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Draft Scope for the Hudson River Natural Resource Damages Assessment Plan

Prepared by

The Hudson River Natural Resources Trustee Council

New York State Department of Environmental Conservation

National Oceanic and Atmospheric Administration

United States Fish and Wildlife Service

September 1998

Introduction

This document represents a preliminary step in the process of assessing natural resource damages (NRD) in the Hudson River. The NRD process is the companion component to a hazardous waste site cleanup under the Comprehensive Environmental Response, Compensation and Liability Act, also known as CERCLA or the federal Superfund law. The purpose of a CERCLA cleanup is to stop a hazardous substance release from continuing to cause harm or risk to human health and the environment. Hazardous waste site cleanups under CERCLA are administered by the U.S. Environmental Protection Agency (EPA). The purpose of an NRD action under CERCLA is to compensate the public, or make the public whole, for the injury to the environment and the loss of use of the environment caused by the release of a hazardous substance before during and after the cleanup is completed. NRD actions under CERCLA are administered by designated federal and state agencies and Indian tribes acting on behalf of the public as natural resource trustees. In conjunction with a cleanup, an NRD action makes the public whole by requiring a responsible party to perform or pay for restoration projects that restore the injured natural resources and the uses and services they provide.

In coordination with the EPA's Hudson River Reassessment, the Hudson River Natural Resource Trustees - the United States Department of the Interior (DOI), the National Oceanic and Atmospheric Administration (NOAA), and the New York State Department of Environmental Conservation (NYSDEC) - will be conducting an assessment of natural resources damages with respect to the Hudson River PCBs Superfund site.

Assessing NRDs can be a large and complex undertaking. The federal government has developed regulations which guide this process. The Trustees have been following the Federal Regulations for Natural Resource Damages Assessments (43 CFR Part 11).

In October 1997, the Trustees took the first step in the natural resources damages assessment (NRDA) process with the issuance of a preassessment screen determination for the Hudson River. The preassessment screen was based on existing data concerning the ecological impacts of PCBs. The preassessment screen documents the Trustees' determination that conditions in the River warrant a natural resource damage assessment.

The Trustees are now at the next step, which is the development of an assessment plan. The purpose of the assessment plan is to ensure that the trustees perform the assessment in a planned and systematic manner, using appropriate methodologies for evaluating and quantifying injuries to the Hudson River's natural resources. The planning process will also allow the Trustees to determine whether the assessment can be conducted at a reasonable cost.

Before preparing the Plan itself, the Trustees have first prepared this document, the Draft Scope. The Scope is a preliminary outline of the contents of what will be the Hudson River Natural Resource Damages Assessment Plan.

The Plan will be organized in chapters, as set out below. Chapter 1 will include an overview of the assessment process, which explains how the Trustees will satisfy certain underlying procedural requirements in the DOI regulations. Chapter 2 of the Plan will provide background information identifying the substances and resources of concern to the Trustees. Chapter 3 will describe the specific activities the Trustees propose to undertake to document the nature and degree of injuries to natural resources. Chapter 4 will provide an introduction to the concept of damages, with an emphasis on the costs of restoration and potential methods by which the Trustees will calculate other natural resource damages. Chapter 4 will also describe the types of restoration alternatives likely to be considered, the categories of compensable values for which the Trustees may claim damages, and the economic methodologies the Trustees would likely use to estimate these compensable values. These chapters are to be followed by a glossary and appendices as needed. The full Draft Plan will be issued for public comment through a formal review process.

At the same time that we are offering this Draft Scope for public comment, the Trustees have also begun to develop those parts of the Draft Plan which are fundamental to any assessment plan; in other words, we are getting a head start on certain generic or "boilerplate" elements which the regulations require to be included. These consist primarily of introductory sections summarizing existing conditions and regulatory mandates. The later portions, however, offer opportunities for the Trustees to make numerous decisions about what should and should not be studied or measured by the Plan.

The Trustees are offering this Draft Scope for public comment so that we may involve all concerns at the earliest possible stage. It may be useful for you, as you read the Scope, to consider the following questions:

1) Will the NRDA Plan address all of the significant injuries?

2) Will the NRDA Plan address injuries which are insignificant and should not be studied or measured?

3) Are there assessment methodologies which should or should not be employed in the Assessment?

You do not need to confine your review to these questions; the entire Draft Scope is subject to revision. Nevertheless, your answers to these questions can provide especially useful information to the Trustees.

All written (letter, e-mail or fax) comments on this document must be submitted to Steve Sanford and received no later than December 11, 1998. For additional information, please contact one of the representatives listed below.

The Hudson River Natural Resource Trustees look forward to your continued participation in the assessment and restoration of Hudson River natural resources.

NYSDEC NOAA DOI
Sean Madden
Natural Resource Damages Unit
Room 403
50 Wolf Road
Albany, NY 12233-1090
Phone: (518) 402-8977
Fax: (518) 402-895
sean.madden@dec.ny.gov
Lisa DiPinto
Damage Assessment Center
1305 East-West Highway
SSMC4 Rm 10218
Silver Spring, MD 20910
Phone: (301) 713-3038 x 187
Fax: (301) 713-4387
Lisa.DiPinto@noaa.gov
Anne Secord
US Fish &Wildlife Service
3817 Luker Rd
Cortland, NY 13045
Phone: (607) 753-9334
Fax: (607) 753-9699
Anne_Secord@fws.gov


Contents

Chapter 1 - Process Overview

1
Authority to Conduct a Natural Resource Damage Assessment 1
Decision to Perform a Type B Assessment 1
Preliminary Estimate of Damages 1
Coordination 2
With Resource Trustees 2
With Non-Trustee Parties 2
With Remedial Investigation/Feasibility Study (RI/FS) Activities 2
PRP Involvement in Plan Implementation 2
Split Samples, Procedures and Schedules for Sharing Data 3
Quality Assurance/ Quality Control Plan 3

Chapter 2 - Background Information

4
Boundaries of Assessment Area 4
Distribution of Hazardous Substances in the Assessment Area 4
History of Industrial Activity and Identification of Potentially Responsible Parties 4
Location of Releases of Hazardous Substances to the River System 4
Natural Resources in the Assessment Area 4
Surface Water and Sediments 5
Ground Water/Drinking Water 5
Geologic Resources 5
Air 5
Biological 5
Confirmation of Exposure 6

Chapter 3 - Injury Determination and Quantification

7
Introduction 7
Injury 7
Methodology and Acceptance Criteria 7
Pathway Determination 7
Determining Injury in the Hudson River 7
Quantifying Injury in the Hudson River 8
Injury Documentation for the Hudson River System 8
Task 1 - Characterize the Nature and Extent of Surface Water Contamination 8
Background
Operative Injury Definition
Acceptance Criteria
Task 2 - Characterize the Nature and Extent of Soil and Sediment Contamination 8
Background
Operative Injury Definition
Acceptance Criteria
Task 3 - Evaluate the Impact of Hazardous Substances on Aquatic Invertebrates 9
Background
Operative Injury Definition
Acceptance Criteria
Task 4 - Evaluate the Impact of Hazardous Substances on Fish 9
Background
Operative Injury Definition
Acceptance Criteria
Task 5 - Evaluate the Impacts of Hazardous Substances on Birds 10
Background
Operative Injury Definition
Acceptance Criteria
Task 6 - Evaluate the Impacts of Hazardous Substances on Reptiles & Amphibians 10
Background
Operative Injury Definition
Acceptance Criteria
Task 7 - Evaluate the Impacts of Hazardous Substances on Mammals 10
Background
Operative Injury Definition
Acceptance Criteria
Injury Quantification - Option A 11
Introduction 11
Task 8 - Quantify Injury to Surface Water 11
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 9 - Quantify Injury to Soil and Sediment 11
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 10 - Quantify Injury to Aquatic Insects 12
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 11 - Quantify Injury to Fish 12
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 12 - Quantify Injury to Birds 13
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 13 - Quantify Injury to Reptiles & Amphibians 13
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Task 14 - Quantify Injury to Mammals 13
Extent of Injury and Service Reduction
Baseline Services Determination
Resource Recoverability Analysis
Injury Quantification - Option B 14

Chapter 4 - Restoration and Compensation Determination

14
Introduction 14
Baseline 14
Restoration 14
Restoration Objectives 14
Potential Restoration Alternatives 15
Compensable Value 15
Implementation of the Damage Determination 15
Double Counting 15
Uncertainty 16
Discounting 16
Substitutability 16
Scope of the Analysis 16

Chapter 1 - Process Overview

Authority to Conduct a Natural Resource Damage Assessment

Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended (42 USC 9601 et seq.), the Oil Pollution Act (OPA, 33 USC 2701 et seq.), the Federal Water Pollution Control Act (the "Clean Water Act" (CWA)), as amended (33 USC 1251 et seq.), federal and state officials act on behalf of the public as Trustees for natural resources.

This section of the Plan will explain the statutory and common law provisions that authorize the Trustees to proceed with the NRDA. These include delegation of Trusteeship to the agencies by the President of the United States and Governor of New York, and the Trustees' determination that there is a reasonable probability of making a successful damage claim.

Decision to Perform a Type B Assessment

The DOI regulations provide for two types of assessment (43 CFR §11.33). The first, "type A" assessment, is a simplified assessment that uses computer models to generate a damage claim. This procedure requires minimal input from field observations, but is generally limited to assessment of relatively minor, short duration discharges or releases that occur in coastal or marine environments or in the Great Lakes. The second, a "type B" assessment, allows for the use of a range of scientific and economic methodologies. At this point, the Trustees expect to follow the procedures required for a Type B assessment. This section of the Plan will discuss the two types of assessments, their applicability to the Hudson River, and the Trustees' decision to perform a "type B" assessment as outlined in 43 CFR §11.35.

Preliminary Estimate of Damages

The DOI regulations require the Trustees to develop a preliminary estimate of damages prior to performing a type B assessment. The purpose of the preliminary estimate of damages is to review the anticipated costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources for the injured natural resources and the compensable value. The preliminary estimate of damages is intended to ensure that the choice of scientific, cost estimating, and valuation methodologies used in the damage assessment fulfill the requirements of reasonable cost (43 CFR §11.38(b)).

The Trustees have completed a preliminary estimate of damages for the Hudson River and are confident that the value of the damages determined through the NRDA will exceed the estimate of assessment costs. The Trustees will make the results of the preliminary estimate of damages public when the assessment is complete.

Coordination

With Resource Trustees

CERCLA (§104(b)(2)) requires prompt notification of Federal and State natural resource Trustees of potential damages to natural resources under investigation and requires coordination of the assessments, investigations, and planning with such Trustees. Consistent with the DOI regulations (43 CFR §11.32) all natural resource Trustees whose responsibility is shared with other natural resource Trustees, as a result of coexisting or contiguous natural resources or concurrent jurisdiction, have been notified that an Assessment Plan is being developed.

Coordination among the Trustees is also an essential component of a cost-effective damage assessment. The Trustees have signed a Memorandum of Agreement, dated August 1997, establishing a Hudson River Natural Resource Trustee Council. The purpose of the Trustee Council is to provide a framework for coordination and cooperation among the State and Federal Trustees in the pursuit of natural resource damage claims and the restoration of injured natural resources in the Hudson River.

With Non-Trustee Parties

This section will describe the provisions to be made for public participation in the assessment process as required by §11.32.

With Remedial Investigation/Feasibility Study (RI/FS) Activities

The DOI regulations require the coordination of a damage assessment, to the extent possible, with response actions or other investigations being performed pursuant to the National Contingency Plan (43 CFR §11.31(a)(3)). The United States Environmental Protection Agency (EPA) is presently conducting an investigation of polychlorinated biphenyl (PCB) contamination of the Hudson River. NYSDEC is also supervising remedial investigations and activities at two General Electric plants located at Hudson Falls and Fort Edward. At a minimum, the Trustees intend to take into consideration the objectives of these activities during the planning and implementation of this assessment. The Trustees will design the assessment to take account of the impacts of any remediation or restoration activities that satisfy the Trustees' NRDA objectives.

PRP Involvement in Plan Implementation

This section will describe the provisions to be made for involvement of Potentially Responsible Parties (PRPs) in the assessment process (43 CFR §11.32(a)(2)). The regulations allow PRPs to take a role in conducting the assessment, at the discretion of the Trustees.

Split Samples, Procedures and Schedules for Sharing Data

This section will discuss procedures and schedules for sharing data, split samples, and results of analyses with any PRPs (43 CFR §11.31(a)(4)).

Quality Assurance/ Quality Control Plan

This section will discuss the requirement that the Trustees develop a quality assurance plan or to ensure the validity of the original data collected as part of the NRDA (43 CFR §11.31(c)(2)). The final Plan will include general provisions concerning quality control and quality assurance (QA/QC) applicable to the data the Trustees intend to utilize in the course of the assessment. In general, a quality assurance plan must provide sufficient detail to demonstrate that technical and quality objectives are identified; the intended measurements or data acquisition methods are appropriate; assessment procedures are sufficient for confirming that the type and quality of data needed are obtained. Project-specific QA/QC plans will be developed for individual studies and will be available for public review.

Chapter 2 - Background Information

The damage assessment will address injuries to a variety of natural resources associated with the release of hazardous substances. As a first step toward achieving this objective, the Trustees include in this chapter background information on the geographic scope of the assessment area, the history of industrial activity within that area, the nature of hazardous substance releases to the environment, and the natural resources subject to injury resulting from those releases.

Boundaries of Assessment Area

This section will describe the geographical boundaries of the damage assessment study area. The boundaries will likely encompass the Hudson River corridor from Glens Falls to the Battery in Manhattan, including the Hudson River itself and associated riparian and upland habitats.

Distribution of Hazardous Substances in the Assessment Area

This section will describe the distribution of hazardous substances in the assessment area drawing upon available sources and information and how that distribution is currently understood. It will include general characteristics, sources, and environmental effects of those hazardous substances. The assessment will likely focus on natural resource injuries and damages associated with the release of PCBs and metals.

History of Industrial Activity and Identification of Potentially Responsible Parties

This section of the Assessment Plan will provide a history of industrial activities in the Hudson River watershed.

Location of Releases of Hazardous Substances to the River System

This section will identify the locations where the hazardous substances of concern are known to have been released to the Hudson River watershed.

Natural Resources in the Assessment Area

The DOI regulations define five categories of natural resources for which natural resource damages may be sought: surface water resources, ground water resources, air resources, geologic resources, and biological resources (43 CFR §11.62 ). Surface water resources include both water column and associated bed and bank sediments. The following sections briefly describe each of these categories. The assessment plan will more fully describe the resources that will be investigated in the course of the assessment.

Surface Water and Sediments

The surface water resources in the assessment area include the water and bed and bank sediments of the Hudson River. The contamination of these resources has both direct and indirect impacts on biological resources. The assessment will include both establishment of the pathway component of the injury as well as identification of the potential injury to surface water and sediments.

Ground Water/Drinking Water

Ground water resources include the water in a saturated subsurface zone and the rocks or sediments through which this water flows. Ground water resources serve as a potential pathway for contaminants to migrate to other resources, such as surface water. Since ground water is a source of public drinking water, the assessment will include both establishment of the pathway component of the injury as well as identification of the potential injury to the drinking water supply.

Geologic Resources

Geologic resources include soils and sediments that are not otherwise accounted for under the definition of surface water or ground water resources. In this case, geologic resources include the soils and sediments located in upland and wetland areas closely associated with the Hudson River.

Air

Air resources are typically assessed in the context of their ability to serve as a pathway for hazardous substances to reach, and potentially injure, other resource categories.

Biological

Along with surface water resources, biological resources comprise key components of this damage assessment. The Hudson River corridor provides habitat for all trophic levels of the river's ecosystem. The plan will include the assessment of injuries to aquatic insects, fish, reptiles and amphibians, birds and mammals and the important ecological and human-use services that they provide.

  • Macroinvertebrates (e.g. aquatic insects, crustaceans, bivalves) constitute a significant food source for many of the higher trophic levels. Because macroinvertebrates are sensitive to both physical and chemical changes in the environment, they have frequently been used to assess the environmental quality of aquatic ecosystems.
  • The Hudson River corridor provides habitat for reptiles and amphibians, such as various turtles, snakes, frogs, and salamanders.
  • The Hudson River also supports dozens of both residential and migratory fish species, including recreationally important species (e.g. striped bass, American shad) and the Federally endangered short-nosed sturgeon.
  • The wetlands and riparian habitats of the Hudson River provide high quality nesting, resting, and feeding opportunities for a wide variety of resident and migratory birds. The Hudson River is also a nesting area for various rare, threatened and endangered bird species.
  • The riparian zones of the Hudson River provide habitat for various mammals such as mink, muskrat, otter, and raccoons.

Confirmation of Exposure

Prior to undertaking a "type B" assessment, the Trustees must "confirm that at least one of the natural resources identified as potentially injured in the preassessment screen has in fact been exposed to the oil or hazardous substance" (43 CFR §11.37(a)). The definition of exposure as given in the regulations as "all or part of a natural resource is, or has been, in physical contact with oil or hazardous substance, or with media containing oil or hazardous substance" (43 CFR § 11.14(q)). This section of the Plan will provide a data summary satisfying this requirement.

Chapter 3 - Injury Determination and Quantification

Introduction

This section of the Plan will describe the criteria to be used for determining whether natural resources have been injured. The Trustees anticipate using reliable existing data as well as undertaking new investigations to establish both what resources have been impacted and how the hazardous substances of concern caused or contributed to the injuries. Where new studies are required, the Trustees will prepare and make public specific sampling and analysis plans, either as appendices or supplements to the final Plan. This chapter will also set out the methods the Trustees plan to use to quantify the injuries documented in the assessment.

Injury

The definition of injury, as given in 43 CFR §11.14(v), is "a measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge of oil or release of a hazardous substance, or exposure to a product of reactions resulting from the discharge of oil or release of a hazardous substance." Where appropriate to the Hudson River ecosystem, the Trustees will consider other concepts of natural resource injury.

Methodology and Acceptance Criteria

This section will discuss type B procedures for completing injury determination and quantification as detailed in 43 CFR §11.61 (determination) and 43 CFR §11.70 (quantification). It will also generally discuss the concept of acceptance criteria for demonstration of injury as described in the regulations.

Pathway Determination

This section will discuss the concept of and need for contaminant pathway determination in general (43 CFR §11.61(c)(3)), as well as a discussion of the concept that non-biotic resources which provide a pathway for injury of another resource are themselves injured (43 CFR §11.62(b)(1)(v), etc.).

Determining Injury in the Hudson River

This section will give a short overview of the Hudson River resources which the Trustees will examine, including whether the Trustees believe the resource is injured, represents a pathway for injury of another resource, or both. Detailed discussions of the injury determination for these resources will be given in proceeding sections.

Quantifying Injury in the Hudson River

This section will discuss the broad categories of methodologies which will be used to quantify injury to Hudson River resources. This discussion will include the concepts of natural resource services and baseline services. Detailed discussions of the injury quantification for these resources will be given in proceeding sections.

Injury Documentation for the Hudson River System

Task 1 - Characterize the Nature and Extent of Surface Water Contamination

Background: This section will discuss factors that affect the injury determination, such as the existence of water quality criteria, the existence of long term water quality monitoring data, and other background information. Hudson River water as a source of injury to other natural resources will be discussed in the context of existing fish tissue data.

Hudson River surface waters, and the services these waters provide, have been affected by PCB contamination. The surface waters of this system provide habitat for fish and shellfish species, including feeding, breeding, and nursery services. In addition, these waters support both consumptive and non-consumptive recreational activities such as fishing, swimming, boating, and wildlife viewing.

Operative Injury Definition: This section will discuss surface water injury determination as detailed in 43 CFR §11.62(b)(1), including injury via acting as pathway to other natural resources (43 CFR §11.62(b)(1)(v)).

Acceptance Criteria: This section will discuss acceptance criteria, detailed in 43 CFR §11.62(b)(2), for sample collection of surface waters in order to prove injury of the resource. This section will also provide documentation that existing data were generated using generally accepted methods, as described in 43 CFR §11.64(b).

Task 2 - Characterize the Nature and Extent of Soil and Sediment Contamination

Background: Contaminants, such as PCBs and metals, tend to accumulate at high levels in sediments. Those sediments then serve as a continuing source of contamination to surface water and fish and wildlife species using the Hudson River for habitat. Also, PCBs in the sediments of the Hudson River have restricted or increased the costs of dredging needed for channel maintenance, marina development, and other river uses. Soils of the Hudson River floodplain or within disposal areas along the river may also serve as a source of contamination to other resources.

Operative Injury Definition: This section will discuss the regulatory definition of injury to soils and sediments, including injury to surface water by sediment contamination (43 CFR §11.62(b)(1)(iv), as well as injury to geologic resources (43 CFR §11.62(e)).

Acceptance Criteria: This section will discuss acceptance criteria, detailed in 43 CFR §11.62(b)(2)(I), for sample collection of bed and bank sediments in order to show injury to surface waters.

Task 3 - Evaluate the Impact of Hazardous Substances on Aquatic Invertebrates

Background: Aquatic invertebrates near the bottom of the food chain represent a critical contaminant pathway to vertebrates, both aquatic and terrestrial. Contaminants are passed up the food chain to fish, reptiles, amphibians, birds and mammals which prey on them, magnifying concentrations of toxins in the predators; sometimes resulting in food items that are unhealthy for human consumption. Additionally, the toxic nature of certain contaminants may result in injury to aquatic invertebrates and disruption of the food chain when these prey are eliminated from the ecosystem.

Aquatic biologists employ biomonitoring -- the use of organisms to test water quality -- because sampling invertebrate communities can provide a "fingerprint" of what the water/sediment quality in the aquatic ecosystem was for the several months prior to sampling. This section will discuss the collection of aquatic invertebrates and the analysis of their tissues for toxic contaminants such that the potential source and levels of contamination in the aquatic food chain can be determined.

Operative Injury Definition: This section will discuss the biological injury criteria detailed in 43 CFR §11.62(f), including the concept that sediment is injured when concentrations of a hazardous substance are sufficient to cause injury to biota (43 CFR §11.62(b)(1)(v)).

Acceptance Criteria: This section will discuss the acceptance criteria for demonstrating biological injury detailed in 43 CFR §11.62(f)(4).

Task 4 - Evaluate the Impact of Hazardous Substances on Fish

Background: PCB concentrations in fish in the Hudson River have historically been detected well above the 2 ppm tolerance level recommended by the Food and Drug Administration (21 CFR §109.30(a)(7)). Fishing advisories and closures have been instituted along the Hudson River, primarily due to elevated PCB concentrations. PCBs and other hazardous substances are known to adversely impact reproduction, immune function, health, and survival of certain fish species. As an important food source, fish also represent an important pathway to other resources.

Operative Injury Definition: This section will discuss the definitions of injury to fish which are contained in the regulations at 43 CFR §11.62(f)(1). Two operative subsections are those which define exceedence of FDA action or tolerance levels as injury (43 CFR §11.62(f)(1)(ii)) and which state that injury has occurred if a state health agency issued a directive to limit or ban consumption (43 CFR §11.62(f)(1)(iii)).

Acceptance Criteria: This section will describe the acceptance criteria for proving biological injury detailed at 43 CFR §11.62(f)(4), as well as the requirements of 43 CFR §11.64(f).

Task 5 - Evaluate the Impacts of Hazardous Substances on Birds

Background: Hazardous substances, like PCBs and metals, have been shown to adversely affect reproduction, growth, health, and survival of numerous bird species. The assessment will evaluate injuries to bird species, in general. However, greater attention will be paid to injuries to Federal or State listed threatened and endangered species (e.g. bald eagle, peregrine falcon), species that have been shown to be sensitive to PCBs or other hazardous substances of concern (e.g. black-crowned night heron, wood duck), and species that are consumed by humans (e.g., waterfowl).

Operative Injury Definition: This section will discuss the definition of injury to biological resources which is contained in the regulations at 43 CFR §11.62(f).

Acceptance Criteria: This section will describe the acceptance criteria for proving biological injury detailed at 43 CFR §11.62(f)(4), as well as the requirements of 43 CFR §11.64(f).

Task 6 - Evaluate the Impacts of Hazardous Substances on Reptiles & Amphibians

Background: Many of the reptiles and amphibians found in the Hudson River and its riparian zone rely heavily on food sources of aquatic origin; therefore, the potential is high for them to be injured due to the accumulation of harmful contaminants. These contaminants are in turn further concentrated in the tissues of the animals that prey on reptiles and amphibians. Levels of PCBs and other contaminants may be high enough in the tissues of large frogs and turtles to make them unfit for human consumption. This is currently the case for snapping turtles for which there is a NYS Department of Health consumption advisory due to PCB contamination.

Operative Injury Definition: This section will discuss the definition of injury to biological resources which is contained in the regulations at 43 CFR §11.62(f). Of particular relevance may be 43 CFR §11.62(f)(1)(ii) and (iii), dealing with FDA action and tolerance levels and State issued limits or bans on consumption.

Acceptance Criteria: This section will describe the acceptance criteria for proving biological injury detailed at 43 CFR §11.62(f)(4), as well as the requirements of 43 CFR §11.64(f).

Task 7 - Evaluate the Impacts of Hazardous Substances on Mammals

Background: The potential is high for mammals that feed in the Hudson River riparian zone to accumulate harmful levels of contaminants. Mink, in particular, have been shown to experience reproductive impairment and mortality as a result of consuming PCB contaminated prey.

Operative Injury Definition: This section will discuss the definition of injury to biological resources which is contained in the regulations at 43 CFR §11.62(f).

Acceptance Criteria: This section will describe the acceptance criteria for proving biological injury detailed at 43 CFR §11.62(f)(4), as well as the requirements of 43 CFR §11.64(f).

Injury Quantification - Option A

Introduction

This section will discuss the injury quantification phase of the assessment, as described in 43 CFR §11.70 through 43 CFR §11.73. This will encompass the concept of natural resource services, as detailed in 43 CFR §11.70 and 43 CFR §11.71, as well as the concepts of baseline services and recoverability. The Tasks listed below (Tasks 8 - 14) assume that all resources described above are judged worthy of quantification. This will likely not be the case, as contemplated in 43 CFR §11.71(d).

Task 8 - Quantify Injury to Surface Water

Extent of Injury and Service Reduction: This section will describe the extent of the surface water injury, as detailed in 43 CFR §11.71(h), and then go on to detail the services lost because of the injury, as discussed in 43 CFR §11.71(h)(4). Injury and service loss will likely be assessed over both geographical and temporal ranges, and include surface water as habitat for biota. If this information is not available, this section will discuss how such information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for surface water, as described generally in 43 CFR §11.72. Surface water is specifically addressed in 43 CFR §11.72(g). If information on baseline services is not available, this section will describe the information needed and how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73. This will likely include an assessment of the mathematical modeling of the Hudson River which is being performed by the EPA as part of the Hudson River RRI/FS.

Task 9 - Quantify Injury to Soil and Sediment

Extent of Injury and Service Reduction: This section will describe the extent of the injury to soil and sediment, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(k). Injury and service loss will likely be assessed over both geographical and temporal ranges, and include soils and sediment as habitat for biota (service) and as a pathway of injury to surface water (injury). If this information is not available, this section will discuss how such information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for soils and sediment, as described generally in 43 CFR §11.72. Geologic resources are specifically addressed in 43 CFR §11.72(j). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73. This will likely include an assessment of the mathematical modeling of the Hudson River which is being performed by the EPA as part of the Hudson River RRI/FS.

Task 10 - Quantify Injury to Aquatic Insects

Extent of Injury and Service Reduction: This section will describe the extent of the injury to aquatic insect communities, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(l). Much of the information needed to complete this assessment is likely not available; this section will discuss how the necessary information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for aquatic insect communities, as described generally in 43 CFR §11.72. Biological resources are specifically addressed in 43 CFR §11.72(k). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73.

Task 11 - Quantify Injury to Fish

Extent of Injury and Service Reduction: This section will describe the extent of the injury to fish, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(l). Injury and service loss will likely be assessed over both geographical and temporal ranges. If this information is not available, this section will discuss how such information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for soils and sediment, as described generally in 43 CFR §11.72. Biological resources are specifically addressed in 43 CFR §11.72(j). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73. This will likely include an assessment of the mathematical modeling of the Hudson River which is being performed by the EPA as part of the Hudson River RRI/FS.

Task 12 - Quantify Injury to Birds

Extent of Injury and Service Reduction: This section will describe the extent of the injury to birds and bird populations, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(l). Much of the information needed to complete this assessment is likely not available; this section will discuss how the necessary information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for birds and bird populations, as described generally in 43 CFR §11.72. Biological resources are specifically addressed in 43 CFR §11.72(j). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73.

Task 13 - Quantify Injury to Reptiles & Amphibians

Extent of Injury and Service Reduction: This section will describe the extent of the injury to reptiles and amphibians and their populations, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(l). Much of the information needed to complete this assessment is likely not available; this section will discuss how the necessary information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for reptiles and amphibians, as described generally in 43 CFR §11.72. Biological resources are specifically addressed in 43 CFR §11.72(j). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73.

Task 14 - Quantify Injury to Mammals

Extent of Injury and Service Reduction: This section will discuss the extent of injury to mammals and mammal populations, as detailed in 43 CFR §11.71, and then go on to detail the services lost because of the injury, as discussed specifically in 43 CFR §11.71(l). Much of the information needed to complete this assessment is likely not available; this section will discuss how the necessary information will be developed.

Baseline Services Determination: This section will discuss the baseline services determination for mammals and mammal populations, as described generally in 43 CFR §11.72. Biological resources are specifically addressed in 43 CFR §11.72(j). If information on baseline services is not available, this section will describe the information needed and discuss how it will be developed.

Resource Recoverability Analysis: This section will describe how resource recoverability will be assessed, as required by 43 CFR §11.73.

Injury Quantification - Option B

This section will discuss the injury quantification phase of the assessment, as described in 43 CFR §11.70 through 43 CFR §11.73. This will encompass the concept of natural resource services (e.g., provision of habitat, food, and recreational use) as detailed in 43 CFR §11.70 and 43 CFR §11.71 and the geographical and temporal extent to which these resources and services have been reduced from baseline conditions. Resource recoverability will be an additional component of the assessment according to §11.73. The Tasks listed below (Tasks 8 - 14) assume that all resources described above are judged worthy of quantification. This will likely not be the case, as contemplated in 43 CFR §11.71(d).

Specifically, the Trustees will quantify injury to :

  • Surface Water
  • Soil and Sediment
  • Aquatic Invertebrates
  • Fish
  • Birds
  • Reptiles and Amphibians
  • Mammals

Chapter 4 - Restoration and Compensation Determination

Introduction

Once the natural resource injury or injuries have been documented and quantified, the Trustees must calculate the dollar amount of compensation and/or identify the restoration projects and their costs necessary to restore those losses for the public. In Chapter 4, the Trustees will discuss the methodologies they may use.

At present, the Trustees anticipate preparing a "Restoration and Compensation Determination Plan" (RCDP) after completion of the injury quantification phase of the assessment. The RCDP will apply the approach outlined in this section of the Assessment Plan to identifying possible alternatives for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the injured resources. The RCDP will also select among these alternatives and set out the cost-estimating and valuation methodologies that will be applied in calculating the actual damages (monetary) figure. The RCDP will be made available for public review separately under the provisions described in 43 CFR §11.81(d)(2).

Baseline

The Trustees must consider baseline in the calculation of compensable values and in the context of restoration. Baseline data will be gathered through specific studies, historical data, and/or collected from control areas as appropriate and outlined in 43 CFR §11.72. With regards to restoration, the Trustees must be prepared to describe as completely as is possible and/or feasible the conditions that they seek to restore. Following the DOI regulations in general: "baseline data should reflect conditions that would have been expected at the assessment area had the discharge of oil or the release(s) of hazardous substances not occurred, taking into account both natural processes and those that are the result of human activities" (43 CFR §11.72(b)(1)).

Restoration

Section 11.82(b)(1)(i) states that "restoration or rehabilitation actions are those actions undertaken to return injured natural resources to their baseline conditions, as measured in terms of the physical, chemical, or biological properties that the injured natural resources would have exhibited or the services that would have been provided by those resources had the release of hazardous substances not occurred." Replacement or acquisition of the equivalent means the substitution for injured resources with resources that provide the same or substantially similar services (11.82(b)(1)(ii)).

Restoration Objectives

The goal of the Trustees is to restore the resources in the assessment area to their baseline conditions. This section will identify the objectives that will be considered.

Potential Restoration Alternatives

The process of selecting a restoration alternative begins with the identification of a reasonable number of potential alternatives, each of which may include one or more actions designed to achieve restoration, rehabilitation, replacement, or acquisition of the equivalent resources (43 CFR §11.82(b)(1)). Restoration and rehabilitation involve actions that return the injured resources to their baseline conditions (43 CFR §11.82(b)(1)(i)). Replacement and acquisition of the equivalent involve substituting for the injured resources other resources that provide the same or substantially similar services (43 CFR §11.82(b)(1)(ii)). Possible alternatives are limited to those actions that restore, rehabilitate, replace, and/or acquire the equivalent of the injured resources and services to no more than their baseline (43 CFR §11.82(b)(1)(iii)).

As discussed in 11.82(c)(1), this list of potential alternatives can range from intensive action on the part of the Trustees to natural recovery, and by 11.82(c)(2) must include an alternative considering natural recovery with minimal management actions, based upon the "no action-Natural Recovery determination as described in 43 CFR §11.73(a)(1). The selection of a restoration alternative will be arrived at by the Trustees after careful consideration of the relevant factors, including those given in 43 CFR §11.82(d). Additionally, this section will address actions required, rationale for selection and the determination of costs as described in 43 CFR §11.83(b).

Compensable Value

Compensable value is the amount of money or increase in the use and services provided by the injured natural resources required to compensate the public for the loss in services provided by the injured resources between the time of the discharge or release and the time the resources and the services those resources provided are fully restored to their baseline conditions (43 CFR §11.83(c)). Compensable values will include but not be limited to recreational losses, ecological/habitat losses, added costs of public development activities, and non-use losses. These losses will be calculated using the methodologies described in 11.83(c)(2).

Implementation of the Damage Determination

As required by the DOI regulations, the Trustees will take into account the following factors during the process of calculating natural resource damages.

Double Counting

Double counting is when a benefit or a cost is counted more than once in the damage assessment (43 CFR §11.84(c)(1)). Trustees are instructed by the regulations to avoid double counting and will take appropriate steps to identify and account for any double counting that may result from the application damage methodologies. In addition, the Trustees will factor the effects or anticipated effects of response actions into the analysis (43 CFR §11.84(c)(2)).

Uncertainty

As described in 43 CFR §11.84(d), the assessment shall explicitly incorporate and report on uncertainty in the various assumptions and variables used to calculate damages, and the effect that these factors have on the resultant damage estimate. Such uncertainty analysis shall include, where appropriate, the derivation and application of probability estimates for the important assumptions and factors used to determine damages.

Discounting

Where possible, the Trustees will estimate damages in the form of an expected present value amount and follow the guidance for selection of a discount rate as given in 43 CFR §11.84(e).

Substitutability

As part of the calculation of compensable values, the Trustees will incorporate estimates of the public's ability to substitute resource services or uses for those of the injured resources. As directed in 43 CFR §11.84(f), this substitutability will be estimated only if the potential benefits from an increase in accuracy are greater than the potential costs.

Scope of the Analysis

Trustees are required to consider the scope of the analysis before estimating compensable value. Given the historical significance of the Hudson River and the large scale and interstate aspects of the services provided, such as transportation and fish habitat, it is anticipated that the scope of the analysis will extend beyond the state level (43 CFR §11.84(h)).