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Raritan Bay Slag CAG March 21, 2017

Raritan Bay Slag Natural Resource Damage Assessment and Restoration

• Clean-up aka “Remediation”, is directed by the EPA under CERCLA– clean up hazardous substances to protect the environment and public health.

• Restoration, aka “Natural Resource Damage Assessment and Restoration”, is directed by the Trustees under CERCLA– assess, and restore or replace natural resources injured by hazardous substances to provide for the public’s use and enjoyment.

Environmental Cleanup and Restoration Efforts

* Comprehensive Environmental Response, Compensation, and Liability Act(CERCLA)

Remediation is “Cleanup”

• Remediation is performed by or under supervision of EPA• Goal is to protect human health and the environment• Returning to pre-contamination conditions is not a goal• May not remove all contamination• Remediation is not NRDA• Operates under polluter pays principle• Potential to integrate remediation and restoration

What are Natural Resources as defined by the Law?

CERCLA defines natural resources as:

“land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States…, any State or local government, any foreign government, any Indian tribe…”

Surface water resources (including sediment)Ground water resourcesGeologic resourcesBiological resourcesAir resources

So, who are the Natural Resource Trustees?

• New Jersey State, represented by the Department of Environmental Protection (NJDEP)

• U.S. Department of the Interior (DOI), represented by the U.S. Fish and Wildlife Service (USFWS)

• U.S. Department of Commerce, represented by the National Oceanic and Atmospheric Administration (NOAA)

*In some cases Trustees could also include Tribes of the United States

Under CERCLA the Trustees are the applicable Federal and State Resource Agencies.Here are the Raritan Bay Slag Trustees with you today.

What gives Trustee Regulatory Authority?

State of NJ • Water Pollution Control Act • NJ Spill Compensation and Control Act• Public Trust Doctrine

Federal • 1980 Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA)• 43 CFR Part 11 - Natural Resource Damage Assessments

Tell me more about the Trustees!

• Trustees are stewards of the public’s natural resources. These agencies have resource management authority.

• Trustees pursue claims (damages) for injury to, destruction of, or loss of natural resources resulting from the release of hazardous substances. NJ authority also extends to pollutants. Includes past, present, future injury.

• Trustees resolve damage claims through settlement or litigation consistent with the polluter pays principle.

1. Assess the injuries. 2. Identify and scale appropriate restoration

alternatives. 3. Resolve the claim. 4. Develop a restoration plan. 5. Conduct restoration activities. 6. Monitor the effectiveness of

restoration activities.

What are the Trustee Responsibilities?

What are Injuries under federal Law?

• Injury: “…a measurable adverse change, long or short‐term, in the chemical or physical quality or viability of a natural resource, directly or indirectly from exposure to a hazardous substance…”

What more can you tell us about Injury?

Injury is a

NJ:Mere presence of contamination as a result of a discharge

Federal:Measurable adverse change

• May or may not be obvious, often subtle• May be result of response action• May be physical injury• May be a lost use

What do we mean when we say Assessment?

The Trustees are assessing injury to ecological and human lost services.

For each resource and service, we are: 1) determining the nature and extent of the

injury; 2) quantifying the magnitude of the injury;

and 3) determining if remedial actions will

restore injured natural resources to baseline conditions.

Assessment:Potential Injury Categories

• Per se injuries -- violations of State or Federal standards• e.g., surface and groundwater, FDA, consumption advisories

• Biological resource injuries• e.g., invertebrates, fish and wildlife

• Human loss services injuries• e.g., beach closures, fishing bans

• Remedy-caused injuries• e.g., loss of habitat

• Pathway injuries• e.g., sediments

Next comes the Restoration

Natural Resources Damage Assessment and Restoration (NRDA) is a means of securing restoration of injured natural resources

Restoration of injured natural resource services and functions is accomplished under the guidance of the Trustees. The Trustees first assess injuries and then identify and evaluate Restoration Projects to compensate for the natural resource injuries.

Restoration is: bringing back lost natural resources and their services

How is Restoration Defined?

Primary Restoration• Projects to restore natural resources to the

condition that would have existed if the incident had not occurred

Compensatory Restoration• Projects to compensate for interim losses

of natural resources and the services they provide

Compensatory Restoration

•Restoration is compensation for the loss of the Baseline condition(s) that would have existed had the discharge of oil or release of a hazardous substance not occurred

•Compensation is measured as damages, calculated in projects or dollars necessary to implement restoration

•Compensation must restore, replace, or acquire the equivalent of lost resources/ resource services

Steps in the restoration planning process:1. Identify categories for types of projects.2. Develop restoration ideas.3. Solicit additional ideas from the public.4. Scale restoration. (Match injured natural resources

to restoration projects.)5. Review and select preferred projects.6. Develop Restoration Plan.7. Implement Restoration Plan.

Restoration requires a Process

Scaling – How Much Restoration?

Guidance for restorationproject selectionmust consider:

• Link to injury• Legality• Efficacy• Feasibility• Cost-effectiveness• Nexus to existing plans

Project Selection Criteria

RBS Coastal Vulnerabilities:Consequences of Significant Coastal Erosion from High-Energy

Storms, Off-shore Energy, and Long Fetch

Hardened shoreline

Unprotected bluff and boardwalk

Loss of wetlands and shellfish beds

Absent Dunes

Narrow Beach

Drowned Tidal Wetland

Sediment in Channel

Disconnected Watershed

Culvert Restriction

Sediment Plateau

Impounded Upper Watershed

Raised Utility Line

RBS Hydrologic Impairments:Margaret’s Creek Marsh

RBS Marsh Vulnerabilities: Impaired Hydrology

Marsh Bisected by Utility LineUpstream Impoundment

Partially Blocked Creek Mouth Undersized Culvert

Examples of Potential Restoration Project Alternatives under Consideration

Project alternatives* include but are not limited to:

• Dam removal and fish passage• Wetland Restoration• Oyster Restoration• Wave Attenuation Devices• Land Acquisition• Human use projects (beach and dune

improvements)

* On-site or Off-site

QUESTIONS POSED BY CAG

• Would NOAA consider extending Tottenville/Wards Point project that incorporates oyster reefs to Margaret’s Creek area?

• Will the Trustees install plants in the Margaret’s Creek area in addition to those planned by the EPA?

• Will the Trustees restore the spit of land known as “the point” near Margaret’s Creek?

• Will the Trustees dredge or clear the outlet from Margaret’s Creek to Raritan Bay?

• Will any additional protective measures such as shellfish, reefs or rocks be installed against storms?

• Is funding approved for restoring or improving our site?

Examples of Wave Attenuation Devices

Trustee Responses to CAG Questions

• The Trustees have not begun NRDA negotiations so no NRDA funds currently available for restoration

• Margaret Creek Sector could potentially be planted to address remedial injury

• Improvements to hydrology at the mouth of Margaret’s Creek could potentially occur as part of a holistic restoration approach to Margaret’s Creek marsh

• Protection/restoration of the coastal shoreline could potentially occur through construction of vegetated dunes and/or placement of near-shore wave attenuation devices

• Restoration of shellfish beds at the site is currently precluded by NJ regulations

Next StepsTrustee’s Continue to:

• Evaluate remedial designs and follow progress of remedy implementation

• Refine injury assessment • Identify and evaluate restoration

alternatives• Build relationships with stakeholders

Trustee web sitesNOAA –https://darrp.noaa.gov/hazardous-waste/raritan-

bay-slagNJDEP –http://www.nj.gov/dep/nrr/

FWS –https://www.fws.gov/northeast/njfieldoffice/

Have More Questions?

Photo Image Sources

Slides 3,4, 6, 8, 9, 10 (top and bottom), 11, 12 (top), 13, 14, 19 (bottom), 22, 23 (top,) 27, 28 : NOAASlide 7: Diamondback Terrapin. Willem M. Roosenburg, Ohio University; Egret: National Wildlife FederationSlide 10: Aerial photo, Oct 2008 EPA Environmental Photographic Interpretation Center (EPIC)Slide 12: Piping plover: Gene Nieminem , USFWSSlide 19: Brandt goose: Nature Mapping FoundationSlides 21 and 22: NOAA modified Google imagesSlide 23: Bottom National Precast Concrete AssociationSlide 25: From Left to Right Top Row to Bottom Row: TBO.com; Arthur de Graauw; WaveEater; Think Defence; National Precast Concrete Association; Think Defence