet of clean fill and new buildings constructed on the site?

 

Ø      A six-inch layer of asphalt or similar material should be adequate to sustain the load of additional fill.  Any substantial new building would be supported principally by piles rather than by the contact barrier itself.  However, this is an element that will be considered as part of the development of the RD/RA Work Plan, and will be subject to DEC review and approval.

 

13.  What does the term “adequately prepared subgrade” in paragraph (3)(a) of the Term Sheet mean?

 

Ø      An “adequately prepared subgrade” would be one that is properly graded and of a suitable material to support and form a tight barrier with whatever material is used as the six-inch layer below the four feet of clean fill and six inches of topsoil.  For example, if the material that is ultimately required by DEC were geotextiles, a material with a finer consistency than the existing fill (which contains large cobble) would likely be necessary to ensure that the geotextile membrane would not be pierced.  The typical substrate for asphalt is gravel.

 

14.  Why isn’t there any provision for drainage pipes in the Term Sheet to prevent flooding or saturation of the fill and soil on the site?

 

Ø      After DEC selects a final remediation, the RD/RA Work Plan developed to implement the remedy will include a stormwater management plan to ensure that flooding does not jeopardize the effectiveness of the remedy, including the installation of a cap.

 

15.  I am concerned that the four feet of clean fill could absorb the six inches of topsoil.

 

Ø      See the response to No. 8 above.

 

The Remediation

 

16.  Why aren’t other contaminants (i.e., other than PCBs and lead) being addressed?

 

Ø      Because PCBs are by far the most significant contaminant at this site, both in terms of the degree of contamination and in terms of ecological and environmental concerns, the litigation instituted by the Riverkeeper and the Village was limited to PCBs.  Thus, the settlement focuses primarily, although not exclusively, on these substances, and requires excavation of soils containing PCBs in concentrations greater than 10 ppm throughout the vast majority of the site, with PCBs remaining only at depths greater than 7 feet (at a minimum) in the Northwest Corner and Shoreline Areas.  The settlement also contemplates limited removal of hot spots of lead contamination.  More importantly, the 5-foot cap would cover the residual PCBs and other remaining constituents on the site, and provide more than ample protection for public health and the environment.

 

17.  The Term Sheet doesn’t contain any mention of a Health and Safety Plan.  Would one be developed?

 

Ø      After DEC issues a ROD selecting the final remedial program, the RD/RA Work Plan for the implementation of the remedy would include a HASP.

 

18.  I am concerned that paragraph 1 of the Term Sheet leaves the site remedy to ARCO’s discretion.

 

Ø      The remedy to be implemented for the site will be determined by DEC, not ARCO.  ARCO will have the opportunity to present its recommended method to carry out the DEC-selected remedy, but DEC ultimately has the final authority to determine how that remedy will be implemented.  Regardless of the DEC-selected remedy, ARCO is required to support and implement at least the primary levels of excavation, the cap and the hydraulic controls contained in the settlement.

 

19.  I am concerned about the risk from airborne contaminants, particularly during the excavation and construction stages.  What, if anything, would be done to protect public health?

 

Ø      As is standard, DEC will require that a community monitoring program be conducted during site remediation (and likely construction) to ensure that dust containing contaminants does not exceed specified levels established by the New York State Department of Health (“DOH”).  DEC typically requires site and remediation-specific implementation of the DOH’s Community Air Monitoring Plan (the Generic Community Air Monitoring Plan is annexed hereto as Exhibit “A”).   In addition, ARCO will be required by DEC to use methods to minimize the formation of dust, such as periodic wetting down of the soils.  These and other measures to minimize dust would also ensure that PCBs do not pose a risk during excavation, as PCBs are generally adsorbed to the surfaces of dust particles.

 

20.  It is important to perform a risk analysis in designing a remediation for the site.  Did the engineers consider the models that exist with respect to capping as a remedial measure?

 

Ø      The federal and state criteria for the cleanup of PCBs and other contaminants are based on risk analyses.  The criteria are 1 ppm at the surface and 10 ppm below the surface.  These levels form the basis of the remedial scheme that is contained in the settlement, i.e., the removal of the vast majority of soils containing PCBs at concentrations greater than 10 ppm, and the complete encapsulation of any remaining PCBs at concentrations greater than 10 ppm by a slurry wall, bulkhead, backfilling of excavated areas with clean fill, and five-foot cap.

 

21.  Have the experts considered bioremediation and capping as an alternative remedy?

 

Ø      Bioremediation is not an appropriate remedy for PCBs because the microorganisms that are used in the bioremedial process are not capable of decomposing PCBs.

 

22.  What would happen to the PCBs after they are excavated? How far away from Hastings would they be transported?

 

Ø      All excavated soils containing PCBs would be transported to an approved disposal site a significant distance from Hastings.  For example, several disposal sites that would likely be considered are located near Buffalo, New York or in Pennsylvania.

 

23.  What health authorities will be consulted concerning the remediation?

 

Ø      DOH would review and comment as part of the development of the RD/RA Work Plan for the site.

 

24.  What is the timetable for actual remediation to begin?

 

Ø      That depends on when DEC issues its proposed remedial action plan (“PRAP”), and how the process proceeds thereafter.  It is the Village’s understanding that DEC is very close to issuing a PRAP.  There will then be an opportunity for public comment, following which DEC will issue its ROD.  Assuming ARCO does not challenge the ROD, it would then develop its RD/RA Work Plan under the oversight and subject to the approval of, DEC.  Remediation would begin once a final Work Plan is approved.

 

Ø      The Village and/or Riverkeeper have the right to go back to federal court if the cleanup does not occur within a reasonable timeframe.  For example, if DEC has not issued its ROD within one year of the date of the Consent Order embodying the settlement, the Village and/or Riverkeeper may go back to federal court to seek a schedule for prompt implementation of a remedy.

 

25.  I am concerned about the health of my children, particularly during the excavation stage.  What will be done to protect them from exposure to contaminants from the site?

 

Ø      See the response to No. 19 above for a discussion of precautions that will be taken during remediation.  The types of dust control measures that will be employed at the site have been used successfully at numerous polluted sites to prevent community exposure during cleanups.  It should also be remembered that the areas of the site containing the highest PCB concentrations are located on the River -- the furthest distance from the Village.

 

26.  Has the use of bioremediation or chemical remediation by oxidizing and reducing agents for PAHs on the site been considered?

 

Ø      As noted, because the most significant contaminant, by far, at the site is PCBs, this was the only contaminant addressed in the Village and Riverkeeper’s lawsuit. The contact barrier will provide significant protection against PAH contamination. Moreover, bioremediation of PAHs is only effective on PAHs that tend to be more volatile. In the case of this site, the PAHs are most likely tightly bound to organic material at the site, silts and clays, and thus would not be amenable to effective bioremediation.  The use of oxidizing or reducing agents is not feasible for several reasons.  First, the soil conditions should be such as to allow a reasonable assurance that the agents would actually reach the PAHs.  The fill on the site is not homogeneous and contains remnants of piles, old structures and other materials, and thus there is no way to assure that the agents, if applied, would actually reach the PAHs.  Second, there would be no way to add additional agents, which is invariably required, or to monitor progress, without numerous well points or similar installations, all of which would need to pierce the contact barrier, thus lowering its effectives as a barrier.  Thus, these types of remediation are not feasible for PAHs given site conditions and the installation of a low permeable contact barrier as part of the remedial program.  In any event, as discussed in the response to No. 5 above, the required 5-foot cap would cover any PAHs remaining on the site and thus eliminate any risk of human exposure.

 

27.  Has the use of apatites (calcium phosphates) to bind insoluble lead been considered as remediation?

 

Ø      As noted, because the most significant contaminant, by far, at the site is PCBs, this was the only contaminant addressed in the Village and Riverkeeper’s lawsuit.  Although the settlement includes the removal of lead “hot spots,” further consideration was not given to remediation of lead.  In any event, the application of apatites would be infeasible for the same reasons proscribing the use of oxidizing or reducing agents for PAHs, discussed in the preceding response.

 

28.  I believe the Village should have insisted on total excavation rather than partial excavation and capping.  A memorandum from the Village’s consultants and comments from a SUNY professor indicate that it may be possible to excavate to a sufficient depth to remove all the PCBs. 

 

Ø      The Riverkeeper and Village’s experts considered in detail the option of total excavation of PCBs at the site.  They determined that total excavation of PCBs was neither feasible nor appropriate for a number of reasons.  The deepest concentrations of PCBs on the site are at depths of approximately 40 feet and are located closest to the River.  Due to the depth of groundwater on the site, dry excavation would not be possible below approximately 12 feet.  Rather, it would be necessary to do wet excavation, which would require a dewatering system and would lead to the creation of both liquid and solid hazardous waste.  It is not clear this could be done in such a way as to prevent the risk of wet contaminated soils entering the River.  Most importantly, because the site is located on historic fill, excavation to the limits of PCB contamination would likely cause the entire site to collapse into the River.

 

Ø      The memorandum referred to in the comment was, as it states, the result of a brief review by a staff member of Malcolm Pirnie of a Peer Review Summary Report prepared by ARCO with respect to the potential for excavation to remove all of the PCBs in the northwest corner. This summary memo was an initial, preliminary reaction, before conducting any detailed engineering or similar studies.  That is why the memo states that the author had made a “brief review” of the Peer Review Report, and indicated that several engineering methods had the “potential” to allow the deep excavation necessary to removal all PCBs.

 

Ø      Malcolm Pirnie conducted an in-depth feasibility evaluation of the potential for excavation to the 40 foot level using sheetpiling and found it was not possible without relieving the artesian pressure at the bottom of such an excavation.  Malcolm Pirnie identified conceptual approaches that might allow an excavation to this depth and lessen the concern about artesian pressure and collapse and considered the risks associated with such deep excavation, which include the collapse of the entire site into the River, particularly as a result of “bottom heave” or “blowout” due to artesian pressure.  Such a collapse would have dire environmental impacts upon the River and aquatic life along the Hastings shoreline.  In addition, such a deep excavation would create a risk of cross-contamination, allowing PCBs to enter the uncontaminated basal sands layer and deep groundwater.  In the opinion of both Malcolm Pirnie and Carpenter Environmental Associates, these and other risks outweighed the benefits of deep excavation and complete removal, particularly because the isolation of the remaining PCBs over 10 ppm by the bulkhead and slurry wall would provide adequate protection to the public health and environment.

 

Ø      The comments from the SUNY professor were based upon general concepts, as he noted his lack of any familiarity with the site.  The first set of comments apparently preceded his review of the Term Sheet of the proposed settlement.  Much of this first set of comments is based upon the supposition that the site is a landfill, which is incorrect.  The site contains fill, but was not used as a landfill for the disposal of degradable materials; if it were, some of the concerns raised by the general comments might be applicable. For example, the concern about PCBs becoming more mobile in landfills where anaerobic conditions are likely is not applicable to the site, where such conditions would not be expected.  The comment also expresses doubt about the viability of containment, such as envisioned by the slurry wall and bulkhead, over the long term, as there are, in the commenter’s view, insufficient studies to demonstrate the long-term effectiveness of such mechanisms.  Thus, complete removal of the PCBs is recommended.  However, even though such a removal might be technically possible, the risks associated therewith, as noted above, have been found by other experts to outweigh the benefits. Although the commenter expresses doubt about the ability to monitor effectively to determine whether PCBs are migrating from the site, he was apparently unaware that there is likely to be remediation of the sediments adjacent to the site; thus, monitoring could include sampling of the sediments adjacent to the site to ensure that PCBs are not escaping from the site to the River.  Finally, the commenter acknowledged, after reviewing the Term Sheet, that the remedy in the settlement “might be the most sensible alternative.”

 

29.  PCBs can induce aerobic conditions and become mobile.  Have the experts considered using steel sheeting to prevent migration of PCBs into the River in addition to a slurry wall?

 

Ø      Existing scientific understanding does not support the conclusion that PCBs can induce aerobic conditions and thereby become mobile.  In any event, the bulkhead would in fact be constructed of interlocking steel sheeting.

 

30.  How deep would the slurry wall go?  The vertical depth should be made explicit in the final settlement document.

 

Ø      The parties’ intent is to take the slurry wall to the bottom depth of any remaining PCB contamination over 10 ppm in the Shoreline Area and Northwest Corner following excavation.  This will be made explicit in the order on consent.

 

31.  I do not believe that clean fill as defined in the Term Sheet would be clean enough to be conducive to park development.    ARCO should be required to monitor the quality of the incoming fill materials or to police their origins.

 

Ø      Clean fill is defined in paragraph 3 of the Term Sheet by reference to the DEC regulations contained in Part 360 of Title 6 of the New York Code Rules and Regulations (“NYCRR”).  Section 360-7.1(c)(4) provides that “uncontaminated” construction and demolition (“C&D”) debris may not be contaminated with any hazardous or industrial waste.  Under 6 NYCRR § 360-1.2(b)(38), C&D debris may not include garbage or any hazardous materials.  Therefore, the clean fill would not present any hazards to public health or the environment, and would be conducive to park development.  Under the Term Sheet (and likely under DEC’s ROD), ARCO would be required to ensure that any fill coming onto the site would meet this definition.  ARCO has further indicated that, prior to using any portions of the buildings on site for fill, it would segregate potentially hazardous materials (such as asbestos and lead-painted matter), conduct characteristic testing as needed, remove and dispose of unsuitable material, and then crush the remaining material for reuse on the site. In addition, the clean fill at the site would be covered by at least six inches of topsoil, which, as noted in response to No. 7 above, would likely be above additional clean fill that would need to be placed on the site by any future developer. It should be noted that ARCO has a financial incentive, apart from the Village’s, to assure that any material placed on the site meets the terms of the settlement and the ROD.

 

Ø      Finally, DEC will monitor remediation.  Assuming that the ROD, as anticipated, requires some cap on the site, DEC will impose requirements on ARCO for the type of fill and monitoring thereof.  The Village will request ARCO to agree to comply with those same conditions for any cap required by the settlement that exceeds that mandated by DEC in the ROD.

 

32.  The risk of exposure can be mitigated by providing that there be two feet of topsoil over the fill in all areas that are not under low permeability surfaces.  If this is too expensive, there should be an intermediate layer of cleaner material, such as sand, between the C&D and the landscape layer.

 

Ø      Initially, as noted in the preceding response and in response to No. 8 above, it is likely that any future developer would put additional fill on top of whatever fill is placed on the site by ARCO on most of the site to meet floodplain regulations for development and to support both structures and landscaping.  It may be possible to address the nature of that material at the time a specific development proposal is advanced.  However, there will be a minimum of 4½ feet of clean fill and topsoil over the low permeability contact barrier, which will prevent exposure to soils under the contact barrier that contain contaminants.

 

33.  ARCO should not be allowed to crush and size C&D debris on site because of the potential for contamination in the existing materials on site becoming airborne.  Instead, to the extent needed, construction aggregate should be imported from off-site.

 

Ø      No on-site materials would be allowed to be used as fill material unless they met the definition of “clean fill” as set forth in response to No. 31 above.  In addition, as discussed in response to Nos. 5 and 19 above, monitoring for air contamination would be required during the remedial process.  In addition, the importation of construction aggregate from off-site would generate traffic on Village roadways, which would have an adverse impact on air -- especially from diesel exhaust.

 

34.  Would there be any contact barrier installed at the limits of the excavation?

 

Ø      All excavated areas would be backfilled with clean fill as described in the previous answer to the original site grade.  This means that, under the settlement, in those limited areas in the Northwest Corner and Shoreline Area where PCBs remain in concentrations greater than 10 ppm, there will be at least 7 feet of clean fill between the remaining PCBs and the beginning of the five foot cap.  The entire site would then be covered with the five-foot cap, which consists of six inches of a low permeability material such as asphalt, a demarcation layer, four additional feet of clean fill and six inches of topsoil.

 

35.  Is the Village giving up its right to seek a more stringent remediation?

 

Ø      The proposed settlement would not provide any reason for the Village to seek a more stringent remediation.  Under the Term Sheet, ARCO is committed to perform no less than the minimum cleanup, including excavation to 7 feet in what are termed the Northwest Corner and Shoreline Area, removal of all PCBs greater than 10 ppm in the remainder of the site, and installation of the bulkhead, the slurry wall and the cap, even if DEC requires less than 7 feet of excavation in those areas.  This remediation has been deemed by the Village and Riverkeeper’s experts to be fully protective of human health and the environment.  The Village would not have the right to challenge any remediation mandated by DEC that exceeds the highest excavation levels in the Term Sheet, but would have no reason to do so given this expert conclusion. The parties agree, however, that if DEC’s ROD (though highly unlikely) precluded the minimum cleanup under the settlement, the parties (or any one of them) could go to court to seek to have the court enforce the minimum cleanup required by the consent order.

 

36.  It would be good if this agreement could include a provision that, when remediation technologies have improved, the company would revisit the site and deal with the PCB’s that are now being left behind.

 

Ø      Because the only PCBs at concentrations greater than 10 ppm that will be left in the Shoreline Area and Northern Corner will be entirely isolated within a bulkhead, slurry wall and the low permeability five-foot cap (set on top of at least 7 feet of additional clean fill in those areas), and because PCBs would not volatilize underneath the contact barrier, the proposed remedy set forth in the Term Sheet is considered to be fully protective and human health and the environment.  Thus, there would be no need to ask ARCO to “revisit” the site in the event new remedial technologies develop.  It is not realistic to presume that ARCO would be willing to undertake a thorough remediation of the site as envisioned in the proposed settlement, only to risk having to return sometime in the future to “undo” this remediation and implement a new remediation.  Further, this approach would make site redevelopment unappealing, as there would be a recurring risk that the northwest portion of the site would be subject to remediation in the future.  However, the settlement envisions that ARCO will take steps to maintain the effectiveness of the settlement remedy for 100 years.

 

37.  There is an “ominous ‘all bets are off’ aspect” to the Term Sheet.  If DEC requires only de minimis excavation in small areas, ARCO should at a minimum be required to maintain the cap and bulkhead.

 

Ø      If DEC requires “de minimis” excavation of less than the minimum 7 feet of excavation in the Northwest Corner and Shoreline Areas, under the settlement, ARCO is required to implement the full “Alternative 1” remedy.  That remedy includes 7 feet of excavation in the Northwest Corner and Shoreline Areas, excavation of all remaining areas of the site containing PCBs in concentrations greater than 10 ppm (including PCBs in the Northern Remainder and southwest corner), lead hot spot excavation, the bulkhead, installation of the slurry wall, and the five foot cap across the entire site.  Moreover, ARCO would also be required by DEC to maintain the bulkhead and slurry wall for a period of 100 years, to put into place the settlement’s deed restrictions limiting future uses of the property, and to contribute $4.5 million to an environmental trust fund.

 

38.  It should be made clear that ARCO will pay the costs of oversight to ensure that the remedial work is performed in a way that will not itself result in a release of contaminants to the environment.

 

Ø      See the response to No. 19 above.  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 other important tasks. 

 

39.  How long will it be before the site is cleaned up?

 

Ø      See the response to No. 24 above.

 

40.  Where is DEC with respect to mandating a cleanup of the site?

 

Ø      See the response to No. 24 above.  As noted in that answer, it is the Village’s understanding that DEC is quite close to issuing its PRAP for the site.

 

Sampling

 

41.  Have the Village and Riverkeeper’s experts evaluated the adequacy of the sampling that was performed by ARCO?

 

Ø      Yes.  Both teams determined, as did DEC, that the sampling was adequate and properly reflected the site conditions.

 

42.  Will any further sampling be conducted?

 

Ø      DEC will determine whether any additional sampling must be performed in connection with the site remediation.  DEC may require that ARCO undertake sampling following excavation in those locations where all PCBs at concentrations greater than 10 ppm are to be removed to ensure that no such PCBs remain.  Because excavation will be conducted within the confines of sheet piling in approximately 50-foot grids, only such “end point” sampling from the bottom of the excavations can be conducted.  (This applies both to excavation of the three outlier data points in the Northern Remainder as well excavation in the containment area.)  The intent of the previous sampling efforts was to determine the aerial/horizontal (as well as vertical) extent of contamination, since it was established during the sampling and proposed remedial process that side wall sampling could not be conducted.  The sampling that was conducted is sufficient to establish that the outliers are precisely that, and do not indicate more extensive PCB contamination in the surrounding areas.

 

Monitoring

 

43.  Who will be on site monitoring excavation and construction activities? Where will the money come from to conduct such monitoring?

 

Ø      As noted in response to Nos. 5 and 17 above, DEC will be responsible for selecting the monitoring to be performed during the remediation of the site.  As noted in the response to No. 38, above, ARCO has agreed to pay for the reasonable cost of a Village-retained monitor during the remediation.  ARCO has also agreed to conduct “real time” air quality monitoring during the remediation, and to allow the Village access to this and other monitoring data.  During construction relating to any site redevelopment, the Village intends to have the prospective developer pay the costs of any necessary monitoring.

 

44.  Would any post-cleanup monitoring be performed to ensure that the remedy was effective and that no contaminants have migrated up?

 

Ø      See the responses to Nos. 5 and 17 above.  DEC will decide what monitoring must be performed, and this may include periodic sampling of the groundwater to ensure that the contact barrier is effectively containing any remaining PCB contamination.  In addition, the settlement contains a provision that would require ARCO to maintain the bulkhead, cap, and slurry wall in good and effective condition for a period of 100 years.

 

45.  A more effective, low-tech way of monitoring the integrity of the remedy than groundwater monitoring (which would likely be very expensive and is of dubious value because (i) PCBs are not water soluble and thus might not reveal any breach in the contact barrier, and (ii) the wells themselves may be a means of allowing contaminants to migrate above the barrier) would be to have a professional engineer walk the site on a regular basis for the next 100 years to ensure that nothing is built in violation of the deed restrictions.

 

Ø      The wells installed for any groundwater monitoring, to the extent they penetrated the contact barrier, would be sealed with bentonite or similar material to prevent the creation of any pathway for migration. (See the responses to No. 48 and 49, below.)  Indicator substances as well as particulate PCBs may be used to determine changes in water quality that would suggest a breach in the contact barrier.  Indicator substances and/or compounds to be monitored would be specified in a long-term monitoring program required by DEC.  As part of the ROD, DEC typically requires periodic inspections and certifications.  (See the response to No. 54 below.)  Finally, any activity that requires a building permit or other municipal approval is subject to Village review and approval, and compliance with the restrictions will be a condition of such approval.

 

46.  Would the community be notified with respect to any monitoring results during excavation and construction?

 

Ø      As indicated in the responses to Nos. 38 and 43, ARCO has agreed to pay for the Village to have its own consultant conduct periodic inspections and review monitoring results during remediation.  Thus, the Village monitor would be able to inform the community directly of important monitoring results during excavation and construction, to augment information provided by ARCO. 

 

Ø      Further, DEC’s Community Participation Program provides for the provision of relevant information to the public during the remediation of inactive hazardous waste disposal sites such as this one.  The DEC’s Guidebook for citizen participation notes that the interested public will be provided, at a minimum, a Fact Sheet prior to: the agency’s finalizing the Remedial Design; the implementation of Remedial Construction; and at the completion of Remedial Construction.  The Fact Sheet provided prior to the Remedial Design would describe the general remedial action plan and the general schedule of major activities, and highlight the final draft plans and specifications.  The Fact Sheet preceding the commencement of Remedial Construction would describe the planned start date for the activities, the major construction activities and general schedule, and actions that might affect the public (e.g., truck routes, hours of operation).  An informal meeting of the DEC and the interested public (called an “availability session”) to answer questions and provide information would also take place, prior to the commencement of Remedial Construction.  The Fact Sheet regarding the completion of Remedial Construction would include a description of any post-construction activities.

 

Post-Remedial Development

 

47.  Is it possible that PCBs could evaporate and collect in any buildings constructed on site and/or move up to the surface of the site?

 

Ø      No.  As noted in the response to No. 5 above, PCBs are heavy and will not volatilize under a low permeability contact barrier.  Therefore, they will not migrate upwards through the ground, nor do they evaporate.

 

48.  Would it be necessary to pierce the contact barrier to construct buildings on the site?

 

Ø      Because any substantial buildings would have to be constructed on piles due to the fact that the site is situated on top of fill, the contact barrier would have to be pierced.  The pilings would be coated, however, with a material (typically bentonite) that would automatically create a seal with the contact barrier as the piles are driven through.  In addition, the naturally occurring silt layer and basal sands that exist on the site would create a seal around the pilings at their footings.

 

49.  How proven is the sealant technology that would be used when pilings pierce the contact barrier?

 

Ø      The bentonite seal is a proven technology and has been used for decades when installing groundwater monitoring wells where drilling through bedrock to eliminate any upward or downward mobility of contaminants during the drilling process. This process has a long established track record of success as a result of its various uses during investigations and remediation.

 

50.  Would buildings be permitted in the “Northern Remainder”?

 

Ø      No buildings would be allowed anywhere that PCBs at concentrations greater than 10 ppm would remain (other than the inconsequential outlier data points).  The only areas where PCBs greater than 10 ppm would be allowed to remain are what are termed the Northwest Corner and Shoreline Area in paragraph 4 of the Term Sheet.  The “Northern Remainder” is that part of the northwestern portion of the site except the Northwest Corner and Shoreline Area.  All soils containing PCBs at concentrations greater than 10 ppm would be removed from the Northern Remainder, and therefore buildings would be allowed to be constructed.  This will be made clear in the final settlement document.

 

51.  Who will want to live in houses built over PCBs?

 

Ø      See the response to the previous question.  No houses would be permitted in any area where PCBs over 10 ppm would be allowed to remain, and any PCBs less than 10 ppm would be under a minimum of the five-foot cap consisting of six inches of topsoil, four feet of clean fill, six inches of impermeable material, plus whatever additional fill would need to be placed on the site by a future developer.

 

52.  Shouldn’t we require any additional fill brought on the site to be actual dirt?

 

Ø      As noted in response to No. 31 above, any fill brought onto the site by ARCO would have to be clean fill as defined in DEC’s regulations, i.e., uncontaminated with hazardous or industrial waste.  Thus, it would be entirely protective of human health and the environment.  The nature of any fill brought onto the site by a future developer to permit the construction of new buildings and other structures would be considered as part of the Village’s review.  It is unclear what is meant by the term “actual dirt”, as that is not a term used in the construction field.  If what is meant is pure soil, it should be noted that imposing this requirement on a developer would likely be prohibitively expensive and risk discouraging future development. 

 

53.  I am concerned about the reliance on a demarcation layer and deed restrictions.  I don’t think institutional controls have worked well historically.  For example, someone could decide to dig a swimming pool or basement even though not permitted, and that would be hard to monitor.

 

Ø      The prohibition against any detached single-family homes on the site is designed to prevent anyone from performing any activities that might breach the contact barrier because housing developed on the site would likely be governed by a condominium or homeowners’ association that would effectively monitor the activities of its residents.  In addition, because there would be no individual yards, no swimming pools could be dug.

 

54.  Consistent with EPA’s recent draft guidance for institutional controls, there should be: (1) a requirement that ARCO prepare and implement a detailed Operation and Maintenance Plan; (2) annual inspections of the cap and bulkhead, the result of which should be included in a report to DEC together with recommendations for remedying any defects; (3) periodic review of the title to properties to ensure that the deed restrictions remain in place; and (4) an annual certification from a responsible corporate official that the institutional controls remain in place and effective.

 

Ø      These are institutional controls that would typically be required by DEC to assure compliance with the ROD. 

 

55.  I don’t understand the reference point from which the 65-foot height limitation would be calculated.

 

Ø      The reference point is contained in the existing Waterfront District zoning that could “drop” on the site when any development is proposed.  It is set at “elevation 8 established in National Geodetic Vertical Datum (1929) [‘NGVD29’].”  There is not a standard “elevation above mean sea level” that can be applied.  The Datum is calculated based upon a series of base points across the U.S. and Canada. A kind of rough grid was generated in 1929, and in 1988 the grid was refined.  For Hastings, available documentation for the NGVD is benchmarked to the NGVD29 value.

 

Ø      In other words, no building could exceed a height of 65 feet above the NGVD29 of elevation 8.

 

56.  How would the 65-foot maximum height limitation relate to the existing buildings on the site?

 

Ø      The existing buildings are lower than 65 feet.  However, they are closer to the shoreline than the setbacks that would be imposed under the proposed settlement.  Moreover, it is important to remember that the 65-foot limitation is the maximum allowable height.  Any actual development proposal would be subject to site plan review by the Village, which could impose a lower height limitation.

 

57.  Why would no single-family homes be allowed?  They would improve the quality of a multi-use district on the site.

 

Ø      See the response to No. 43 above.  Non-detached single-family homes would be allowed, but detached single-family homes would be prohibited to protect against any breach of the contact barrier and resulting impacts on human health or the environment.

 

58.  Why would ARCO want the 100-foot setback, 65-foot height limitation and prohibition on detached single-family homes?

 

Ø      The height and setback limitations are the same as those contained in the existing “floating” Waterfront District zoning that would apply to the site.  It was actually the Riverkeeper that wanted to include these provisions in the Term Sheet to ensure that the height limitation could not subsequently be increased or the setback limitation decreased for the site.  ARCO supported the prohibition on detached single-family homes for the reasons expressed in response to No. 53 above.

 

59.  The final settlement document should make clear that the setback and height limitations are not in derogation of the Village’s authority under its zoning and other land use planning mechanisms to impose more stringent development restrictions.

 

Ø      This is set forth in the Term Sheet, as it characterizes the height as a maximum and the setback as a minimum.  This will be confirmed in the final settlement document.

 

60.  To the extent feasible, sewer lines should be placed in concrete trenches that have been backfilled with clean soil.  The trenches could be tied into the asphalt or similar impermeable layer of the cap.

 

Ø      The soil in which sewer lines would be placed would be clean fill, so this step is unnecessary.  As noted in the response to No. 2 above, if a sewer needs to breach the contact barrier to connect to the existing main below the contact barrier, special precautions will be required.

 

61.  Couldn’t buildings be floated rather than using piles so that the contact barrier would not need to be pierced?

 

Ø      This is an engineering/architectural question for any future developer of the site.  The settlement does not rule out the possibility that buildings could be designed with floating foundations.  However, the Village and Riverkeeper’s experts believe that any substantial buildings would require piling.  In the event that the use of piles is necessary, the protective measures discussed in response to No. 48 above would be required.

 

62.  Language should be crafted that would require ARCO to use reasonable, good faith efforts to reach a future development and open space plan compatible with the Village’s aspirations for the site.

 

Ø      The Term Sheet provides for such discussions in ¶ 18(f); good faith is implied in any contractual agreement. 

 

63.  Under Alternative 4, ARCO would not be required to maintain the cap, bulkhead, and slurry wall.  Who would pay for this?

 

Ø      Under Alternative 4, ARCO could challenge the DEC-selected remedy, but would have to advocate for a remedy in the range of the excavation levels in the Term Sheet, and would also have to advocate for the cap, bulkhead and slurry wall.  Thus, it is expected that if even ARCO challenged the DEC-selected remedy, these elements would be part of the final agency- or court-ordered remedy.  DEC typically requires responsible parties to ensure the maintenance of a remedy, including elements such as a cap, bulkhead or slurry wall, for a period of 30 years.  After that time, the maintenance would be the responsibility of the future owner and/or developer of the site.  Under the existing Waterfront District zoning, any developer would be required to establish a sinking fund to provide for the maintenance of any bulkhead on the site.

 

The Bulkhead

 

64.  Where would the height of the bulkhead be relative to the 100-year floodplain?

 

Ø      The 100-year floodplain is at 7.7 feet above the National Geodetic Vertical Datum (NGVD) of 1929. The bulkhead would likely be below the NGVD of 1929.

 

65.  Who would pay for the maintenance of the bulkhead after 100 years?  Wouldn’t that discourage any potential developer for the site?  What is the estimated size of the sinking fund that would be required from a developer to pay for the maintenance of the site on hundred years from now?

 

Ø      As noted in response to No. 63 above, once ARCO’s responsibility for maintaining the bulkhead expires, that responsibility would devolve to the future developer of the site.  It is not anticipated that this would discourage any potential developer.  On the contrary, it is anticipated that this would act as an incentive.  Because the present zoning requires a developer to establish a sinking fund for the upkeep of the bulkhead, ARCO’s requirement to maintain the bulkhead for a period of 100 years would represent a significant cost savings for any developer.  See also the response to No. 69 below.

 

Ø      The request for an estimate of the size of the sinking fund required to maintain the site assumes that the remedial program envisioned by the settlement and/or imposed by DEC would fail, and that the remedial program, and most particularly the bulkhead, slurry wall and contact barrier, would have to be reinstalled in one hundred years.  As noted above, the Village and Riverkeeper’s consultants do not agree with the assumption that the remedial program would fail.  Moreover, it is not realistic to estimate costs for a remedial program, the extent of which is unknown for 100 years in the future.

 

66.  How much money would be needed in the sinking fund to pay for the upkeep of the bulkhead after the 100 years expire?

 

Ø       This amount is not now known, but will be calculated if this condition is imposed under the final settlement.

 

The Trust Fund

 

67.  Why does ARCO have a say in way the Trust Fund moneys would be spent?

 

Ø      It is typical in citizen suit settlements for the responsible party to have a say in how any moneys it places in a trust fund or similar instrument are expended to ensure that funds are not used for any purpose inconsistent with the terms of the settlement.  In this case, ARCO remains the owner of the site and thus has an interest in retaining some voice in the Trust Fund to make sure that any projects proposed under the Fund are consistent with remedial activities and future redevelopment plans for the site.  Moreover, the Term Sheet does not anticipate that ARCO would have any ultimate “veto” power over use of the Trust Fund, only that ARCO would have a voice in the decisionmaking process (i.e., the use of the Trust Fund monies would be decided by a majority vote).  The Term Sheet anticipates that the parties will develop clear criteria that will govern how any Trust Fund monies are spent.  Therefore, it is not expected that significant disputes would arise.  If any disputes were to arise as to whether the use of such funds is consistent with the consent order, any party, including the Village, would have the right to go to the Court to resolve them consistent with the terms of the settlement.

 

68.  It should be made clear that the Trust Fund can be used to purchase (or condemn) the Mobil or Uhlich parcels at the waterfront.

 

Ø      There is nothing in the Term Sheet that would preclude Trust Fund monies from being used for this purpose.

 

69.  Wouldn’t the Trust Fund monies be better spent on the maintenance of the cap, or to hire a consultant to monitor what is happening at the site in perpetuity?

 

Ø      Because ARCO is required to maintain the cap for a period of 100 years, and any future developer would be required to maintain it thereafter, there is no reason to devote the Trust Fund to the upkeep of the cap.  DEC’s ROD will provide for elements of long-term monitoring of the remediation.  In the event the Village determines that DEC’s requirements are inadequate, there is nothing in the Term Sheet that would prevent the Village from retaining its own monitor.  Whether use of Trust Fund monies for that purpose is the best use of the Fund is better left for future consideration in light of, among other things, DEC’s requirements.

 

Open Space

 

70.  How would the transfer of property to the Village work under paragraph 21 of the Term Sheet?

 

Ø      The precise mechanism by which the property might be transferred to the Village remains to be negotiated by the parties.  Moreover, it is important to remember that there is no resolution as to whether the property will be transferred to the Village.  The Village is still exploring all redevelopment options to determine whether a transfer is the best approach for it.  Paragraph 21 of the Term Sheet only commits the parties to engage in good-faith negotiations concerning a transfer of open space for a period of one year following the Court’s approval of the proposed settlement.  In fact, the Village and ARCO have already begun, but not yet concluded, these negotiations.

 

71.  Will the Village be liable for maintenance of the portion of the site that is parkland?

 

Ø      Under the Term Sheet, the Village will be responsible for maintaining any plantings on the public open space portions of the site.  The bulkhead, slurry wall and cap, in these areas as well as over the entire site, must be maintained by ARCO for a period of 100 years, and by the future owner/developer subsequent to that time.

 

72.  What provision would be made to ensure access to the public areas?

 

Ø      Paragraph 18(f) of the Term Sheet specifically requires that ARCO allow public access to open space on the site.

 

Site Buildings

 

73.  The Local Waterfront Revitalization Plan process has resulted in the recognition of the importance of preserving the historical industrial nature of the site.  Would the industrial buildings that exist on the site have to be removed to effectuate the cleanup? What plans, if any, exist to attempt to preserve these structures?

 

Ø      The Village is considering whether it is practicable to save the water tower and some or parts of existing buildings consistent with the proposed remediation and with prospective development generally consistent with the RPA concept plan. The buildings that the Village has been asked to consider, in particular, are Building Nos. 15, 51, 52, 53, 57 and the former Anaconda administration building (No. 2).  It must be noted that DEC may determine whether any of these structures can remain consistent with the remedial program it selects in the ROD.

 

Ø      ARCO has agreed to assess the feasibility of whether the water tower has sufficient structural integrity to allow it to be disassembled, stored and reassembled on the site.  ARCO has also agreed to assess whether it is feasible to reuse the Administrative Building and Building Nos. 51 and 52, consistent with any remedy directed by DEC, considering the cost and any constraints to future development/use of the site.  If such reuse is not feasible or permissible, ARCO has also agreed to ascertain whether it is feasible to save one or more facades from these buildings.  This will necessitate consideration of the structural integrity of the subject element, as it must be able to survive being lifted, transported, stored and then installed in a new structure.  It is virtually certain that the remaining identified buildings (Nos. 15, 53 and 57) could not be preserved, however, for a number of reasons.

 

Ø      Leaving buildings in place and trying to install the contact barrier in and around structures could result in differential settlement, step cracking and cosmetic distress, as weight on the contact barrier would not be evenly distributed across the site. Determining the effect of these stresses would require a structural review of each individual building to determine how evenly the loads are distributed based on their method of construction (i.e., deep foundations versus slabs).  Additionally, buildings would have to be filled inside and outside to minimize, not eliminate, the potential of stresses the would cause structural deformation of side walls. This approach could raise questions regarding compliance with the federal Americans with Disabilities Act and State and/or Village requirements regarding access to buildings.  In addition, to the extent that large buildings (such as No. 15) are left on-site, they could meaningfully constrain development flexibility and ultimately lead a prospective developer to demand increased density to offset the concomitant financial burdens.  In this regard, the Riverkeeper has indicated that it would object to raising the height of any building within the 100 or 65-foot buffer from the River or Cove, respectively.

 

Ø      In addition, it is not practicable for these buildings to be retained due to the likely interference with staging needs during remediation.  An important reason that the parties anticipate the removal of the existing structures on site, particularly in the northwest portion of the site, is to provide space for staging of the extensive amounts of equipment that will be needed to implement the excavation and the large volumes of excavated material that will be present and need to be temporarily stockpiled for removal from the site.  There will also be vehicles for transporting the excavated and contaminated material to rail, barge or for hauling off-site for disposal.  Any buildings remaining on-site could hinder or possibly become hazards to on-site remedial activities.  And to the extent buildings are left intact that would interfere with work along the shoreline, there would be more activities to the east, closer to the downtown areas of the Village, which could generate health and safety concerns that would not be extent if the activities were kept closer to the shoreline.

 

Ø      In addition, each of the remaining identified buildings has specific characteristics that preclude their remaining in place.  Building No. 15 parallels the River for a significant portion of the site.  The building is subject to extensive erosion beneath its foundation, which may eventually undermine it.  In addition, this building’s footprint is so large that it would interfere with redevelopment of the site.  Most importantly, it would interfere with the mandated construction of the bulkhead, a critical element of the remedial program.  Building No. 53 covers the area in which the slurry wall, which is part of the containment system for soils containing PCBs over 10 ppm, would be installed.  Thus, it cannot be left in place.  Building No. 57 is also located in the Northwest Corner directly over soils that must be excavated.  In addition, a preliminary assessment of the building’s structural integrity by ARCO indicates that it would not be able to be filled and reused.

 

Ø      Finally, it should be noted that, while the Local Waterfront Revitalization Plan identifies as a policy “[p]reserv[ing] historic resources” (Policy 13), it also identifies 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.

 

Ø      In brief, the foregoing discussion indicates that the preservation of most of these buildings is plainly infeasible, and that the preservation of the remaining ones is likely to be impracticable and to interfere with remedial activities.  It may be plausible to save a building façade and perhaps the water tower, although that will depend primarily on structure integrity.  As indicated, ARCO will fund the continued evaluation of these issues, and they will continue to be considered by the Village and ARCO.  However, given the inherent difficulties addressed above, neither the Village nor ARCO can make any commitment to preserving all or any part of the existing buildings at this point. 

 

Post-Settlement Events

 

74.  Would the Village still have the right to ask DEC for certain changes or features of the remedy put forth in its PRAP?

 

Ø      Under paragraph 14 of the Term Sheet, the Village would not have the right to challenge DEC’s ROD (except as explained in the response to No. 24, above).  However, the Village would not be precluded from commenting on features of the PRAP provided its comments are consistent with the terms of the proposed settlement.

 

75.  Who would be liable in the future if additional contamination is discovered?

 

Ø      ARCO would remain liable if additional contamination is discovered.  Under its authority pursuant to the State Inactive Hazardous Waste Disposal Site Law, it is standard for DEC to include a “reopener” in any Release and Covenant Not to Sue issued to ARCO after the completion of the remediation that provides that it may initiate new enforcement proceedings and/or require additional remedial measures in the event new contamination is discovered on a remediated site.

 

Ø      In addition, under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), also known as “Superfund,” as the present owner of the site, or a former owner of the site at the time of the release of hazardous substances, ARCO would remain liable for cleaning up any newly discovered contamination.

 

76.  What’s happening with operable unit (“OU”) 2 (i.e., the River)?

 

Ø      It is the Village’s understanding that DEC is proceeding with its preparation of a PRAP for OU-2.

 

Miscellaneous

 

77.  I’d like to see more in writing from the engineers.

 

Ø      The Court issued a Confidentiality Order in April of 2002 that prevents the parties from disclosing any draft or final documents prepared in settlement negotiations, including “engineering reports,” to any non-parties without the consent of all of the parties.

 

78.  How will the Village comply with the State Environmental Quality Review Act (“SEQRA”) process?

 

Ø      The Trustees do not believe that the proposed settlement is subject to SEQRA under 6 NYCRR Part 617.  Nonetheless, the Trustees have prepared a short environmental assessment form that has been filed with the Village Clerk.  Following the close of the public comment period, the Board of Trustees will make a determination as to whether the proposed settlement is likely to have a significant effect on the environment in accordance with SEQRA.

 

79.  I am concerned with the Village being the body responsible for enforcing the institutional controls.  Could DEC be made a third party beneficiary to the settlement?

 

Ø      DEC generally imposes institutional controls that it may enforce as part of its ROD.  The parties have discussed the option of making DEC a third party beneficiary to the settlement; and did not agree to do so.

 

80.  I don’t trust DEC and don’t think the Village should be relying on DEC for the remedy design and monitoring.

 

Ø      The Trustees believe that DEC, as the State body charged with protecting human health and the environment, will mandate a sound remedial action for the site, appropriately review the RD/RA Work Plan, and properly monitor its performance.  In addition, as noted in the response to No. 38, above, the Village will be monitoring the remediation.

 

81.  What role does the U.S. Army Corps of Engineers have with respect to the construction of the bulkhead?

 

Ø      Under the Clean Water Act, the Corps of Engineers has issued what are known as nationwide permits that authorize certain activities taking place in water bodies such as the Hudson River.  Nationwide permit No. 38 authorizes “[s]pecific activities required to effect the containment, stabilization, or removal of hazardous or toxic waste materials that are performed, ordered, or sponsored by a government agency with established legal or regulatory authority.”  In addition, the permit authorizes “[c]ourt ordered remedial action plans or related settlements.”  Therefore, subject to notifying the Corps of Engineers of the bulkhead construction, it would be, in a sense, automatically authorized.

 

82.  Is there anything in the proposed settlement that would prevent the State from going after ARCO to recover natural resource damages?

 

Ø      No.  The Riverkeeper and Village’s lawsuit against ARCO is under RCRA, which has no provision for natural resource damages.  Thus, there would be nothing in the proposed settlement that would prevent the State from seeking natural resource damages under CERCLA or any other federal or state laws that authorize natural resource damages.

 

83.  In drafting the final settlement document, the parties should make clear that the idea that certain provisions of the settlement document are voided in the event of a court-ordered remedy (as stated in ¶ 8 of the Term Sheet) does not void the obligations in ¶ 4(b)(iv) that cross-reference the otherwise voided settlement provisions.

 

Ø      This will be made clear in the final settlement document.

 

84.  The final settlement document should make clear that the dismissal, although with prejudice (as is appropriate), is without prejudice with respect to: (1) any claims relating to OU-2; (2) any claims arising from new information about site-related conditions that would suggest that the agreed upon remedy is no longer adequately protective; and/or (3) any claims arising from new threats that may arise in the future, particularly with regard to PCB over 10 ppm found during site development.  In addition, any release should be limited to this RCRA claim in the lawsuit and not general. 

 

Ø      These three elements noted above apply, in the Village’s view, as a matter of law, as the lawsuit did not involve claims regarding OU-2 and the proposed settlement does not bind the Village in the event of materially changed conditions. The Village will seek to add confirmation of these elements to the final settlement document.  See also the response to No. 75 above.  There will technically be no release, general or specific; the lawsuit will just be dismissed with prejudice. 

 

85.  How can we be confident that the insurance provisions of paragraph 19 of the Term Sheet are adequate?

 

Ø      Paragraph 19 of the Term Sheet requires ARCO to provide for the maintenance of the cap, bulkhead and slurry wall for a period of 100 years and to “provide adequate financial assurance for such obligation.”  It further provides that ARCO may satisfy this condition by establishing a “trust, insurance policy, or other financial assurance mechanism.”  ARCO is further mandated to select a mechanism that is “consistent with sound and accepted fiscal practices,” a provision that would be enforceable under the court-approved settlement. Therefore, in the event the mechanism selected by ARCO turned out to be inadequate, ARCO would remain liable for maintaining the containment structures.

 

86.  How do we know ARCO won’t use paragraph 12 of the Term Sheet, which provides that its claims against the U.S. government are not dismissed, to delay cleaning up the site?

 

Ø      ARCO’s claims against the United States in this lawsuit concern only who is liable for paying for the remedy and not whether or what the remedy should be.  (ARCO essentially alleges that the United States is liable for some or all of the cost of remediating the site because the Anaconda Wire and Cable Company manufactured certain cables that were coated with PCB-containing substances for the United States Navy during World War II.)  Therefore, this provision should not have any effect on the timing of the remediation.

 

87.  Have the Village and Riverkeeper considered the threat to construction workers that would drive piles through the contact barrier and to sanitation workers that would have to access the sewer lines below the contact barrier?

 

Ø      See the response to Nos. 3 and 17 above.  A construction HASP would be developed as part of the RD/RA process that would address any potential health threats to workers on the site during the remediation.  Following remediation, the cap would contain a demarcation layer that would alert any construction, sanitation or other workers to the location of the contact barrier so that appropriate measures could be undertaken both to protect public health and properly penetrate and reseal the contact barrier.

 

88.  The Village should seek the advice of a toxicologist when it negotiates the terms of the final settlement.

 

Ø      Malcolm Pirnie has two toxicologists on staff.  Richard Califano, Ph.D., of that firm has evaluated the Term Sheet and concluded that the proposed remedial measures would be fully protective of human health.  The Village will continue to seek the expert opinions of Dr. Califano and Malcolm Pirnie in negotiating the final settlement terms.

 



[1]  These data points were brought to the Village’s attention by ARCO after the public meeting, and resulted in the modification to Paragraph 4 of the Revised Settlement Term Sheet.  Because the Village and Riverkeeper’s consultants have each concluded that these outlier data points are insignificant, mention of them will not be repeated. Thus, when this Summary indicates that all soils with PCB concentrations over 10 ppm will be removed except in the Northwest Corner and Shoreline Area, the exception of the outlier data points are incorporated by reference.