New Bedford Harbor Trustee Council - Technical Advisory Committee Recommendation on Reserving Funds for Future Restoration Activities

At the Council's September meeting, the Council requested that the Technical Advisory Committee (TAC) review a September 1 letter from Alternatives for Community and Environment (ACE), on behalf of Hands Across the River (HATR), and report back to the Council with a recommendation. The TAC met on November 10, 1998 to discuss ACE/HATR's suggestion that 100% of the restoration funds be reserved for the Inner Harbor portion of New Bedford Harbor. The Inner Harbor is generally considered to be the portion of the Harbor north of the hurricane barrier.

ACE/HATR's suggestion results from their concerns over U.S. Department of Justice (DOJ) guidance provided to the Council which allowed the expenditure of settlement funds for near-term restoration activities to occur provided that, "Sufficient funds must be retained to accomplish meaningful and necessary restoration work after the U.S. Environmental Protection Agency (EPA)'s cleanup is finished".

The TAC discussed the following points before rendering a recommendation:

1. The legal definition of the restoration site in the Consent Decrees is the New Bedford Harbor Environment, which includes the Acushnet River watershed, the Harbor and the Outer Harbor portion of the site extending out to, and including, the area designated as Closed Area III.
2. There were three sources of contamination within the Harbor Environment, only one of which was located in the Inner Harbor:
   1) the Aerovox facility (located in the Inner Harbor);
   2) the Cornell Dubilier facility (located in the Outer Harbor); and
   3) the New Bedford municipal outfall (located in the Outer Harbor).
3. The Harbor Environment is composed of 1,000 acres (5.6%) in the Inner Harbor portion of the site, and 17,000 acres in the Outer Harbor portion (94.4%).
4. The settlements for the various cases resulted in approximately $10 million from the Aerovox facility and $10 million from the Cornell Dubilier facility. This does not, and should not, include the additional $10 million that is designated for natural resource damages and/or response costs and which is maintained in a separate account under the jurisdiction of the EPA, the Commonwealth, the National Oceanic and Atmospheric Administration (NOAA), and the U.S. Department of the Interior (DOI).
5. Although EPA has recently issued a record of decision for cleanup of the Upper and Lower Harbor operable unit, EPA's specific remediation decisions are still unknown with reference to how much, where, and when cleanup activities will occur. Of even greater concern is how much restoration will be conducted by EPA to mitigate these cleanup actions. It is difficult for the Council to determine how much restoration will be needed in these areas.
6. Many of the natural resources which were injured or destroyed by the releases at the Site do not reside in any single location and in developing its Restoration Plan the Council acknowledges that they must consider the impact of the release on the entire affected eco-system. Geography is not the sole determinant of injury or need for restoration. Rather we must also consider the impact on all of the natural resources (such as migratory birds, fish) which, while utilizing the Site were injured or killed because of the contamination.
7. The Council has engaged in a process whereby the public is requested to suggest restoration ideas along with the agencies. All proposals are subject to the same review process and recommendations are made to the Council for ultimate decisionmaking.
8. The Restoration Plan discussed the need for flexible planning and established an event based process for future restoration rounds. These rounds would be triggered by the attainment of additional information (i.e. remediation Record of Decisions) or the completion of cleanups in various portions of the harbor. EPA's recent issuance of the final record of decision is one such event contemplated in the Restoration Plan which allows the Council to consider a new round of restoration ideas.
9. A considerable amount of time will pass between now and when the cleanup is completed. Information and other local factors can change significantly over that period of time.
10. In the current round of funding, the Trustees have approved projects which are located both in the Inner and Outer Harbor areas. Based on experience to date, there is reason to believe that restoration projects in the Inner Harbor receive adequate consideration and funding.

After consideration of these factors, the TAC recommends that the Council not allocate a specific amount of money to the Inner Harbor for the future. To designate a specific amount of money for one area would be arbitrary at this point; to designate the full amount to the Inner Harbor would ignore the natural resources injured throughout the majority of the site. The TAC urges the Council to continue to address the restoration needs of the Acushnet River/New Bedford Harbor ecosystem as opposed to a specific location within the site.

The TAC recommends that the Council follow the adopted event based process established in the Restoration Plan and continue to offer the public and agencies the opportunity to suggest restoration ideas. This process best addresses the expected changing needs and perceptions over the next decade and puts the Council in a better position of evaluating more current information and these needs.

To insure that the DOJ guidance is followed and that sufficient funds are retained, the TAC once again recommends that 10% of the principal ($2.0 million) be designated as a target for the next round of restoration ideas. The Council is reminded that several projects from the first round (hurricane barrier box culvert, tern restoration, shellfish restoration and monitoring) are expected to require long-term funding beyond the Council's initial two year commitment. The amount to be potentially expended for these projects and the 10% amount will provide a conservative but meaningful amount to advance natural resource restoration. As argued previously, this amount could be replaced within a 2 - 3 year period given the current amount of interest earned each year.