111488

CITY OF NEWBURGH City Hall - 83 Broadway, Newburgh, New York 12550

www.citvofnewburgh'ny.gov jmcgTane@cit70fnewburgh-ny.gov

Jean-Ann McGrane, Esq., M.S. Ph. (845) 569-7301 City Manager Fax (845) 569-7370

SDMS Document September 21, 2006

Michael Negrelli Remedial Project Manager New York Remediation Branch U.S. Environmental Protection Agency 290 Broadway, 20th Floor New York, New York 10007-1866

Re: Alternative Remedial Strategies, Consolidated Iron and Metal Superfund Site, Newburgh, New York

Dear Mr. Negrelli:

The City of Newburgh (the "City") submits the following comments to the Feasibility Study and preferred remedial altemative identified by the United States Environmental Protection Agency ("USEPA or the "Agency") in its Proposed Plan dated July 2006 (the "Proposed Plan") for the Consolidated Iron & Metal Superfund Site (the "Site"). This submission supplements the City's previous written and oral comments made to the Agency regarding the Proposed Plan.

The City recognizes and appreciates the efforts of the USEPA to stabilize, cleanup and assess the Site. The location of the Site directly on the Hudson River and adjacent to the downtown area, makes it an integral part of the City's overall waterfront development plans and revitalization of the City in general. Redevelopment of the Site will bring in new jobs, increase the City's tax base and enhance the City's economic standing. It is essential, therefore, that remediation of the Site be integrated with its redevelopment.

The City understands that integration of the remediation with the redevelopment process presents certain challenges. We believe, however, that there is an exciting opportunity here for USEPA, Region II, to not only clean up the Site, but to foster redevelopment of a community that sorely needs revitalization and rejuvenation.

The C ity' s c omments t o t he P roposed P Ian, w hich are s et forth i n m ore d etail b elow, focus on protection of human health and the environment while taking into account its future reuse, including timing, cost and constmction factors. While the temptation to meet internal deadlines is great, respectfully, that should not be the driving force behind adoption of a ROD. We strongly urge the USEPA to consider a remediation plan and adopt a Record of Decision ("ROD"), which is tailored to the potential future uses of the Site, and incorporates well established cleanup protocols and pre and post development engineering and institutional controls.

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The City of Newburgh truly views the challenges of the Site as an opportunity for USEPA, Region II and the City to create a Superfund Redevelopment success story.

Redevelopment Plans For The Site

Of importance to both the City and the Agency, the City of Newburgh has made significant efforts over the past year to identify a preferred developer for the Site, and plans for its redevelopment are fully underway. On September 12, 2006, the City entered into a detailed Exclusivity and Planning Agreement with Leyland Alliance (the "Developer"), a well respected urban redevelopment firm, to advance the planning and redevelopment of the Site. Between now and Febmary 7, 2007, the Developer will undertake a community-wide Charette planning process to culminate in an agreed upon definitive and detailed development plan for the waterfront, including the Site. This plan should be finalized in or about early April, 2007. Because of the extensive planning process, the redevelopment plan should also have wide-spread support of the community, and contain far more detail than an ordinary proposal or application.

Once the plan is developed, the City and the Developer plan to enter into a Development and Land Disposition Agreement in or around June, 2007, which would provide, among other things, for land disposition procedures, proposed zoning, remediation responsibilities, various institutional controls, and other fransactional and land use agreements necessary to commence the final public review process for the proposal. Attached hereto as Exhibit " 1 " is a summary presented to the public setting forth the status of the City's waterfront development plans, including a proposed timeline for each of the actions described therein.

Integration of Remediation and Redevelopment

In light of the foregoing and the Agency's policies on integrating redevelopment plans with selected RODs, the City believes that the selected clean up actions targeted for the Site should specifically recognize that redevelopment of the Site will present opportunities for different remediation techniques and technologies depending upon future potential uses of the Site contained in the final approved redevelopment plans. While the Agency has expressed its concem with issuing a "contingent" ROD that would take into account future land use of the Site related to an "uncertain" final,Site redevelopment plan, the USEPA's position is contrary to its stated policy, which requires the Agency to consider "a range of reasonably likely future land uses," develop "a range of remedial altematives that will achieve different land use potentials," and provide "the necessary flexibility to address the technical and cost limitations, inherenf in such phased and future redevelopment efforts. See, e.g.. OSWER Direcfive No. 9355.7-04, Land Use in the CERCLA Remedy Selection Process, at p. 8; Forest Glen Mobile Home Subdivision, Niagara Falls, NY, EPA/ROD/R-02-99/105. The F orest G len amended ROD, adopted by the USEPA, acknowledged that a proposed developer was "interested in building a commercial development at the Site" and provided that "if the Site is commercially developed," a specific type of cap would be required. EPA/ROD/R-02-99/105, p. 4.'

Recognizing that by early April 2007, a specific redevelopment plan for this Site will be completed, the Agency is aware, respectfully, that there are numerous ways to stmcture the language and

' As the USEPA is aware, there are extensive administrative procedures that muPt be complied with in order to amend a ROD. See NCP § 300.825. The City, therefore, urges the USEPA to take its time to consider all of the comments to the Proposed Plan, rather than rush into adoption of a ROD now only to subsequently undergo the administrative process, including public comment, to amend the ROD.

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requirements of the ROD to accommodate the anticipated site redevelopment plan without reopening the ROD, a cumbersome and unnecessary process in this case.

The ROD could require, for example, that all areas of the Site that are developed as parking lots or include paved surfaces ("Paved Areas") under the final Site development plan, be treated differently from residential areas. The Forest Glen amended ROD, adopted by the Agency in this Region, and various other RODs throughout the country, have utilized precisely such institutional confrols, including, an assortment of future "cover systems" and "containment methods," as "protective barriers to isolate contaminants from the public and minimize the migration of liquid or other contaminants over the long term."

Paved Areas, according to the USEPA, "can be an integral part of the cover system." OSWER Directive No. 9230-0-100, Feb. 2002, Reusing Superfund Sites: Commercial Sites Where Waste Is Left On Site, at p. 22 (identifying various sites where paved surfaces are an integral part of the remedy). Here, Paved Areas should constitute engineering controls, and not be subject to the soil removal and backfilling requirements of any Proposed Plan or ROD. Non-RCRA caps, such as clay, clean soil, asphalt and concrete, once again, are routinely used by the USEPA as an accepted engineering cleanup altematives across the countiy. See^ e^. Industri-Plex Site, Wobum, MA, EPA 540/F-98/012, OSWER 9378.0-19FS, PB98-963214 (at former manufacturing site, remedy included construction of soil, clay and synthetic layers, concrete foundations and asphalt to cover contamination); OSWER No. 9230.0-85, October 2003, Reusing Superfund Sites (describing numerous Superfund sites that have been safely and productively reused and have included engineering and institutional controls). The Agency has consistently recognized "in order to be cost effective and practicable, the remedy may require creation of a long-term waste management area for containment of freatment residuals or low-level waste on a small portion of the site." OSWER Directive No. 9355.7-04 at p. 9.

Indeed, the City's approach to the USEPA's preferred altemative are completely consistent with the Agency's remedial action objectives ("RAOs") for the Site - ^e., to prevent or minimize e xposure w ith contaminated s oil a nd t o m inimize o re liminate c ontaminant m igration at the Site. EPA Region 2. Superfund Feasibility Study and Proposed Plan, Consolidated Iron and Metal Superfund Site, July 2006 at 7. The modifications proposed herein essentially combine features from USEPA's Altemative 2 (Debris Removal, Capping of Subsurface Soils and Institutional Controls) with elements of Altemative 4 (Debris Removal, Partial Excavation of Site Soils with Off-Site Disposal, Backfill with Clean Soils, Institutional Confrols and Site Management Plan).

The Agency notes in its Proposed Plan that "in the event that the clean soil cap is compromised, the altemative would cease to be protective" and "in the event that the institutional controls are not enforced or engineering controls fails, exposure to contaminated media could occur," Proposed Plan at p. 10. Respectfully, this rationale for dismissing Altemative 2 as the preferred altemative flies in the face of the Agency's own policies and success in using future engineering remedies and institutional controls to accommodate the reuse and redevelopment of such sites. See OSWER Directive No. 9355.7-04, Land Use in the CERCLA Remedy Selection Process, at p. 10; Sfrategy to Ensure Institutional Confrol Implementation at Superfund Sites, OSWER No. 9355.0-106, Sept. 2004,

Specifically, the City submits the following observations and proposals to address the discrete contaminants at the Site.

Lead

According to the USEPA's investigation of the Site, lead appears to be present at levels in excess of the soil screening criteria throughout the Site soils. The Proposed Phm would require

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Mr. Michael J. Negrelli September 21, 2Q06 Page 4

excavation of lead impacted soil over 400 ppm down to six feet across the entire Site and backfilling with clean fill.

The City recommends that the USEPA reconsider this element of the Proposed Plan for a number of independent reasons. First, the standard of 400 ppm imposes the strictest residential cleanup standard to a Site that will not be developed with single-family homes, and associated potential soil contact such as gardens and play areas directly on soil. The Site will likely be a mixed-use project, with high-density residential, commercial uses, parking lots, roadways and mosfiy, if not exclusively, impervious public space. While the City understands that the residential cleanup standard of 400 ppm for lead may be appropriate in certain areas of the Site, adopting a ROD that imposes such a standard for single family or non-impervious residential areas is unnecessary. Any aspect of the ROD that is ultimately adopted by the USEPA that is not essential for protection of human health and the environment will result in unnecessarily expensive cleanup costs and greater delay in remediation.

Second, illustrative of the need to coordinate the ROD with future redevelopment plans and land uses, it would be nonsensical to require backfilling with clean soil in areas that will only be re-excavated as part of constmction and redevelopment. Third, if trucks are used to transport the soil into and out of the Site, there will be a fremendous burden on the City's roadways, an increased risk of vehicular accidents and an increase in fugitive emissions.

The City recommends that, in lieu of excavation of 1 ead-impacted soil over 400 ppm down to six feet across the entire Site, the USEPA adopt a ROD to require excavation of lead impacted soil over 400 ppm down to the base of residential buildings, in backfill surrounding residential buildings, and to a depth of two feet in unpaved residential or public areas. For areas to be redeveloped as commercial or indusfrial buildings, the ROD should require excavation of lead-impacted soil over 800 ppm. Appropriate engineering and institutional confrols, such as designated waste areas, waste area management plans, site specific testing programs during the development process, restrictions on use of the land and local layered government enforcement, could also be combined with the City's suggested modification, to ensure maximum protection of human health and the environment, and the integrity of the pre and post development confrols.

VOCs

Since groundwater is not used as a potable drinking source and since the USEPA's Proposed P Ian w ould p rovide for r estriction o f g roundwater for u se a s a s ource o f p otable o r p rocess water, VOCs need to be addressed in the ROD only to the extent they may be a potential threat to occupants of buildings and to biological receptors or humans via the Hudson River. Altemative 4 specifies that the soils with VOC contamination exceeding the Project Remedial Goals will be excavated and removed from the Site. According to the Remedial Investigation, however, the VOC groundwater contamination extends hundreds of feet from the most likely potential sources (former underground storage tanks). Therefore, the amount of soil requiring removal could be extensive. Altemative 4, moreover, does not appear to address VOC-contaminated groundwater as a source of VOCs, which potentially poses a threat to the occupants of future on-site buildings and to the Hudson River.

The City, therefore, proposes that the ROD require a pre-design investigation of the VOCs by installing additional borings and monitoring wells, and also by conducting a soil gas survey. Borings and wells should be installed closer to the former tanks as these represent potential "hot spots" or sources that may require intensive confrol, and additional wells should be installed in appropriate locations to delineate the extent of a VOC-contaminated groundwater plume. The soil gas survey should be designed to determine whether soil gas is a potential threat to the occupants of future on-site buildings.

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Once the results of the pre-design investigation of the VOCs are available, the Agency should consider the following potential remedial altematives for this category of contaminants. The types of remedial altematives that should be evaluated based upon the results of the pre-design investigation include, at a minimum:

1. Soil removal; 2. Groundwater freatment systems, both in-situ and ex situ;^ 3. Soil vapor exfraction systems, 4. Combinations of groundwater treatment and vapor exfraction, such as air sparging in combination

with a soil vapor exfraction; 5. Sub-slab vapor barriers and vapor exfraction systems below buildings; and, 6. Natural attenuation,

PCBs

The City also suggests that the USEPA consider combining excavation of PCB-contaminated soil above 10 ppm with the aforementioned capping methods and features as a remedial altemative in areas where future land use, other than residential or public space, is contemplated. Any containment or cover would be designed to prevent migration and keep people from coming into contact with the waste.

Engineering and Institutional Controls

Exhibit "2" attached hereto contains a description of each anticipated land use at the Site, and identifies engineering and institutional confrols, as well as modifications to the USEPA's preferred altemative, which should be considered for each discrete land use.

The range of potential future uses on the Site is divided, as follows:

1. Residential Buildings 2. Exposed Soil in Residential Areas 3. Commercial/Indusfrial Buildings 4. Exposed Soil in Commercial/Indusfrial Areas 5. Paved Areas Such as at Esplanades, Plazas, Court Yards, Road Ways and Parking Areas

Conclusion

The City believes that the preferred aUemative identified in the Proposed Plan is not supported by the record, and that adoption of a ROD which includes the preferred altemative will result in an "unnecessarily restrictive and expensive" cleanup, which will result in greater delay and contentiousness in remediating the Site. These outcomes would be contrary to the interests of the City, its residents, the Agency and the environment.

In situ treatment should include Fentons Reagent, hydrogen peroxide, and ozone, at a minimum.

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Mr. Michael J. Negrelli September 21, 2006 Page 6

Put simply, the adminisfrative record here is not sufficient to support the USEPA's conclusion that the "preferred altemative provides the most cost-effective solution applying the evaluation criteria given reasonably anticipated future land use if the site." Proposed Plan at p. 12.

We encourage the Agency to give serious consideration to the City's comments, not to proceed with undue haste and to adopt a ROD that will truly ensure that the Site be returned to productive use, and once again, generate the social, economic and environmental benefits which this City sorely needs.

Please contact me immediately if you have any questions or the City can'be of any further assistance on this matter.

Very tmly yours,

Jean-Ann McGrane City Manager

cc: Mayor Nicholas Valentine Councilwoman Regina M. Angelo Councilman George Bowles Councilman Salvatore Cracolici Councilwoman Mary Ann Dickinson Geoffrey Chanin, Esq. Corporation Counsel Michael Zarin, Esq. Rodney L. Aldrich, P.E., Sterling Environmental Engineering, P.C.

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City of Newburgh City Hall - 83 Broadway

Newburgh, New York 12550 Tel. (845) 569-7301 Fax (845) 569-7370

www.cityofnewburgh-ny.gov

City of Newburgh •• Waterfront Development Update: August 2006

On April 10, 2006 the City Council unanimously selected Leyland Alliance of Tuxedo, NY (with Duany Plater-Zybert Architects) as "master developer" for 30 acres of City-owned properties on and near the waterfront. In June, the City of Newburgh retained the services of Zarin & Steinmetz as special legal counsel to represent the municipality in its negotiations with the Leyland Alliance. The City seeks to finalize and execute an Exclusivity Agreement in September 2006, the first of many anticipated steps In the development process.

Exclusivity Agreement

The draft Agreement establishes a 1-year Phase I period during which time Leyland will work with the City in performing the relevant pre-planning and due diligence activities for the Project, coordinate a planning Charrette, and if successful, enter into a Development Agreement, among other things, commencing the formal public review process, and setting forth more detailed agreements for the Project. General temis within the Exclusivity & Planning Agreement include:

o Purpose of Agreement: To establish a realistic timetable for completing Phase I, commit the parties to work in good faith to complete the planning process, agree upon a proposed conceptual Plan for the Project, and commit to negotiate a formal Development Agreement so as to proceed to formal public review.

o Exclusivity: The City shall deal exclusively with Leyland Alliance, as the Master Developer of the Waterfront Development Project, consisting of at least 30 City-owned acres. The scope and area of the Project may expand. This process, known as Phase I, shall last for a period of twelve (12) months (or longer as amended by the parties), providing there are no defaults under the Agreement. During this period, the parties shall diligently and in good faith use commercially reasonable efforts to cooperate to advance the Project.

o Planning Charrette: Leyland Alliance shall undertake in coordination with the City and its ongoing Master Plan initiative, at its cost and expense, a comprehensive Charrette planning process to develop a proposed action plan for the Waterfront Development Project. The Charrette process shall include, among other procedures, extensive due diligence and investigation, outreach to various stakeholders and other interested parties, an intensive 7-14 day public forum, and final report. The Charrette shall be completed on or before February 7, 2007, and a Final Report submitted to the City on or before Apr iH 0,2007.

o Funding: The City commits to using part of its State Planning Grant to support the Charrette process. Leyland Alliance shall make an additional contribution to cover the City's expenses for hiring expert outside consultants during Phase 1. Leyland Alliance shall indemnify the City for any actions or damages arising from or related to Leyland Alliance's entry onto the Properties for environmental testing or other similar purposes.

o Development Agreement: The Parties agree to seek in good faith to enter into a Development Agreement no later than 60 days from the submission of the final planning charrette report. The Development Agreement shall provide, among other things, the general terms and conditions related to the development of the Project based upon the Final Charrette Report, land

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valuation and disposition procedures, allocation of environmental responsibilities, default provisions, and various procedural and substantive approval requirements

o Public Review Process: Upon execution of the Development Agreement, the City shall commence the public approval process for the Project, including a comprehensive environmental review under State Environmental Quality Review Act and its implementing regulations ("SEQRA"). Subject to the public review process, the proposed Project may be approved in whole, modified, reduced in scope, or rejected in whole or part.

o Defaults: Provisions are made for tennination of the Agreement in the event that either the City or Leyland Alliance fails to perform and/or cure any of its material obligations set forth in this Agreement.

SEQRA Environmental Review

Once a proposed conceptual plan is determined following the Charrette, as described above, Leyland would prepare and submit applications to the City for the Project, including but not limited to, a potential rezoning and/or LWRP amendment The City would likely issue a Positive Declaration, requiring the preparation of an Environmental Impact Statement ("EIS"), and full environmental review under SEQRA.

The following provides a brief description of the SEQRA and other regulatory processes applicable to the review of the proposed Project.

o Designation of Lead Agency & Determination of Significance - The selection of a Lead Agency must be accomplished within 30 days of the submission of an Environmental Assessment Form. Current Intentions are for the City to assume Lead Agency status. The City would circulate a letter declaring its intent to assume Lead Agency status to other potentially involved agencies, which have "jurisdiction by law to fund, approve or directly undertake an action" related to the subject action. 6 NYCRR § 617.2(s). Following this notification, the City would be in a position to formally designate itself Lead Agency, and to issue a Positive Declaration, which would trigger the preparation of an environmental impact statement ("EIS").

o Scoping - The scoping session is intended to focus the EIS on the potentially significant adverse environmental impacts, and eliminate consideration of irrelevant or insignificant impacts. Leyland Alliance will be responsible for submitting a draft Scoping Document to the City. The draft Scoping Document will be circulated to all involved agencies, and after providing a public comment period, the Lead Agency must provide a final written Scoping Document to Leyland within 60 days of its receipt of the draft Scoping Document. See 6 NYCRR § 617.8(f).

o Draft EIS Submission & Review - Upon receipt of a final Scoping Document, Leyland's professional consultants will prepare a Draft EIS. Upon receipt of a DEIS, the Lead Agency has 45 days to determine whether it is adequate and complete for the purposes of public review. See 6 NYCRR § 617.9(a)(2). Once the DEIS is detemnined to be complete, the Lead Agency would issue a Notice of Completion of the DEIS.

o The filing of the Notice of Completion of the DEIS starts the public comment period, which must be a minimum of 30 days. See 6 NYCRR § 617.9(a)(4). For expediency sake, a Notice of Public Hearing should accompany the Notice of Completion, Given the size and nature of the Project, as well as the anticipated public attention, we recommend extending the comment period beyond the minimum 30 days.

o Final EIS Submission & Review - The FEIS should be prepared within 45 days after the close of the public hearing. See 6 NYCRR § 617.9(a)(5). The Lead Agency must prepare, file and publish a Notice of Completion of the FEIS. The City may hold another 10-30 day public comment period on the FEIS. See 6 NYCRR § 617.11(a).

o Findings Statement - Within 30 days after the filing of the FEIS, the Lead Agency and each involved agency must prepare their Findings Statement, certifying that the SEQRA requirements have been met, and determining whether the proposed Project is approvable. See 6 NYCRR § 617.11(b). The Findings Statement and the final determination may be made simultaneously.

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Final Approval - Once the Findings are adopted, the SEQRA process is completed. At that point, the Lead Agency is authorized to proceed to final substantive approval(s) for the Project.

Governmental Permits / Approvals

Following the adoption of the Findings Statements, which marks the end of the SEQRA process, Leyland Alliance would submit applications for all other necessary governmental permits and/or approvals. Some of these applications may have been submitted simultaneous with the SEQRA review. The compilation of a comprehensive list of such permits and/or approvals is difficult at this stage since the specific proposed action has yet to be determined. Nevertheless, the following pennits/approvals would likely be required from the following agencies:

o City Council (Zoning, Master Plan and/or LWRP Amendment and Land Disposition^; Waterfront Consistency Review)

o City Planning Board (Subdivision, Site Plan Approval & Waterfront Consistency Review)

o City Manager (Wastewater Discharge Permit)

o City Code Compliance Officer (Street Opening and Excavation)

o City Superintendent of Water Department (Water Take Pennit)

o Waterfront Advisory Committee (Recommendation regarding Waterfront Consistency Review)

o Orange County Planning Department (Referral pursuant to General Municipal Law)

o Orange County Department of Health (Domestic Water Distribution Approval)

o Architectural Review Commission (Viewshed & Historic District Overiay review)

o NYS Department of Environmental Conservation (Stormwater SPDES, Water Taking Permit, Water Quality Certification, Protection of Waters Permit)

o NYS Department of State Approval of LWRP Amendment^

' Article 42 of the New York State Executive Law and its implementing regulations govern the amendment of the City's Local Waterfront Revitalization Program. "Major amendments to any approved LGWRP, such as a substantial alteration in the coastal area boundary, or of applicable coastal policies, shall be reviewed in the same manner as any original LGWRP." 19 NYCRR § 601.4(c)(1). This process involves the circulation of a completed LGWRP application to all State agencies with programs affecting the coastal area, adjacent localities, the county and the regional planning board for a 60-day review and comment period. 19 NYCRR § 601.4(a) & (b).

Alternatively, "Minor amendments to any approved LGWRP, such as updates which reflect changing characteristics of the community, incorporation into the LGWRP of policies contained in the State Coastal Management Program, or adoption of local laws or ordinances which further implement the LGWRP, shall be subject to a 2 1-day period for review and comment by all parties before the secretary may render a decision on theapprovability of the amendment." 19 NYCRR § 601.4(c)(2). It is unclear at this stage whether the proposed Project will warrant a major or a minor amendment, if any.

^ Within 10 days of receiving any application affecting the City's waterfront property, a City agency must prepare a astal Assessment Form, and refer it to the Waterfront Advisory Committee ("WAC"), which is authorized to review

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Update: August 2006 Page 3 of 6

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o US Army Corps of Engineers (Nationwide (and maybe certain Individual) Permits for dredging, shoreline activity, and/or wetland)

o US EPA (Consolidated Iron Site Remediation - Consent Decree and/or No Further Acfion Letter)^

Once again, these fimeframes are for illustrafive purposes only. SEQRA and the other fimeframes can vary depending upon a variety of factors, including, quality of submissions, technical review and response turn-around times, unanficipated legal and other issues, state adjudicatory hearings, etc.

Proposed Chronology

The following is a preliminary proposed chronology:

September 2006 City & Leyland Alliance Execute Exclusivity & Planning Agreement

October 2006 Leyland Alliance & City Contract with Charrette Planner (DPZ)

Oct. 2006 - Jan. 2007 Leyland Alliance Performs Due Diligence & Prepares for Charrette

Preparafion of Appraisals to Determine Fair Mari<et Value of Properties, Environmental Testing, Feasibility Analyses

February 7,2007 Chan-ette Planning Process Complete

April 10,2007 Final Charrette Report

'une 9,2007 Execufion of Development & Land Disposifion Agreement

May 2007 Submission of Applications for Zoning, LWRP and/or Master Plan Amendments

City Designafion of Intent to Assume Lead Agency Status for Coordinated Review

and make recommendations regarding the consistency of proposed actions with the LWRP standards and conditions. See City Code § 296-5(C). The WAC must render its written recommendation within 30 days of the referral, unless extended by mutual consent. See jd. § 296-5(E). Within 30 days of its receipt of the WAC's written recommendation, the agency must issue its consistency determination.

According to the LWRP, out of the City's 30 acres of land, only the Consohdated Iron property is located within the designated "waterfi-ont" area. See LWRP, Map #2 (entitled "Planning Areas").

^ EPA held a public hearing on the RI/FS and its preferred clean-up strategy on August 7*. EPA has extended the public comment period to September 22"*̂ , and expects to issue a Record of Decision ("ROD") by the end of September. After the ROD, EPA will be sending out PRP notice letters to the City and other potentially responsible parties ("PRPs"). Based upon our preliminary review of the EPA files, the City is the 7* largest PRP, accounting for approximately just over 7% of the waste processed at the Consolidated Iron facility.

According to EPA Attorney Carol Bems, the PRP notice letter will encourage the PRPs to form a group to implement the selected clean up remedy, and presumably enter into a Consent Decree with the EPA. If the PRPs fail to "ommit to cleanup the Site, EPA has the option of issuing Unilateral Orders under Section 106 of CERCLA.

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June 2007 Declaration of Lead Agency & Adoption of Positive Declaration

July 2007

August - September 2007

September 2007

September-Dec. 2007

December 2007

January 2008

February 2008

February 2008

March-April 2008

May 2008

July 2008

August 2008

September-October 2008

Sept. 2008 - February 2009

Referrals of Zoning Amendments to Planning Board, Waterfront Advisory Committee, Architectural Review Commission and County Planning Department (GML Review)

• Reports required within 30 days

Applicant Submission of Draft Scoping Document Under SEQRA Referral of Draft Scoping Document to Involved Agencies

Scoping Sessions

Acceptance of Final Scoping Document

Preparation of DEIS

Submit Preliminary DEIS

Notice of Completion of DEIS

Joint Public Hearings on DEIS, Zoning, LWRP and/or Master Plan Amendments

Confinuation of Joint Public Hearing & Closure of Public Hearing

Prepare & Submit Draft FEIS

Notice of Completion of FEIS & Public Hearing on FEIS (optional)

Adoption of SEQRA Findings Statements

Adopfion of Zoning, LWRP and/or Master Plan Amendments

Amend Land Disposition Agreement

NYS Department of State Review and Refeaal of Proposed LWRP Amendment Other Agencies With Waterfront Jurisdiction

Conveyance of Land

Submission & Review of Applications for Governmental Pemiits /Appro >/als

o City Planning Board Site Plan Approval & Possible Subdivision

• Review of Preliminary Plat & Technical Issues

• Referrals

• County Planning Department • WAC (30-day Consistency Review) • ARC (Viewshed & Historic Overiay review and approval)

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• Public Hearing (max. 120 days) • Preliminary Plat Approval (w/in 62 days of close of public hearing) • Final Plat Submission, Review & Public Hearing • Final Approval

o NYS Department of Environmental Conservation

o NYS Department of Health

o Orange County Department of Health (Realty Subdivision)

o US Army Corps of Engineers (Nationwide Permits for dredging, shoreline acfivity and/or wetland)

o US EPA (Consent Decree or Site Deletion from NPL)

February 2009 Final Approvals From Involved Agencies

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City of Newburgh September 21, 2006 Exhibit 2, Page 1

Exhibit 2

The numbered sections below describe the City's proposed preferred remedy for each of the enumerated future potential land uses and land utilization areas.

1. Residential Buildings

a) All soil exceeding 400 parts per million (ppm) lead, will be excavated to a depth of six feet or the base of the residential building, whichever is higher, stabilized and used as fill on-site, or if not stabilized, properly disposed off-site.

b) All soil exceeding 10 ppm PCBs will be excavated to the depth of the water table and properly disposed off-site. Stabilized lead containing soil can be used as backfill up to within two feet of the desired final elevation.

c) The placement of any foundation piling shall be preceded by the installation of a boring of sufficient d iameter t o contain the p ile. The b oring s hall b e a dvanced w ith p ressure g rout sufficient to completely fill, the void created by the boring. All contaminated cuttings, grout and soil that are brought to the surface shall be collected, tested and properly disposed. The depth of the grouted boring must be at or below the lowest extent of 400 ppm lead, 10 ppm PCBs, any VOC in excess of the screening criteria, and any SVOC in excess of the screening criteria.

d) Clean backfill will be used to fill in around the walls of the residential building. e) Vegetable and crop gardens will be prohibited.

2. Exposed Soil in Public Spaces or Residential Areas

a) All soil exceeding 400 parts per million (ppm) lead, will be excavated to a depth of two feet and replaced by a minimum of two feet of clean fill. The excavated soil must be stabilized and used as fill on-site, or if not stabilized, properly disposed off-site.

b) All soil exceeding 10 ppm PCBs will be excavated to the depth of the water table and properly disposed off-site. Stabilized lead containing soil may be used as backfill up to within two feet of the desired final elevation.

c) Areas having intensive use, such as at playground equipment, must have an additional foot of clean fill.

d) Vegetable and crop gardens will be prohibited.

3. Commercial/Industrial Buildings

a) All soil exceeding 800 parts per million (ppm) lead, will be excavated to a depth of six feet or the base of the commercial/industrial building, whichever is higher, stabilized and used as fill on-site, or if not stabilized, properly disposed off-site.

a) All soil exceeding 10 ppm PCBs will be excavated to the depth of the water table and properly disposed off-site. Stabilized lead containing soil can be used as backfill up to the desired final elevation.

b) The placement of any foundation piling shall be preceded by the installation of a boring of sufficient d iameter t o contain t he p ile. The b oring s hall b e a dvanced w ith p ressure g rout sufficient to completely fill, the void created by the boring. All contaminated cuttings and grout t hat a re b rought to t he s urface m ust b e c ollected, t ested and p roperly d isposed. The

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City of Newburgh September 21, 2006 Exhibit 2, Page 2

depth of the grouted boring must be at or below the lowest extent of 400 ppm lead, 10 ppm PCBs, any VOC in excess of the screening criteria, and any SVOC in excess of the screening criteria,

c) Clean backfill or stabilized soil will be used to fill in around the walls of the commercial/industrial building.

4. Exposed Soil in Commercial/ Industrial Areas

a) All soil exceeding 800 parts per million (ppm) lead, will be excavated to a depth of two feet and replaced by a minimum of two feet of clean fill or stabilized soil. The excavated soil must be stabilized and used as fill on-site, or not be stabilized and be properly disposed off-site.

b) All soil exceeding 10 ppm PCBs will be excavated to the depth of the water table and properly disposed off-site. Stabilized lead containing soil can be used as backfill up to the desired final elevation.

c) Vegetable and crop gardens will be prohibited.

5. Paved Areas Such As Esplanades, Plazas, Court Yards, Road Ways, and Parking Areas

a) All soil exceeding 800 parts per million (ppm) lead, will be excavated to a depth of the engineered sub-base of the paved area. The excavated soil must be stabilized and used as fill on-site, or if not stabilized, properly disposed off-site.

b) All soil exceeding 10 ppm PCBs will be excavated to the depth of the water table and properly disposed off-site. Stabilized lead containing soil may be used as backfill up to the elevation upon which the engineered sub-base will be placed.

6. Areas of VOC-Contaminated Areas

a) Pre-design investigation of the VOCs. (i) Installation of soil boring and groundwater monitoring wells in former tank area

. and throughout Site to delineate extent of groundwater plume, (ii) Soil gas survey to determine whether soil gas is a potential threat to occupants of

future on-site buildings. b) Based on the results of the pre-design investigation, appropriate remedial aitemafives will be

evaluated, including: (i) Soil removal; (ii) In-situ and ex-situ groundwater treatment systems; (iii) Soil vapor extraction systems: (iv) Combinations of groundwater treatment and vapor extraction; (v) Sub-slab vapor barriers and vapor extraction systems below buildings; and, (vi) Natural attenuation.

Each area shall also be included in a Site Management Plan, including, detailed Institutional Controls.

Institutional C ontrols s hall i nclude, a mong o thers, d eed n otices, h ealth a nd s afety c onstruction p lans, limitations in special zoning districts and other local ordinances, easements and restrictive real covenants, drilling prohibitions, City oversight controls, informational tools such as notices filed in land records and advisories, site specific testing programs, and City monitoring, enforcement and permit tools.

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