United States
 

Environmental Protection 1200 Pennsylvania Avenue, N.W.
 

Agency Washington, DC 20460 September 2010 EPA O ce of Solid Waste and Emergency Response 

Support Document for the 

Revised National Priorities List 

Final Rule – Newtown Creek 
Support Document for the

Revised National Priorities List

Final Rule

Newtown Creek

S eptember 2010

Site Assessment and Remedy Decisions Branch

Office of Superfund Remediation and Technology Innovation

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

Washington, DC 20460
Newtown Creek NPL Listing Support Document September 2010

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Table of Contents

Executive Summary...................................................................................................................................iii

Introduction................................................................................................................................................iv

Background of the NPL...........................................................................................................................iv

Development of the NPL..........................................................................................................................v

Hazard Ranking System ...........................................................................................................................v

Other Mechanisms for Listing.................................................................................................................vi

Organization of this Document...............................................................................................................vii

Glossary..................................................................................................................................................vii

1. List of Commenters and Correspondence ....................................................................................1

2. Site Description ...............................................................................................................................6

3. Summary of Comments..................................................................................................................6

3.1 Support for Listing and Other Non-Opposing Comments..........................................................10

3.1.1 General Support and Support with Requests .........................................................................................10

3.1.2 Other Non-Opposing Concerns and Considerations..............................................................................11

3.2 Delay Listing...............................................................................................................................12

3.3 Purpose of Listing.......................................................................................................................12

3.4 Extent of Site...............................................................................................................................14

3.5 Liability.......................................................................................................................................15

3.6 Economic Impacts of Listing ......................................................................................................17

3.7 Remedial Investigation/Feasibility Study ...................................................................................19

3.8 Other Non-listing Activities........................................................................................................21

3.9 Additional Pathways Not Scored ................................................................................................24

3.10 Releases Below Regulatory Limit...............................................................................................25

3.11 Challenge to HRS .......................................................................................................................26

3.12 Public Health Assessment/Human Health Risk Assessment ......................................................28

3.13 Contaminated Sediment Source..................................................................................................28

3.14 Eligibility of Hazardous Waste...................................................................................................31

3.15 Hazardous Waste Quantity..........................................................................................................32

3.15.1 Unallocated Source............................................................................................................................34

3.15.2 Source Type.......................................................................................................................................35

3.15.3 Hazardous Waste/Hazardous Substances..........................................................................................36

3.16 Likelihood of Release .................................................................................................................38
Newtown Creek NPL Listing Support Document September 2010

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3.16.1 Sediment Bed Eligibility ...................................................................................................................39

3.16.2 Use of Background Samples in Establishing an Observed Release ..................................................40

3.16.3 Use of Qualified Data........................................................................................................................42

3.16.4 Results Below CRQLs.......................................................................................................................46

3.16.5 Sample Similarity..............................................................................................................................47

3.16.6 Clarity of HRS Observed Release Tables..........................................................................................54

3.16.7 Attribution .........................................................................................................................................55

3.16.8 Contamination in Mouth of Creek.....................................................................................................56

3.17 Waste Characteristics..................................................................................................................59

3.17.1 Toxicity/Bioaccumulation .................................................................................................................59

3.17.2 Bioavailability ...................................................................................................................................64

3.18 Targets.........................................................................................................................................65

3.18.1 Human Food Chain Fishery...............................................................................................................65

3.18.2 Fishery in Mouth of Newtown Creek................................................................................................66

3.18.3 Scoring of Migratory Fish .................................................................................................................68

3.18.4 Resources ..........................................................................................................................................69

3.18.5 Sensitive Environment ......................................................................................................................69

3.18.6 Potential Environmental Targets.......................................................................................................71

3.19 HRS Site Rescoring ....................................................................................................................73

4. Conclusion .....................................................................................................................................74

Attachment 1 Alternate Evaluation Tables
Newtown Creek NPL Listing Support Document September 2010

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Executive Summary

Section 105(a)(8)(B) of CERCLA, as amended by SARA, requires that the EPA prepare a list of national 

priorities among the known releases or threatened releases of hazardous substances, pollutants, or 

contaminants throughout the United States. An original National Priorities List (NPL) was promulgated 

on September 8, 1983 (48 FR 40658). CERCLA requires that EPA update the list at least annually.

This document provides responses to public comments received on the Newtown Creek site, proposed on 

September 23, 2009 (74 FR 48511). This site is being added to the NPL based on an evaluation under 

EPA’s Hazard Ranking System (HRS) in a final rule published in the Federal Register in September

2010.
Newtown Creek NPL Listing Support Document September 2010

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Introduction

This document explains the rationale for adding the Newtown Creek site in Brooklyn/Queens, New York, 

to the National Priorities List (NPL) of uncontrolled hazardous waste sites and provides responses to 

public comments received on this site listing proposal. The EPA proposed this site to the NPL on 

September 23, 2009 (74 FR 48511). This site is being added to the NPL based on an evaluation under the 

Hazard Ranking System (HRS) in a final rule published in the Federal Register in September 2010.

Background of the NPL

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA), 42 U.S.C. Sections 9601 et seq. in response to the dangers of uncontrolled hazardous waste 

sites. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization 

Act (SARA), Public Law No. 99-499, stat., 1613 et seq. To implement CERCLA, EPA promulgated the 

revised National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR Part 300, on 

July 16, 1982 (47 FR 31180), pursuant to CERCLA Section 105 and Executive Order 12316 (46 FR 

42237, August 20, 1981). The NCP, further revised by EPA on September 16, 1985 (50 FR 37624) and 

November 20, 1985 (50 FR 47912), sets forth guidelines and procedures needed to respond under 

CERCLA to releases and threatened releases of hazardous substances, pollutants, or contaminants. On 

March 8, 1990 (55 FR 8666), EPA further revised the NCP in response to SARA.

Section 105(a)(8)(A) of CERCLA, as amended by SARA, requires that the NCP include 

criteria for determining priorities among releases or threatened releases throughout the 

United States for the purpose of taking remedial action and, to the extent practicable, take 

into account the potential urgency of such action, for the purpose of taking removal 

action.

Removal action involves cleanup or other actions that are taken in response to emergency conditions or 

on a short-term or temporary basis (CERCLA Section 101). Remedial action is generally long-term in 

nature and involves response actions that are consistent with a permanent remedy for a release (CERCLA 

Section 101). Criteria for placing sites on the NPL, which makes them eligible for remedial actions 

financed by the Trust Fund established under CERCLA, were included in the HRS. EPA promulgated the 

HRS as Appendix A of the NCP (47 FR 31219, July 16, 1982). On December 14, 1990 (56 FR 51532), 

EPA promulgated revisions to the HRS in response to SARA, and established the effective date for the 

HRS revisions as March 15, 1991.

Section 105(a)(8)(B) of CERCLA, as amended, requires that the statutory criteria provided by the HRS be 

used to prepare a list of national priorities among the known releases or threatened releases of hazardous 

substances, pollutants, or contaminants throughout the United States. The list, which is Appendix B of 

the NCP, is the NPL.

An original NPL of 406 sites was promulgated on September 8, 1983 (48 FR 40658). At that time, an 

HRS score of 28.5 was established as the cutoff for listing because it yielded an initial NPL of at least 400 

sites, as suggested by CERCLA. The NPL has been expanded several times since then, most recently on 

March 4, 2010 (75 FR 9790). The Agency also has published a number of proposed rulemakings to add 

sites to the NPL. The most recent proposal was on March 4, 2010 (75 FR 9843).
Newtown Creek NPL Listing Support Document September 2010

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Development of the NPL

The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee 

on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 [1980]).

The priority list serves primarily informational purposes, identifying for the States and 

the public those facilities and sites or other releases which appear to warrant remedial 

actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the 

activities of its owner or operator, it does not require those persons to undertake any 

action, nor does it assign liability to any person. Subsequent government actions will be 

necessary in order to do so, and these actions will be attended by all appropriate 

procedural safeguards.

The NPL, therefore, is primarily an informational and management tool. The identification of a site for 

the NPL is intended primarily to guide EPA in determining which sites warrant further investigation to 

assess the nature and extent of the human health and environmental risks associated with the site and to 

determine what CERCLA-financed remedial action(s), if any, may be appropriate. The NPL also serves 

to notify the public of sites EPA believes warrant further investigation. Finally, listing a site may, to the 

extent potentially responsible parties are identifiable at the time of listing, serve as notice to such parties 

that the Agency may initiate CERCLA-financed remedial action.

CERCLA Section 105(a)(8)(B) directs EPA to list priority sites among the known releases or threatened 

release of hazardous substances, pollutants, or contaminants, and Section 105(a)(8)(A) directs EPA to 

consider certain enumerated and other appropriate factors in doing so. Thus, as a matter of policy, EPA 

has the discretion not to use CERCLA to respond to certain types of releases. Where other authorities 

exist, placing sites on the NPL for possible remedial action under CERCLA may not be appropriate. 

Therefore, EPA has chosen not to place certain types of sites on the NPL even though CERCLA does not 

exclude such action. If, however, the Agency later determines that sites not listed as a matter of policy 

are not being properly responded to, the Agency may consider placing them on the NPL.

Hazard Ranking System

The HRS is the principle mechanism EPA uses to place uncontrolled waste sites on the NPL. It is a 

numerically based screening system that uses information from initial, limited investigations -- the 

preliminary assessment and site inspection -- to assess the relative potential of sites to pose a threat to 

human health or the environment. HRS scores, however, do not determine the sequence in which EPA 

funds remedial response actions, because the information collected to develop HRS scores is not 

sufficient in itself to determine either the extent of contamination or the appropriate response for a 

particular site. Moreover, the sites with the highest scores do not necessarily come to the Agency's 

attention first, so that addressing sites strictly on the basis of ranking would in some cases require 

stopping work at sites where it was already underway. Thus, EPA relies on further, more detailed studies 

in the remedial investigation/feasibility study that typically follows listing.

The HRS uses a structured value analysis approach to scoring sites. This approach assigns numerical 

values to factors that relate to or indicate risk, based on conditions at the site. The factors are grouped 

into three categories. Each category has a maximum value. The categories are:

• likelihood that a site has released or has the potential to release hazardous substances into the 

environment;
Newtown Creek NPL Listing Support Document September 2010

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• characteristics of the waste (toxicity and waste quantity); and

• people or sensitive environments (targets) affected by the release.

Under the HRS, four pathways can be scored for one or more threats as identified below:

• Ground Water Migration (Sgw) 

- drinking water 

• Surface Water Migration (Ssw) 

The following threats are evaluated for two separate migration components, overland/flood 

migration and ground water to surface water.

- drinking water 

- human food chain 

- sensitive environments

• Soil Exposure (Ss) 

- resident population

- nearby population 

- sensitive environments

• Air Migration (Sa) 

- population 

- sensitive environments

After scores are calculated for one or more pathways according to prescribed guidelines, they are 

combined using the following root-mean-square equation to determine the overall site score (S), which 

ranges from 0 to 100: 

4

S + S + S + S = S

2

a

2

s

2

sw

2

gw

If all pathway scores are low, the HRS score is low. However, the HRS score can be relatively high even 

if only one pathway score is high. This is an important requirement for HRS scoring because some 

extremely dangerous sites pose threats through only one pathway. For example, buried leaking drums of 

hazardous substances can contaminate drinking water wells, but -- if the drums are buried deep enough 

and the substances not very volatile -- not surface water or air.

Other Mechanisms for Listing 

There are two mechanisms other than the HRS by which sites can be placed on the NPL. The first of 

these mechanisms, authorized by the NCP at 40 CFR 300.425(c)(2), allows each State and Territory to 

designate one site as its highest priority regardless of score. The last mechanism, authorized by the NCP 

at 40 CFR 300.425(c)(3), allows listing a site if it meets the following three requirements:

• Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service 

has issued a health advisory that recommends dissociation of individuals from the release;

• EPA determines the site poses a significant threat to public health; and
Newtown Creek NPL Listing Support Document September 2010

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• EPA anticipates it will be more cost-effective to use its remedial authority than to use its 

emergency removal authority to respond to the site.

Organization of this Document

The following section contains EPA responses to site-specific public comments received on the proposal 

of the Newtown Creek site on September 23, 2009 (74 FR 48511). The site discussion begins with a list 

of commenters, followed by a site description, a summary of comments, and Agency responses to each 

comment. A concluding statement indicates the effect of the comments on the HRS score for the site.

Glossary

The following acronyms and abbreviations are used throughout the text:

AALAC Ambient Aquatic Life Advisory Concentrations

Agency U.S. Environmental Protection Agency

ATSDR Agency for Toxic Substances and Disease Registry

AWQC Ambient Water Quality Criterion

BCF Bioconcentration factor

CCV Continuing calibration verification

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 

1980, 42 U.S.C. Sections 9601 et seq., also known as Superfund

CFR Code of Federal Regulations

CLP Contract Laboratory Program

COPC Contaminant of potential concern

CRP Community Relations Plan

CRQL Contract required quantitation limit

CSO Combined sewer overflow

DL Detection limit

DO Dissolved oxygen

EPA U.S. Environmental Protection Agency

EqP Equilibrium partitioning

ER-M Effects range median

ESI Expanded Site Inspection

EWVIDCO East Williamsburg Valley Industrial Development Corporation

FHA Federal Housing Administration 

FR Federal Register

GLA Greenpoint Landing Associates LLC

GMDC Greenpoint Manufacturing and Design Center

GWAPP Greenpoint Waterfront Association for Parks and Planning

HRS Hazard Ranking System, Appendix A of the NCP
Newtown Creek NPL Listing Support Document September 2010

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HRS score Overall site score calculated using the Hazard Ranking System; ranges from 0 to 

100

LOEC Lowest observed effect concentration

logkow n-octanol-water partition coefficient

MDL Method detection limit

MGP Manufactured gas plant

μg/kg Microgram per kilogram

mg/kg Milligram per kilogram

NAG Neighbors Allied for Good Growth

NCA Newtown Creek Alliance

NCMC Newtown Creek Monitoring Committee

NCP National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. 

Part 300

NOEC No observed effect concentration

NPL National Priorities List, Appendix B of the NCP

NYCDCP New York City Department of City Planning

NYCDEP New York City Department of Environmental Protection

NYCDPR New York City Department of Parks and Recreation

NYCEDC New York City Economic Development Corporation

NYCHPD New York City Housing Preservation and Development

NYSDEC New York State Department of Environmental Conservation

OSA Open Space Alliance for North Brooklyn

PAH Polycyclic aromatic hydrocarbon

PCB Polychlorinated biphenyl

PRP Potentially responsible party

RCRA Resource Conservation and Recovery Act

RI/FS Remedial investigation and feasibility study

ROD Record of Decision

SARA Superfund Amendments and Reauthorization Act

SQL Sample quantitation limit

SVOC Semi-volatile organic compound

TCLP Toxicity characteristic leaching procedure

TDL Target distance limit

TLM Target-lipid model

TOC Total organic carbon

VOC Volatile organic compound

WPCP Water Pollution Control Plant
Newtown Creek NPL Listing Support Document September 2010

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1. List of Commenters and Correspondence

EPA-HQ-SFUND-2009-0588-0004 Correspondence, dated January 20, 2009, from 

Alexander B. Grannis, Commissioner, New York 

Department of Environmental Corporation, letter 

requesting placement of the Newtown Creek site on the 

National Priorities List (NPL)

EPA-HQ-SFUND-2009-0588-0005 Correspondence, dated October 08, 2009, from Terry 

Jeng, memorandum authorizing extension of the 

comment period for EPA-HQ-SFUND-0588

EPA-HQ-SFUND-2009-0588-0006 Comment, dated October 16, 2009, from Anonymous 

Public Commenter

EPA-HQ-SFUND-2009-0588-0007 Comment, dated December 1, 2009, from Raychel Ryan, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0008 Comment, dated November 1, 2009, from Edgar Freud, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0009 Comment, dated December 3, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0010 Comment, dated December 6, 2009, from Tom 

Brooklyn, Public Commenter

EPA-HQ-SFUND-2009-0588-0011 Comment, dated December 9, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0012 Comment, dated December 21, 2009, from T. 

Rodriguez, Public Commenter

EPA-HQ-SFUND-2009-0588-0013 Comment, dated December 21, 2009, from Geraldine 

Sosa, Public Commenter

EPA-HQ-SFUND-2009-0588-0014 Comment, dated December 21, 2009, from Orlando 

Osorio, Public Commenter

EPA-HQ-SFUND-2009-0588-0015 Comment, dated December 21, 2009, from Alexandra 

Sumner, Public Commenter

EPA-HQ-SFUND-2009-0588-0016 Comment, dated December 21, 2009, from D. 

Compitello, Public Commenter

EPA-HQ-SFUND-2009-0588-0017 Comment, dated December 21, 2009, from S. House, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0018 Comment, dated December 21, 2009, from Amarilys 

Acevedo, Public Commenter
Newtown Creek NPL Listing Support Document September 2010

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EPA-HQ-SFUND-2009-0588-0019 Comment, dated December 18, 2009, from N. 

Bloomfield, Public Commenter

EPA-HQ-SFUND-2009-0588-0020 Comment, dated December 18, 2009, from Laura Asmal, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0021 Comment, dated December 21, 2009, from K. Sport, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0022 Comment, dated December 18, 2009, from Tevon 

Reddick, Public Commenter

EPA-HQ-SFUND-2009-0588-0023 Comment, dated December 18, 2009, from I. Ramos, 

Public Commenter

EPA-HQ-SFUND-2009-0588-0024 Comment, dated December 22, 2009, from Freddy 

Ogando, Public Commenter

EPA-HQ-SFUND-2009-0588-0025 Comment, dated December 22, 2009, from Tabitha 

Addison, Public Commenter

EPA-HQ-SFUND-2009-0588-0026 Comment, dated December 22, 2009, from Candice 

Reyes, Public Commenter

EPA-HQ-SFUND-2009-0588-0027 Comment, dated December 22, 2009, from Joseph 

Crowley, Member of Congress, House of 

Representatives, Congress of the United States

EPA-HQ-SFUND-2009-0588-0027.1 Comment attachment, dated December 22, 2009, from 

Joseph Crowley, Member of Congress, House of 

Representatives, Congress of the United States

EPA-HQ-SFUND-2009-0588-0028 Comment, dated December 22, 2009, from Anonymous 

Public Commenter

EPA-HQ-SFUND-2009-0588-0029 Comment, dated December 22, 2009, from Brian T. 

Coleman, CEO, Greenpoint Manufacturing and Design 

Center (GMDC)

EPA-HQ-SFUND-2009-0588-0030 Comment, dated December 21, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0031 Comment, dated December 21, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0032 Comment, dated December 21, 2009, from D. 

Richardson, Public Commenter

EPA-HQ-SFUND-2009-0588-0033 Comment, dated December 21, 2009, from Andreas 

Cohrssen, Public Commenter
Newtown Creek NPL Listing Support Document September 2010

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EPA-HQ-SFUND-2009-0588-0034 Comment, dated December 21, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0035 Comment, dated December 21, 2009, from Laura 

Hofmann, Public Commenter

EPA-HQ-SFUND-2009-0588-0035.1 Comment attachment, dated December 21, 2009, from 

Laura Hofmann, Public Commenter

EPA-HQ-SFUND-2009-0588-0036 Comment, dated December 23, 2009, from Susan 

Albrecht, Co-Chair, Neighbors Allied for Good Growth

EPA-HQ-SFUND-2009-0588-0036.1 Comment attachment, dated December 23, 2009, from 

Susan Albrecht, Co-Chair, Neighbors Allied for Good 

Growth

EPA-HQ-SFUND-2009-0588-0037 Comment, dated December 23, 2009, from Joseph 

Conley, Chairman, Community Board 2, Queens

EPA-HQ-SFUND-2009-0588-0037.1 Comment attachment, dated December 23, 2009, from 

Joseph Conley, Chairman, Community Board 2, Queens

EPA-HQ-SFUND-2009-0588-0038 Comment, dated December 18, 2009, from Kate Schmid, 

Director, Newtown Creek Alliance (NCA)

EPA-HQ-SFUND-2009-0588-0038.1 Comment attachment, dated December 18, 2009, from 

Kate Schmid, Director, Newtown Creek Alliance (NCA)

EPA-HQ-SFUND-2009-0588-0039 Comment, dated December 22, 2009, from Anonymous

Public Commenter

EPA-HQ-SFUND-2009-0588-0040 Comment, dated December 22, 2009, from L. Brenner, 

Public Commenter 

EPA-HQ-SFUND-2009-0588-0041 Comment, dated December 23, 2009, from Barbara 

Zukowski, Maspeth Holistic Psychotherapy Services 

EPA-HQ-SFUND-2009-0588-0042 Comment, dated December 18, 2009, from Wanderlin 

Tejada, Public Commenter 

EPA-HQ-SFUND-2009-0588-0042.1 Comment attachment, dated December 18, 2009, from 

Wanderlin Tejada, Public Commenter

EPA-HQ-SFUND-2009-0588-0043 Comment, dated December 23, 2009, from Jerry Ross, 

Texaco, Inc. 

EPA-HQ-SFUND-2009-0588-0043.1 Comment attachment, dated December 23, 2009, from 

Jerry Ross, Texaco, Inc.

EPA-HQ-SFUND-2009-0588-0043.2 Comment attachment, dated December 23, 2009, from 

Jerry Ross, Texaco, Inc.
Newtown Creek NPL Listing Support Document September 2010

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EPA-HQ-SFUND-2009-0588-0044 Comment, dated December 23, 2009, from Michael 

Heimbinder, Executive Director, HabitatMap; Member, 

Newtown Creek Alliance

EPA-HQ-SFUND-2009-0588-0045 Comment, dated December 23, 2009, from Cas 

Holloway, City of New York, Office of the Mayor

EPA-HQ-SFUND-2009-0588-0045.1 Comment attachment, dated December 23, 2009, from 

Cas Holloway, City of New York, Office of the Mayor

EPA-HQ-SFUND-2009-0588-0046 Comment, dated December 23, 2009, from Stephanie 

Thayer, Executive Director, Open Space Alliance for 

North Brooklyn (OSA) 

EPA-HQ-SFUND-2009-0588-0046.1 Comment attachment, dated December 23, 2009, from 

Stephanie Thayer, Executive Director, Open Space 

Alliance for North Brooklyn (OSA)

EPA-HQ-SFUND-2009-0588-0047 Comment, dated December 22, 2009, from Joseph R. 

Lentol, Assemblyman, The Assembly State of New 

York, Albany

EPA-HQ-SFUND-2009-0588-0047.1 Comment attachment, dated December 22, 2009, from 

Joseph R. Lentol, Assemblyman, The Assembly State of 

New York, Albany

EPA-HQ-SFUND-2009-0588-0048 Comment, dated December 23, 2009, from Phillip 

Musegaas, Hudson River Program Director, 

Riverkeeper, Inc. 

EPA-HQ-SFUND-2009-0588-0048.1 Comment attachment, dated December 23, 2009, from 

Phillip Musegaas, Hudson River Program Director, 

Riverkeeper, Inc.

EPA-HQ-SFUND-2009-0588-0048.2 Comment attachment, dated December 23, 2009, from 

Phillip Musegaas, Hudson River Program Director, 

Riverkeeper, Inc.

EPA-HQ-SFUND-2009-0588-0049 Comment, dated December 22, 2009, from Christopher 

Len, Staff Attorney, NY/NJ Baykeeper

EPA-HQ-SFUND-2009-0588-0049.1 Comment attachment, dated December 22, 2009, from 

Christopher Len, Staff Attorney, NY/NJ Baykeeper

EPA-HQ-SFUND-2009-0588-0050 Comment, dated December 22, 2009, from Dewey 

Thompson, Co-Chair, Greenpoint Waterfront 

Association for Parks and Planning (GWAPP)

EPA-HQ-SFUND-2009-0588-0050.1 Comment attachment, dated December 22, 2009, from 

Dewey Thompson, Co-Chair, Greenpoint Waterfront 

Association for Parks and Planning (GWAPP)
Newtown Creek NPL Listing Support Document September 2010

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EPA-HQ-SFUND-2009-0588-0051 Comment, dated December 23, 2009, from Stephen 

Levin, Public Commenter

EPA-HQ-SFUND-2009-0588-0052 Comment, dated December 29, 2009, Helen M. 

Marshall, President, Queens Borough

EPA-HQ-SFUND-2009-0588-0052.1 Comment attachment, dated December 29, 2009, Helen 

M. Marshall, President, Queens Borough 

EPA-HQ-SFUND-2009-0588-0053 Comment, dated December 23, 2009, from Thomas V. 

Fusillo, Managing Principal, ENVIRON International 

Corporation on behalf of HDH LLC

EPA-HQ-SFUND-2009-0588-0053.1 Comment attachment, dated December 23, 2009, from 

Thomas V. Fusillo, Managing Principal, ENVIRON 

International Corporation on behalf of HDH LLC

EPA-HQ-SFUND-2009-0588-0054 Comment, dated December 22, 2009, from Leah 

Archibald, Executive Director, East Williamsburg 

Valley Industrial Development Corporation 

(EWVIDCO)

EPA-HQ-SFUND-2009-0588-0054.1 Comment attachment, dated December 22, 2009, from 

Leah Archibald, Executive Director, East Williamsburg 

Valley Industrial Development Corporation 

(EWVIDCO)

EPA-HQ-SFUND-2009-0588-0055 Comment, dated December 5, 2009, from David 

Gordon, Public Commenter

EPA-HQ-SFUND-2009-0588-0056 Comment, dated December 18, 2009, from Nick 

Sherman, Operations Manager, William E. Williams 

Valve Corporation

EPA-HQ-SFUND-2009-0588-0057 Comment, dated December 23, 2009, from Daniel J. 

Toal, Paul, Weiss, Rifkind, Wharton & Garrison LLP on 

behalf of Exxon Mobile Corporation

EPA-HQ-SFUND-2009-0588-0058 Comment, dated December 22, 2009, from Irene 

Klementowicz, Public Commenter

EPA-HQ-SFUND-2009-0588-0059 Comment, dated December 21, 2009, from Julie 

Lawrence, Public Commenter

EPA-HQ-SFUND-2009-0588-0059.1 Comment attachment, dated December 21, 2009, from 

Julie Lawrence, Public Commenter

EPA-HQ-SFUND-2009-0588-0060 Comment, dated December 17, 2009, from Irene 

Klementowicz and Paul Turci, Co-Chairs, Newtown 

Creek Monitoring Committee (NCMC)
Newtown Creek NPL Listing Support Document September 2010

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EPA-HQ-SFUND-2009-0588-0060.1 Comment attachment, dated December 17, 2009, from 

Irene Klementowicz and Paul Turci, Co-Chairs, 

Newtown Creek Monitoring Committee (NCMC)

EPA-HQ-SFUND-2009-0588-0061 Comment, dated December 22, 2009, from Mark A. 

Chertok, Sive, Paget & Riesel, P.C. and the Elm Group 

on behalf of Greenpoint Landing Associates, LLC

2. Site Description

The Newtown Creek site comprises more than three miles of Newtown Creek, including the sediments 

within, on the border of Brooklyn and Queens, New York. The exact origin of the hazardous substances 

in the contaminated sediments in various portions of the Creek has not been identified due to the presence 

of multiple possible sources for each substance. The Creek, a tributary to the East River and part of the 

New York-New Jersey Harbor Estuary, trends north-northwest and forms the northwestern-most border 

between Brooklyn and Queens. The HRS evaluation for this site scored the surface water pathway. The 

source included in the site is the contaminated sediments in the Creek, supported by sampling of over 100 

surface and subsurface samples collected from February through April of 2009, and analyzed under the 

EPA Superfund Contract Laboratory Program (CLP). The HRS score is based on actual contamination of

a human food chain fishery and part of a sensitive environment. The HRS documentation record at 

proposal presented analytical data showing contamination from metals, volatile organic compounds 

(VOCs), semi-volatile organic compounds (SVOCs), and polychlorinated biphenyls (PCBs) at levels 

meeting observed release criteria in sediment samples collected at numerous locations throughout the 

length of the Creek. Fishing and crabbing for human consumption occur in the Creek. In addition, the 

Creek is considered an HRS-eligible sensitive environment since it is part of an estuary identified as a 

sensitive area under the National Estuary Program. 

In 2008, the U.S. Congress asked EPA to evaluate Newtown Creek for Superfund status and investigate 

four specific facilities along the Creek. These facilities are Phelps Dodge (the Laurel Hill site), BCF Oil, 

Quanta Resources, and National Grid (formerly KeySpan and Brooklyn Union Gas). While these 

facilities or properties are thought to be contributing to the contamination in the Creek, they are not the 

only probable or known sources of contamination. In fact, later in 2008, EPA completed an extensive 

search which indicated that there are hundreds of historic and existing possible contamination sources in 

the vicinity of Newtown Creek. The search revealed oil refineries and depots, former manufactured gas 

plants (MGPs), chemical plants, manufacturing facilities, rail yards, auto repair shops, tank cleaning 

companies, recycling and waste management facilities, various commercial enterprises, and facilities 

operated by various State and City agencies.

3. Summary of Comments

More than 55 public commenters submitted comments regarding the proposed NPL listing of the 

Newtown Creek site. More than 30 of those commenters indicated unconditional support for the NPL 

designation, while others provided support with specific requests for consideration. A few commenters 

submitted extensive technical and policy comments, including the City of New York (herein referred to as 

the City), HydroQual Inc. (herein referred to as HydroQual, on behalf of the City of New York), 

Greenpoint Landing Associates (herein referred to as GLA), ELM Group (herein referred to as ELM, on 

behalf of GLA), ENVIRON International Corporation (on behalf of HDH LLC), Texaco Inc. (herein 

referred to as Texaco), and ExxonMobil Corporation (herein referred to as ExxonMobil). 
Newtown Creek NPL Listing Support Document September 2010

7

Several commenters requested that EPA undertake various activities and include various considerations in 

performing post listing activities. These commenters included the Open Space Alliance for North 

Brooklyn (OSA); Stephen Levin, Council Member-Elect for the 33rd District; Congressman Joseph 

Crowley, Representative from the 7th district of New York; the Newtown Creek Monitoring Committee 

(NCMC); and the City. These commenters requested that EPA develop the investigation and remediation 

plans in coordination with the current uses of and future plans for the Creek. Specifically, they expressed 

concerns regarding the continued use of the Creek and waterfront access during cleanup operations, how 

various permitting arrangements will be handled, and what efforts would be implemented to minimize 

financial impact on small business. These commenters also requested that EPA ensure waterfront parks 

and developments, such as the Hunter’s Point South project and planned park at 65 Commercial Street, 

are not delayed, or that other various plans, such as the planned dredging of Newtown and Whale Creeks,

are allowed to move forward as planned. 

The City and GLA expressed concern over the economic impacts of listing the Newtown Creek site. The 

City discussed a number of projects and initiatives it considers as being potentially impacted by a 

Superfund designation of Newtown Creek. GLA asserted that listing the mouth of the Creek may impede 

the development of projects in that area and bring a stigma which would impact housing values and the 

availability of financing.

The City asserted that NPL listing could be the most effective way to remediate extensive industrial 

contamination, yet stated that it has “concerns about the potential for a listing to delay critical investments 

in infrastructure, housing, open space, and small businesses operations.” The City stated that it has 

assessed potential impacts that the NPL listing of Newtown Creek could have on ongoing and planned 

water quality and capital improvement projects and various City initiatives around the Creek. It discussed 

its concerns regarding NPL designation and the City’s planned work on combined sewer overflows 

(CSOs)

1

- determine whether ongoing sediment loading will undermine the effectiveness of any remedy;

stating that “the New York City Department of Environmental Protection (NYCDEP) has 

planned approximately $500 million of water quality improvement work in Newtown Creek, 

approximately $380 million of which may be impacted by a listing on the NPL.” The City asserted that 

EPA’s attention to, and support of the logistical demands of projects that are currently being undertaken 

by NYCDEP, the New York City Department of Housing Preservation and Development (NYCHPD), the 

New York City Department of City Planning (NYCDCP), the New York City Department of Parks and 

Recreation (NYCDPR) and other City and State agencies, is of vital importance. The City stated its 

opinion that EPA can address many potentially negative impacts by committing the appropriate resources 

and working collaboratively with the City, and impacted communities and stated that it seeks 

comprehensive written commitments from EPA that EPA will meet the shared expectations of a 

transparent process.

Texaco and ExxonMobil requested that the listing be withdrawn or delayed until further information is 

gathered. Texaco presented “four fundamental issues that should be resolved” before EPA makes its final 

decision to place the site on the NPL. In summarizing these four issues, Texaco asserted that EPA must:

- ascertain whether bacterial loading will render fish caught in the Creek unfit for human 

consumption – even after the implementation of a sediment remedy; 

- assess the effectiveness of sediment remedies that have been attempted at other similar sites with 

ongoing sediment and bacterial loading issues; 

 1 A CSO is a discharge of a mixture of storm water and domestic waste when the flow capacity of a sewer system is 

exceeded during rainstorms.
Newtown Creek NPL Listing Support Document September 2010

8

- review the effectiveness achieved at other sites to determine if long-term remedies will allow the 

Creek to become fishable and fit for recreational uses.

Texaco challenged whether placing the site on the NPL met the purpose of listing. It stated that the

“singular purpose for the HRS scoring is to make a regulatory decision as to whether a CERCLA Section 

121 remedy is necessary,” and that the site should not be listed on the NPL until it can be ascertained that 

a remedy consistent with CERCLA Section 121 can be implemented. ExxonMobil reflected the 

comments made by Texaco and stated that the ongoing sediment and bacterial loading of the Creek as a 

result of CSOs “endangers the efficacy and success of any potential remediation of sediments in the 

Creek.” 

Several commenters discussed specific considerations associated with liability. The East Williamsburg 

Valley Industrial Development Corporation (EWVIDCO) stated its concern regarding small businesses 

located on Newtown Creek, and how potential liability may affect them. Community Board No. 2 and 

Newtown Creek Alliance (NCA) requested that EPA contact all of the businesses along the Creek to 

inform them of potential liability and ways to minimize liability. ExxonMobil stated that contaminant 

contribution from ExxonMobil’s former terminal property “has not been a significant contributor to 

Newtown Creek’s current condition,” and that “there is no evidence that oil is currently seeping into the 

creek from ExxonMobil’s property.” ExxonMobil added that the City bears a substantial responsibility 

through the discharges of CSOs into the creek, and that CSOs “must be addressed before a permanent 

remedial solution to the Creek can be determined and implemented.” The City stated that it expects EPA 

to conduct comprehensive searches of industrial operators responsible for all significant sources of

contamination to the Creek.

HydroQual, Environ, and GLA contested various elements of the HRS, including more consideration of 

the actual site-specific risk posed by the site, the use of sample quantitation limits (SQLs), and the 

formula used to determine a significant increase in contaminant levels when identifying an observed 

release. ENVRION stated that the procedures and information used by EPA in the listing process do not 

adequately and scientifically evaluate the human and environmental risk posed by the site and that the site 

score is not scientifically linked to risk and unnecessarily includes areas exhibiting “de minimis” risk. 

HydroQual stated that EPA has established draft sediment quality guidelines, which considers organic 

carbon in assessing contaminant ecological threat; however, the HRS metric of “three times background” 

does not capture contaminant ecological threat. ENVIRON stated that “it seems arbitrary that sample 

measurements higher than the SQL or three times background concentration levels should define an 

observed contaminant release,” and that “the factor of three and the SQL have no relationship to an 

environmental or human health impact.” 

HydroQual submitted several comments challenging technical details associated with EPA’s HRS scoring 

of the Newtown Creek site. It stated that EPA improperly characterized the Newtown Creek sediments as 

an unallocated source and questioned if the sediment plume in Newtown Creek was an eligible source of 

contamination. Also, it questioned whether the appropriate source category and subsequent divisor used 

in the hazardous waste quantity evaluation was appropriately assigned. HydroQual asserted that the HRS 

documentation record at proposal avoids the recognition of numerous sources of contamination and that 

CSO inputs of hazardous substances into the surface water are small relative to other current sources. 

HydroQual also alleged that hazardous material testing results performed in Newtown Creek indicate that 

not all of the Creek sediments can be classified as hazardous waste, yet the HRS evaluation includes an 

overstated measure for volume based on the presumption that all the sediment in Newtown Creek is 

contaminated.
Newtown Creek NPL Listing Support Document September 2010

9

Although HydroQual agreed that there was an observed release to Newtown Creek and that a likelihood 

of release factor category value of 550 was appropriately assigned, it stated several objections to the 

evidence supporting this value. It also asserted that considering the sediment bed as a release is in 

contradiction with the stagnant nature of the Creek, and that contaminants have a low probability of 

movement. HydroQual, GLA, and ENVIRON contested downstream background samples taken from the 

Atlantic Basin, and whether they serve as adequate evidence that a release occurred to Newtown Creek. 

These commenters alleged that samples used to establish an observed release were not suitable because 

the physical properties between the background and release samples were not sufficiently similar. 

Specifically, HydroQual asserted that the comparisons of release samples to background samples were 

done on a bulk sediment basis and did not account for physical differences such as total organic content 

between sediments from these two locations. ENVIRON asserted that the background sample results 

were compromised by the failure to achieve the contract required quantitation limits (CRQLs). It stated 

that the “[s]election of Atlantic Basin as the reference site for Newtown Creek is, therefore, highly 

conservative and may not be a reasonable basis for assessing the significance of concentrations observed 

in Newtown Creek.”

HydroQual stated that the tables in the HRS documentation record at proposal “lack clarity,” and contain 

misleading language such as that the naming convention applied to Tables 1 though 4 “introduces the 

presumption that the sediment bed is a release independent of completing a comparison to background 

concentrations.” Additionally, HydroQual questioned the use of analytical results flagged with the “J” 

analytical data qualifier in the evaluation of an observed release in Newtown Creek. HydroQual stated 

that:

much of the data, especially for cadmium and other metals, used to determine releases 

were laboratory estimates, i.e., ‘J-flagged’, rather than true laboratory measurements. 

While EPA followed accepted protocols for using ‘J-flagged’ data and attempted to 

compensate for uncertainty, the release determination is compromised because of the ‘Jflagged’ estimates. Given the importance associated with the HRS score and potential 

NPL listing, alternative calculations, omitting ‘J-flagged’ estimates, should also be 

considered by EPA before reaching a final listing conclusion.

GLA and ENVIRON submitted comments opposing the establishment of the mouth of Newtown Creek as 

a part of the site. GLA asserted that the sediments in the mouth of the Creek exhibit substantially less 

contamination than the remainder of the Creek and should not be considered as a part of the site. 

ENVIRON asserted that “[s]ince PCBs were not detected in surface sediments, there is no Human Food 

Chain Threat associated with surficial sediments sampled near the mouth of Newtown Creek.”

HydroQual questioned the methodology used to assign toxicity values to the hazardous substances in the 

HRS documentation record. The City asserted that the brackish nature of Newtown Creek and the wide 

range of salinity observed in the Creek are not ideal for HRS evaluation because factors used in the HRS 

scoring methods are specific to bioaccumulation and toxicity in either fresh water or salt water. It also 

stated that Newtown Creek is scored higher than if it were scored as entirely fresh water or as entirely salt 

water. 

ELM and ENVIRON questioned whether the hazardous substances in the sediments are bioavailable to 

cause toxicity. ENVIRON asserted that bioavailability could not be adequately assessed based solely on 

sediment contaminant data. ELM contested that the chemical processes in the Creek are essential in 

determining the bioavailability and thus the potential risk or lack thereof to a potentially affected target, 

and should be considered by EPA as part of the NPL listing process.
Newtown Creek NPL Listing Support Document September 2010

10

HydroQual commented that it considered the final value assigned for the human food chain threat 

appropriate, yet asserted that the protectiveness of the New York State health advisory is not a part of the 

evaluation of the fishery. ELM asserted that the fishery evaluation disregarded the findings of fish 

population studies in the Upper New York Bay that “conclude that the fish population is composed 

primarily of migratory fish, which likely do not spend a significant portion of their lives in the Creek.” 

HydroQual stated that “[g]iven that the Newtown Creek is designated by the State of New York as a Class 

SD water body suitable for fish survival, a Sensitive Environments Rated Factor of 5 for ‘state designated 

areas for protection or maintenance of aquatic life’ is more appropriate for Newtown Creek, than the 100 

EPA assigned.” HydroQual suggested that a site-specific, rather than a Harbor-wide, sensitive 

environments factor is more appropriate for Newtown Creek. It added that the waters of the NY/NJ 

Harbor Estuary cannot be established as subject to potential contamination for a sensitive environment 

because the Estuary already meets the criteria for an observed release since “there are a number of 

Superfund sites within the NY/ NJ Harbor Estuary.”

Mr. Tom Brooklyn, Brooklyn resident, expressed concern that fish and shellfish are captured for human 

consumption in and around Newtown Creek, and that the contamination in Newtown Creek is adversely 

affecting the recreational quality of NYC waters.

3.1 Support for Listing and Other Non-Opposing Comments

Numerous commenters sent letters and notices of support or support with requests. Other commenters 

described non-opposing concerns and considerations. 

3.1.1 General Support and Support with Requests

More than 35 individuals or groups supported the listing of Newtown Creek on the NPL. The majority of 

these commenters, comprising local residents and business owners, students, recreation enthusiasts, a 

community action group, and a community representative, provided unconditional support for listing. 

The remainder of the commenters provided support for NPL listing of Newtown Creek along with some 

concerns or requests that EPA take certain actions in conjunction with the listing. The City of New York 

stated that “a listing could be the most effective way to remediate the site,” although it stated concerns 

regarding the “potential for a listing to delay critical investments in infrastructure, housing, open space, 

and small businesses operations.” These commenters, along with the City, included the Commissioner of 

the New York State Department of Environmental Conservation (NYSDEC) (under authority delegated 

by the Governor of New York), Neighbors Allied for Good Growth (NAG), Community Board #2, 

Newtown Creek Alliance (NCA), Riverkeeper, Inc., and two individuals. Their requests for EPA 

included the following:

• Coordinate closely with the City and the State.

• Allow for continued use of the Creek for recreation and commerce, and waterfront access to its 

parks and surrounding businesses during remediation to the extent possible.

• Commit to a completely transparent and public process, emphasizing community outreach, 

including to businesses along with lower income, immigrant and other special communities.

• Coordinate with and minimize logistical obstacles to businesses, providing access to or 

information about programs to support their functioning during the investigation and cleanup 

process.

• Provide a list of businesses that have dealt with the consequences of Superfund listing at 

analogous sites.

• Coordinate with relevant agencies on planned and potential infrastructure projects; minimize 

potential interruption along transportation corridors.
Newtown Creek NPL Listing Support Document September 2010

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• Designate adequate staff and funds to the project.

• Prioritize negotiations with potentially responsible parties (PRPs) to expedite the cleanup process.

• Conduct adequate monitoring to ensure health and welfare of the community.

• Consider the multi-phase, multi-year remedial investigation and feasibility study (RI/FS) work 

plan developed by NYSDEC, NY State Office of the Attorney General, and several PRPs as 

investigation and remedial planning proceed.

• Ensure the fruition of already planned or ongoing local community-supported development 

projects.

• Protect smaller businesses from unnecessary litigation and allow them to take diminutive 

settlements whenever possible.

• Work with the community, the City, and the State to achieve a more progressive storm water 

management system.

Response: EPA has added the Newtown Creek site to the NPL. Listing makes a site eligible for remedial 

action funding under CERCLA, and EPA will examine the Newtown Creek site during the RI/FS phase of 

the Superfund process to determine what response, if any, is appropriate. In response to the comments 

requesting coordination with local businesses and the community in general, as discussed in section 3.8,

Other Non-Listing Activities, of this support document, EPA will develop a Community Relations Plan 

(CRP) which will allow EPA to gather community concerns, including those of local businesses, and 

evaluate best methods to communicate and coordinate with all interested parties during the post listing 

stages of the Superfund process for the Newtown Creek site.

3.1.2 Other Non-Opposing Concerns and Considerations

Other commenters expressed certain concerns or requested that EPA consider certain elements after 

promulgation while not directly stating their position on placing the site on the NPL. These commenters 

included the Open Space Alliance for North Brooklyn (OSA); Stephen Levin, Council Member-Elect for 

the 33rd District; Congressman Joseph Crowley, Representative from the 7th district of New York; and 

the Newtown Creek Monitoring Committee (NCMC). These commenters expressed concerns for 

continued use of the Creek and waterfront access, minimizing financial impact on small business, and 

setting up workshops for small business owners. They also made requests that EPA ensure waterfront 

parks and developments, such as the Hunter’s Point South project and planned park at 65 Commercial 

Street, are not delayed. Also, commenters requested that various plans move forward, such as the planned 

dredging of Newtown and Whale Creeks, and that EPA work with the City to find ways to offer 

assistance to small business owners if they have difficulty securing insurance and/or loans for 

development. Commenters requested that EPA develop the investigation and remediation plans in 

coordination with the current uses of and future plans for the Creek

Response: The comments on waterfront parks, other developments, assisting small business owners, and

coordination of further investigation and remedial plans, are all outside of the listing process. As 

explained in section 3.8, Other Non-listing Activities, of this support document, considerations regarding 

remedy selection, implementation, and funding are not factors in the decision to list a site on the NPL and 

these activities are not part of the listing process. Therefore, the commenters’ issues on these topics are 

typically considered during later stages of the Superfund process as these activities typically occur after 

listing. Listing of a site simply informs the public that EPA has determined that the site poses sufficient 

threat to human health and the environment to warrant further investigation. It does not predetermine the 

response actions, including coordination efforts with ongoing developments. The Superfund process 

offers numerous opportunities for public participation at NPL sites, in addition to commenting on site 

listing proposals, which are available to the commenters and all of the public.
Newtown Creek NPL Listing Support Document September 2010

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3.2 Delay Listing

Comment: Texaco Inc. (herein referred to as Texaco), ExxonMobil Corporation (herein referred to as 

ExxonMobil), and Joseph R. Lentol, Assemblyman 50th District, Kings County, New York, requested that 

EPA delay promulgation of the site to the NPL until the Newtown Creek Group RI/FS effort is 

completed.. Texaco suggested that either the proposal for listing should be withdrawn or the site should 

remain proposed pending the outcome of the RI/FS, evaluations of risk, and “remedy implementability”

in view of continuing discharges. Texaco commented that it and four other companies comprising the 

Newtown Creek Group are negotiating with EPA to conduct an RI/FS of Newtown Creek to assist EPA in 

answering questions regarding sediment and bacteria loading in Newtown Creek and effectiveness of 

sediment remediation at other similar sites.

ExxonMobil stated that given the benefits of the current cooperative contribution that ExxonMobil and 

the rest of the Newtown Creek Group have made to the efforts of addressing Newtown Creek, and the 

continuing questions regarding the City’s ongoing contamination of the Creek, “[ExxonMobil] 

respectfully submit that EPA should defer its decision on listing the Site until the comprehensive 

investigation has been carried out.” 

Joseph R. Lentol, Assemblyman 50th District, Kings County, New York, urged EPA to spend more time 

in discussing directly with the community the effects listing will have on the communities surrounding

the Creek, before issuing a final decision on listing the site. While he supported the proposal, Mr. Lentol 

explained that there is confusion over whether the advance of such a designation will be at the expense of 

other open space priorities that the City is close to obtaining. 

Response: Placing a site on the NPL is not delayed to complete a thorough investigation of the site or to 

allow negotiations regarding remediation to be completed. Proceeding with the listing process need not 

inhibit efforts to determine remediation. If the Newtown Creek Group or any designated PRP wishes to 

expedite cleanup efforts, it may undertake the RI/FS and/or remedial design/remedial action stages under 

EPA supervision and pursuant to appropriate agreements with governmental authorities (under 

enforcement authorities of CERCLA or those of other statutes). Placing a site on the NPL does not 

encumber or preclude PRPs from entering into these agreements. EPA has entered into many such 

agreements before and after a site’s promulgation to the NPL, and such an alternative is available to 

others. 

Regarding dissemination of information to residents, a Community Relations Plan (CRP) is usually 

developed as part of the Superfund process and every attempt is made to ensure that community relations 

is a continuing activity designed to meet the specific needs of the community. In addition, EPA has 

attended and participated in public meetings to which it was invited. See the response in 3.8, Other NonListing Activities, of this support document for more information on the CRP.

3.3 Purpose of Listing

Comment: Texaco challenged whether placing this site on the NPL met the purpose of listing. Texaco 

stated that the 

singular purpose for the HRS scoring is to make a regulatory decision as to whether a CERCLA 

Section 121 remedy is necessary. An obvious and unavoidable prerequisite for the HRS process 

is determining that a permanent long-term remedy consistent with the statutory mandate of 

CERCLA Section 121 can be achieved.
Newtown Creek NPL Listing Support Document September 2010

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Texaco commented that CERCLA Section 121 establishes a statutory preference for remedies that are 

permanent, requiring an assessment of technologies that are designed to meet this statutory objective, and 

this assessment must consider long-term effectiveness of remedial technologies. Texaco stated that listing 

Newtown Creek on the NPL must be evaluated within the context of CERCLA legislation that gives EPA 

the authority to engage in this rulemaking. 

Texaco commented that placing the Newtown Creek site on the NPL at this time is not necessary to 

accomplish the objectives of an RI/FS and listing will only serve to create public expectations that may 

not be achievable. Texaco also stated that it is not timely to finalize the site on the NPL until it can be 

ascertained that a remedy consistent with CERCLA Section 121 can be implemented. 

Texaco asserted that EPA must address, prior to finalizing the site on the NPL, the effectiveness of 

sediment remedies that have been attempted at similar sites where “ongoing sediment and bacterial” 

sources exist as in Newtown Creek. On this issue, Texaco commented that it is unclear if EPA has 

conducted the necessary CERCLA Section 121 assessment of the effectiveness of long-term remedial 

technologies. 

Texaco provided a summary of its assessment of the legislative history of CERCLA Section 121 to 

bolster its claims that EPA must engage a permanent and effective remedy to address sediment and 

bacterial loading in Newtown Creek. Texaco summarized that by 1986 “Congress was dissatisfied with 

the implementation of CERCLA, in part, due to EPA’s perceived focus on temporary, rather than 

permanent solutions at Superfund sites.” Texaco stated that when Congress passed SARA in 1986, 

SARA added to or amended several provisions of CERCLA, such as adding “Section 121, ‘Cleanup 

Standards,’ to CERCLA, which included a stated preference for permanent solutions at Superfund sites, 

and a mandate that EPA consider the permanence of the remedy during the selection process.” Texaco 

also commented that the U.S. House of Representatives and the U.S. Senate debates make it clear that 

their intent is that EPA use permanent solutions at Superfund sites to the maximum extent practicable. 

Texaco concluded that it is not timely to finalize the site on the NPL until it is ascertained that a remedy 

consistent with statutory parameters set forth in CERCLA Section 121 can be implemented. 

Response: Contrary to the Texaco comment, the purpose of the listing process is not to make long-term 

remedy decisions. Hazardous waste remedies are evaluated in the feasibility studies that are a part of the 

RI/FS phase of the Superfund process. The listing process is explained in section 105 of CERCLA.

Section 121 of CERCLA, as amended by SARA in 1986, does not apply to the listing process. 

As illustrated by the sequence of numbered sections in CERCLA, listing comes before remedy selection. 

Permanent remedy is not selected without considerably more information than needed for NPL listing. 

The purpose of NPL listing is explained in the Federal Register Notice of February 21, 1990 (Volume 55, 

Number 35) excerpted below.

The purpose of the NPL, therefore, is primarily to serve as an informational and 

management tool. The initial identification of a site for the NPL is intended primarily to 

guide EPA in determining which sites warrant further investigation to assess the nature 

and extent of the public health and environmental risks associated with the site and to 

determine what CERCLA-financed remedial action(s), if any, may be appropriate. The 

NPL also serves to notify the public of sites EPA believes warrant further investigation.

The HRS is intended to be a “rough list” of prioritized hazardous sites; a “first step in a process--nothing 

more, nothing less” Eagle Picher Indus. v. EPA, 759 F.2d 922, 932 (D.C. Cir. 1985) (Eagle Picher II). 
Newtown Creek NPL Listing Support Document September 2010

14

The Texaco comments on remedy will be addressed either during or following the completion of the

RI/FS. The RI/FS characterizes conditions and hazards at the site comprehensively and considers 

possible cleanup alternatives. After the RI/FS is completed and EPA has recommended a preferred 

cleanup alternative, the EPA Regional Office sends to all interested parties a Proposed Plan outlining the 

cleanup alternatives studied and explaining the process for selection of the preferred alternative. At this 

time, EPA also begins a public comment period during which citizens are encouraged to submit 

comments regarding all alternatives. Once this public comment period ends, a Responsiveness Summary

is developed, which contains EPA responses to the public comments on the remedy selection. The 

Responsiveness Summary becomes part of the Record of Decision (ROD) that provides official 

documentation of the remedy chosen for the site. 

Regarding CERCLA as amended by SARA, Section 105(a)(8)(A) of CERCLA requires that the National 

Contingency Plan (NCP) include “criteria for determining priorities among releases or threatened releases 

throughout the United States for the purpose of taking remedial action and, to the extent practicable 

taking into account the potential urgency of such action, for the purpose of taking removal action.” The 

federal regulations that explain the “criteria for determining priorities” were last revised and published in 

the Code of Federal Regulations (CFR) on December 14, 1990 (55 FR 51532) as Appendix A of 40 CFR 

Part 300. As explained in the 1990 Federal Register, these regulations do not include evaluating or 

determining hazardous waste remedies.

3.4 Extent of Site

Comment: Several commenters questioned or commented on the physical extent of the proposed site. 

The City of New York (referred to herein as the City), ENVIRON International Corporation (herein 

referred to as ENVIRON), and Greenpoint Landing Associates LLC (herein referred to as GLA) all 

inquired about the uniformity of the contamination in Newtown Creek. 

The City suggested that further investigation is necessary to identify the extent of contamination 

throughout the 3.8 mile waterway to prevent a misrepresentation of the whole Creek as being 

contaminated and to assist in identifying upland sources. The City also requested that the EPA clearly 

state the geographic limits of Superfund and the scope of interest under CERCLA. The City is 

specifically interested in the spatial delineation of the site along the East River waterfront. The City also 

requested that “EPA develop clear criteria to establish technical limits for EPA jurisdiction under 

CERCLA for upland parcels within the broader Newtown Creek watershed,” and that these criteria 

include:

• Defining the standards for ground water impact below which EPA has no interest

• Setting distance limits from the Creek beyond which EPA has no interest

• Providing site-specific technical criteria (e.g., whether ground water flow from beneath a specific 

property discharges into the Creek).

HydroQual also commented that:

in scoring the Creek, while upland sources, such as soils, may have contributed to contamination 

in the Creek sediments, such upland areas are not part and parcel of an NPL designation for the 

Creek. If upland areas are to be considered, they should be viewed in the context of separate 

upland sites. 

Response: While the contaminated sediments are a continuous plume of contamination throughout the 

sampled area, including the mouth of Newtown Creek, the geographic boundaries of the site need not be 
Newtown Creek NPL Listing Support Document September 2010

15

determined at listing. Placing a site on the NPL is based on an evaluation, in accordance with the HRS, of 

a release of hazardous substances, pollutants, or contaminants. However, the fact that EPA initially 

identifies and lists the release based on a review of contamination at a certain parcel of property does not 

necessarily mean that the site boundaries are limited to that parcel. 

CERCLA Section 105(a)(8)(A) requires EPA to list national priorities among the known “releases or 

threatened releases” of hazardous substances; thus, the focus is on the release, not precisely delineated 

boundaries. Further, CERCLA Section 101(a) defines a “facility” as the “site” where a hazardous 

substance has been “deposited, stored, placed, or otherwise come to be located.” The “come to be 

located” language gives EPA broad authority to clean up contamination when it has spread from the 

original source.

 

The revised HRS (55 FR 51587, December 14, 1990) elaborates on the “come to be located” language, 

defining “site” as “area(s) where a hazardous substance has been deposited, stored, disposed, or placed, or 

has otherwise come to be located. Such areas may include multiple sources, and may include the area 

between the sources.”

On September 23, 2009 (74 FR 45811), in proposing the Newtown Creek site to the NPL, EPA stated: 

The NPL does not describe releases in precise geographical terms; it would be neither 

feasible nor consistent with the limited purpose of the NPL (to identify releases that are 

priorities for further evaluation), for it to do so. . . . [T]he HRS inquiry focuses on an 

evaluation of the threat posed and therefore the boundaries of the release need not be 

exactly defined. Moreover, it generally is impossible to discover the full extent of where 

the contamination ‘has come to located’ before all necessary studies and remedial work 

are completed at a site. . . .During the RI/FS [remedial investigation/feasibility study] 

process, the release may be found to be larger or smaller than was originally thought, as 

more is learned about the source(s) and the migration of the contamination. . . . [T]he 

known boundaries of the contamination can be expected to change over time.

Until the RI/FS process has been completed for Newtown Creek and a remedial action (if any) selected, 

the extent of contamination in the Newtown Creek area cannot be estimated, nor can the ultimate 

dimensions of the Newtown Creek NPL site be described. Even during a remedial action (e.g., the 

removal of buried waste), it may be found that contamination has spread further than previously 

estimated. 

3.5 Liability

Comment: Several commenters provided their opinions and documentation regarding the possible origins 

of contamination in the Creek. The City, Texaco, and ExxonMobil provided some historical background 

of industrial activity along Newtown Creek that started in the 1850’s and establishes the large number of 

companies that have operated along the Creek and have potentially directly polluted into the Creek. 

Texaco and ExxonMobil presented a summary of the history of their presence and operations on 

Newtown Creek. Additionally, Community Board No. 2 and NCA requested that EPA contact all of the 

businesses along Newtown Creek. 

Texaco stated that in 1991 a petroleum seep was found along the bulkhead in an old terminal and they 

entered a Consent Order with the NYSDEC in 2005 to prevent seepage which proved successful. Texaco

also stated that NYSDEC has entered into Consent Orders with many other facilities along Newtown 

Creek that all require further investigation and remediation on their respective properties. 
Newtown Creek NPL Listing Support Document September 2010

16

ExxonMobil stated that:

Seepage from ExxonMobil’s former terminal property has not been a significant 

contributor to Newtown Creek’s current condition. Contrary to certain misconceptions, 

there was never a massive spill of petroleum products from ExxonMobil or its 

predecessors into Newtown Creek and there is no evidence that oil is currently seeping 

into the Creek from ExxonMobil’s property. 

ExxonMobil also claimed that it has implemented containment and collection projects around the Creek 

to minimize and contain seeps along the Creek which, “[a]s a result of these efforts, sheens resulting from 

seepage from ExxonMobil’s properties have been eliminated.” ExxonMobil further stated that a 

petroleum seep from the Meeker Avenue site has been under control for 15 years and that the oil sheens 

that are found on the Creek are caused by untreated discharges from the City’s municipal wastewater 

treatment system during heavy rain events. ExxonMobil stated that the City bears a substantial 

responsibility through the discharges of CSO into the Creek, and notes that CSOs “must be addressed 

before a permanent remedial solution to the Creek can be determined and implemented.” ExxonMobil 

stated that based on the data for the current conditions of the Creek, “it is believed that the major drivers 

for any future remedy are unrelated to ExxonMobil or its predecessors.”

The City stated that it is concerned that CSO work and portions of the capital improvement projects may 

raise liability claims under CERCLA, which the City asserted could be responsible for the movement of 

contaminated sediments from the site to uncontaminated downstream areas (such as in-stream aeration 

and dredging leaching or suspending sediment to downstream locations). 

ELM stated it has no knowledge of historic or current releases from the GLA property, a property 

adjacent to Newtown Creek and the East River in the northwestern-most portion of the Greenpoint section 

of Brooklyn, and that the contaminant levels in the mouth of the Creek near the GLA property are lower 

than in the remaining portions of the Creek. ELM added that the contaminants of potential concern 

(COPCs) “reflect input from both upstream sources and the East River.”

The City asserted that:

without clear guidance from EPA to property owners . . . as to whether an individual 

property is a potential source of liability and if so, how to assess potential liability, the 

uncertainty may further hinder development. 

Community Board No. 2 and Newtown Creek Alliance requested that EPA contact all of the businesses 

along the Creek (particularly small businesses) to inform them of potential liability as well as ways to

minimize liability. 

The City requested that:

EPA execute a Memorandum of Agreement with the State of New York and the City of 

New York that provides liability release for past and future volunteers who agree to 

perform cleanup of contaminated property under the authority of recognized State and 

City Brownfield Cleanup Programs. 

It added that EPA currently has no agreement with the State or City that would honor remediation 

completion certificates under the Brownfield Cleanup Program or Voluntary Cleanup Program for the 28 

nearby sites, and companies receiving these certificates are concerned that they are not going to be 

released from CERCLA liability after completing the program. 
Newtown Creek NPL Listing Support Document September 2010

17

Response: Liability for cleanup at Newtown Creek is not established at the time of NPL listing. The act 

of placing a site on the NPL does not establish or reflect a decision on whether any party may be liable for 

response costs, nor is liability considered when evaluating a site under the HRS. Liability and cost issues 

are not relevant to the HRS scoring of sites which is the basis for the NPL listing of the Newtown Creek 

site. Therefore, any determination of potentially responsibility parties and any decision of the Court 

addressing liability issues are not considered at this stage of the listing process.

3.6 Economic Impacts of Listing

Comment: The City of New York and other commenters expressed concerns on the economic impact of 

listing. Their comments included concerns on the impact on capital improvement projects, delay resulting 

in additional costs, discouragement of new economic investment and development, litigation cost for 

property owners and prospective purchasers, Federal Housing Administration (FHA) financing, difficulty 

for small businesses, real estate values, planned redevelopment residential projects.

The City stated that it “has assessed potential impacts of a listing on the NPL on the ongoing and planned 

water quality and capital improvement projects and City initiatives in and around Newtown Creek.” It 

emphasized that:

Pursuant to the New York State Department of Environmental Conservation (“NYS 

DEC”) Combined Sewer Overflow Order, NYS DEC Case #CO2-20000107-8, the New 

York City Department of Environmental Protection (“NYC DEP”) has planned 

approximately $500 million of water quality improvement work in Newtown Creek, 

approximately $380 million of which may be impacted by a listing on the NPL. 

The City listed a number of projects and initiatives that are potentially impacted by the Superfund 

designation of Newtown Creek, including the Hunter’s Point South Plan, Greenpoint-Williamsburg Land 

Use and Waterfront Plan, and two New York City Department of Capital Work and Water Quality 

Improvement Projects: The Combined Sewer Overflow Abatement Work and the Capital Improvement 

Projects- East River Sludge Dock Relocation. The City stated that the department:

has committed to undertake a number of projects in Newtown Creek to reduce CSOs, 

capture floatables, increase dissolved oxygen (“DO”) levels and perform dredging. These 

projects will improve water quality, mitigate seasonal odors, and improve quality of life

in surrounding neighborhoods. 

The City also stated that:

During the planning process for the CSO program and capital improvements, NYC DEP 

has consistently reached out to and received strong support from the community and 

elected officials. The City is concerned that a final listing on the NPL could have 

negative impacts on various improvement projects already planned and budgeted for 

Newtown Creek . . . ”

The City commented that its economic analysis of a Superfund designation would have “significant 

potential economic impacts associated with delays . . . to planned investments in the area caused by an 

NPL listing.” The City asserted that “[t]he New York City Economic Development Corporation 

(“NYCEDC”) conducted an analysis of the tax impact of a Superfund designation on the area within onequarter mile radius of Newtown Creek (“Newtown Creek Corridor”).” As a result of this analysis, the 
Newtown Creek NPL Listing Support Document September 2010

18

City stated that if the “Superfund designation moves forward and delays these projects ... it will cost the 

City between $515 million and $743 million in lost tax revenue depending on the length of the cleanup.” 

The City emphasized that:

Without adequate commitment from EPA, listing Newtown Creek on the NPL could 

delay or halt planned improvements and result in additional costs to the City. These are 

undesirable impacts for any project, but particularly undesirable in this context given the

current economic climate.

The City expressed concerns regarding the planned developments around the Creek, stating that “listing 

on the NPL could deter economic investment in the vicinity of the Creek.” It also added that listing could

complicate public and private financing; cause property owners along the waterfront to be caught up in 

massive complex expensive CERCLA litigation; decrease appraised property values; complicate 

financing involving the Federal housing Administration (FHA); and have negative impacts on business 

along the Creek, especially concerning the ability to obtain financing. The City requested that EPA make 

active efforts to avoid disruptions to the local economy during the investigation and remedial program,

and seeks explicit assurances from EPA to this effect.

GLA stated that “listing the mouth of the Creek would place a Superfund site in the midst of the locus of 

substantial residential redevelopment efforts...” GLA asserted that “[l]umping together the less 

contaminated mouth of the Creek with the much more contaminated remainder of that water body 

unfairly attaches a stigma to these properties, and makes financing more difficult...” GLA further 

asserted that “listing of the [Creek] mouth may impede the development of approximately 4,000 units of 

desperately needed middle-class and affordable housing unit.” GLA stated the Department of 

Environmental Protection (NYCDEP) has developed a plan to remove the East River sludge storage tank, 

which serves the Newtown Creek Water Pollution Control Plant (WPCP). GLA added that NYCDEP is 

in the midst of implementing this plan and “[t]he overall plan would cost upward of $100 million, which 

could be jeopardized by the listing.” 

GLA also commented that studies of real estate values adjacent to contaminated properties demonstrate 

that “NPL listing carries a stigma that adversely impacts property values.” Commenting on Hunter’s 

Point South and other redevelopment projects, GLA added that “[i]t may be difficult to obtain financing 

for residential dwelling on a Superfund site given the drop in land values - particularly in light of 

USEPA’s acknowledgement that the cleanup would probably not occur until fifteen years hence.” 

An anonymous public commenter while supporting the listing also stated that “[t]he Creek’s pollution 

carries a stigma” and that “[t]here may be a slight decrease in property value, however, over time, with 

the completion of the Superfund cleaning; the property will have more value.” L. Brenner, a public 

commenter, also stated, “[c]urrently, the Creek’s pollution carries a stigma which is detrimental to 

property value.” 

EWVIDCO commented that it is “deeply concerned about the impact that a Superfund designation would 

have on the 1000 industrial businesses nearby the Creek and the 33,000 residents that they employ.”

However, EWVIDCO expressed its “fervent desire to have Newtown Creek cleaned up” (without 

specifying a mechanism). EWVIDCO stated its concern that small businesses located on Newtown Creek 

may be identified by the EPA as a “potentially responsible polluter” when they cannot afford to pay the 

cleanup costs. EWVIDCO also expressed concern regarding the “enforcement assumption” under 

Superfund. In particular, EWVIDCO expressed concern about the following issues and requested that 

EPA provide information and/or clarification on each of these issues:
Newtown Creek NPL Listing Support Document September 2010

19

• the continued availability of financing and insurance for businesses, especially those engaged in 

expansion;

• property owners' ability to transfer or sell property during the long investigation and cleanup 

period;

• direct operational impact cleanup activities will have on adjacent firms, especially firms that use 

the Creek for transport;

• small business liability if either the EPA or one of the “big five” identifies them as a potentially 

responsible polluter. 

Response: Any negative impacts noted by the above commenters would be engendered by the

contamination in the area, not by placing the site on the NPL. In fact, listing will result in positive 

economic impacts when the site contamination has been addressed. The commenter neglects the 

possibility property values and other economic attributes of the area are already affected by current public 

knowledge of contamination. While NPL listing certainly provides additional public information on the 

Newtown Creek contamination, it also provides opportunity for residents, business owners, investors and 

potential investors to gain detailed knowledge and express their concerns and ideas for final solutions in 

the public forums offered during other phases of the Superfund process. 

Both costs and benefits can be associated with listing a site. Among the benefits associated with listing a 

site on the NPL are increased health and environmental protection as a result of increased public 

awareness of potential hazards. In addition to the potential for federally financed remedial actions, the 

addition of a site to the NPL could accelerate privately financed, voluntary cleanup efforts. Listing sites 

as national priority targets also may give States increased support for funding responses at particular sites. 

As a result of the additional CERCLA remedies, there will be lower human exposure to high-risk 

chemicals, and higher quality surface water, ground water, soil, and air. Therefore, it is possible that any 

perceived or actual negative fluctuations in property values or development opportunities that may result 

from contamination may be countered by positive fluctuations when a CERCLA investigation and any 

necessary cleanup are completed.

Regarding the commenters’ concerns for the impact of site listing on remedial activities and the attendant 

costs, the discussion of costs in the Federal Register is by necessity only of a general nature. The 

proposed rule clearly states that including a site on the NPL does not cause EPA necessarily to take 

remedial action, or that any action is required by, nor liability for site response costs assigned to, any 

party or the owner of any specific party (74 FR 48511). Any Agency actions that may impose costs on 

firms are based on discretionary decisions and are made on a case-by-case basis. Also, responsible parties 

may bear some or all the costs of the RI/FS and subsequent work, or the costs may be shared by EPA and 

the States. Therefore, expenditures cited by the commenters are associated with events that occur during 

a different stage of the Superfund process, not with the listing itself. However, EPA is aware of the City’s 

cleanup projects and will consider them while determining further actions

3.7 Remedial Investigation/Feasibility Study

Comment: The City, Texaco, ExxonMobil, and NCMC commented on the designing and performing of 

an RI/FS. The City requested that EPA promptly initiate a remedial program and engage a 

comprehensive investigation to identify all historical contributions of contaminants to Newtown Creek 

sediments, including operations of entities under State Consent Orders or under the jurisdiction of other 

State or Federal programs. The City also requested that EPA consider the use of “spatially defined 

operable units” for the purpose of accomplishing the most expeditious and effective cleanup. It explained 

that the remedial program for Newtown Creek could distinguish more highly contaminated areas in the 

upper reaches of the Creek from less contaminated areas near the mouth of the Creek. It added that this 
Newtown Creek NPL Listing Support Document September 2010

20

approach could enable greater flexibility in the consideration of interim removal actions. The City 

additionally requested that EPA investigate and pursue enforcement of ongoing illegal discharges from 

unpermitted pipes, conveyances and ground water into Newtown Creek, and that the EPA conduct its 

remedial program with the most comprehensive form of community participation.

The City stated that in a letter dated January 20, 2009, from New York State Department of 

Environmental Conservation Commissioner Alexander Grannis, recommending Newtown Creek for NPL 

consideration, Commissioner Grannis “strongly suggested” that a work plan submitted by a group of five 

responsible parties known as the Newtown Creek Group, “be considered in any future actions USEPA 

may have for the Creek.” The City included Commissioner Grannis’ letter dated January 20, 2009, as 

Appendix A to its comments. This letter is also provided in the EPA docket for the Newtown Creek site 

(Docket No. EPA-HQ-SFUND-2009-0588-0004).

The City commented that it received from EPA the Newton Creek Group’s Creekwide RI/FS work plan

(referred to as the “Work Plan”) for review during the NPL comment period for the Newtown Creek site. 

The City provided its assessment of the Work Plan as Appendix B to the City’s comments and concludes 

that “it [the Work Plan] fails to provide a sufficient Remedial Investigation scope to support a Feasibility 

Study or produce a remedy that would be protective of human health and the environment.” The City 

requested EPA critically evaluate the Newtown Creek Group Work Plan for Newtown Creek, and 

summarized deficiencies in the Work Plan as : 1) insufficient scope of proposed field work and research 

to produce adequate data to support a proper Feasibility Study, Record of Decision and Remedial Action 

that would be protective of human health and the environment; 2) improperly designed Remedial 

Investigation elements that are insufficient to provide data or information to support the goals of the 

Remedial Investigation or Feasibility Study (including artifacts of the Work Plan originally submitted to 

NYS DEC, which had a short-term focus for deliverables and was not conceived or intended to satisfy the 

Superfund process); and, 3) an inaccurate and incomplete Conceptual Site Model that fails to recognize 

numerous historical industrial sources of contamination or incorporate informative and illuminating 

existing environmental data for Newtown Creek. 

Texaco commented that the RI/FS can be structured to answer questions regarding remedy 

implementation. Texaco stated that it and four other companies (the “Newtown Creek Group”) are 

negotiating with EPA to conduct an RI/FS of Newtown Creek to assist EPA in answering questions 

regarding sediment and bacteria loading in Newtown Creek and the effectiveness of sediment remediation 

at other similar sites. Texaco concluded that timely activities would be for EPA to enter into an 

Administrative Order on Consent with the Newtown Creek Group to perform an RI/FS, as well as to 

identify and notify other potentially responsible parties to assist in the process and participate in the 

funding of the RI/FS.

ExxonMobil commented that it has been working voluntarily with other potentially responsible parties to 

develop an investigation and remediation plan for Newtown Creek. It asserted that the complexity of the 

potential sources of contamination in the Creek warrants that the first step in determining remedial action 

is “scientifically sound investigation of current and past contamination sources to determine the 

appropriate course of action and to evaluate the responsibility for the Creek’s conditions.” ExxonMobil 

added that in this spirit, it has been working with the Newtown Creek Group, which came together at the 

request of the New York State Attorney General in coordination with the New York Department of 

Environmental Conservation, and has continued to work together as EPA has taken the lead on Newtown 

Creek. ExxonMobil stated:

The NCG is developing a comprehensive investigative plan to determine the 

environmental condition of the Creek and identify appropriate remedial actions. The goal 

of the comprehensive investigation, which will be paid for by potentially responsible 
Newtown Creek NPL Listing Support Document September 2010

21

parties, is to understand both historic and current sources of pollution in order to develop 

an effective plan to address the Site. 

The Newtown Creek Monitoring Committee (NCMC) stated that it “supports the cleanup of Newtown 

Creek in the most expeditious manner possible,” and sets forth a number of considerations it believes are 

important in achieving that objective, including the continuation of planned dredging projects, the 

preservation of Newtown Creek Nature Walk, and the commitment of the appropriate level of resources 

to the project.

Response: The Remedial Investigation/Feasibility Study is a separate stage of the Superfund process that

takes place after a site is proposed to the NPL (see section 3.3, Purpose of Listing, of this support 

document). As such, comments pertaining to the RI/FS do not affect the HRS score or impact the listing 

process. During the course of the Superfund process, the public will have the opportunity to comment on

EPA’s activities.

3.8 Other Non-listing Activities

Comments: Several commenters, including the City, Texaco, ENVIRON, ExxonMobil, New York/New 

Jersey Baykeeper, Riverkeeper, Inc., and several others, requested EPA action on or information 

regarding activities that typically are associated with or follow placing a site on the NPL but are not part 

of the listing process. These requests covered a variety of topics, including determining the breadth of the 

investigation, determining site-specific risk, selection of remedial actions, identification of potentially 

responsible parties (PRPs), financing the cleanup, public participation, coordination with local and State 

governments, protection of innocent landowners, estimate of timelines for project activities, and 

coordination with preexisting remediation and development projects. Specific non-listing topics raised by 

the commenters are listed below.

Breadth of Remedial Activities

GLA questioned the breadth, approach, and the effectiveness of the remediation of Newtown Creek and 

whether various aspects of the cleanup had been considered. Specifically, GLA asked if EPA had 

considered the projected bacterial loading information in the Creek, what current bacterial levels currently 

exist at different points in the Creek, and what the affects of aeration activities on bacterial levels would 

be. Also, GLA asked whether dredging would result in an increase in water quality parameters such as 

dissolved oxygen. 

Texaco commented that, if EPA determines that NPL listing would not result in the Creek being fishable 

or fit for recreational activities, a premature NPL listing will only exacerbate false expectations. 

Also, Texaco questioned whether the technologies employed to remediate other sediments were effective 

in preventing recontamination. 

Enforcement during Planning and Remediation 

NCA discussed that it expects EPA to consider a strict enforcement of water quality criteria and property 

remediation goals.

Coordination with Business and City/State Project Interests

Several commenters including the City, GLA, NCA, and Greenpoint Waterfront Association for Parks 

and Planning (GWAPP) commented on the need to coordinate with development projects and business 

operations. Commenters highlighted the fact that Newtown Creek is an active, urban waterway with 

several businesses and project plans, and that EPA would need to coordinate with these interests to 

maintain business continuity and employment in the area. The City requested EPA’s coordination with 
Newtown Creek NPL Listing Support Document September 2010

22

various New York State and New York City development plans and strategies, and an intergovernmental 

collaboration across all City, State, and Federal entities involved with the site. Brian T. Coleman, CEO, 

Greenpoint Manufacturing and Design Center (GMDC), had several concerns regarding the impact on 

small business operations from Superfund listing, including how EPA will protect small business interests 

along the Creek. 

Public Outreach

Several commenters including the City, Joseph R. Lentol, Assemblyman, State of New York, Susan 

Albrecht, Co-chair, Neighbors Allied for Good Growth, and Julie Lawrence, Brooklyn resident, requested 

EPA effectively communicate with the community using the appropriate tools and resources, the various 

aspects of the Superfund process and its potential effects on the area. Specific activities requested by 

commenters covered a variety of topics, including:

• Requests for EPA to give additional consideration to those members of the community who have 

limited access to information who may be the most directly affected, such as the elderly, and 

lower-income or immigrant populations. 

• Requests for EPA to assure the continued safety of sensitive subpopulations such as day care 

centers, schools, and senior facilities during the Superfund process. 

• Requests for commitments from EPA to address various aspects of public outreach, including 

issues with zoning changes, safety issues, and access to the Creek.

• Requests for EPA to develop committees to facilitate communication between various local, state, 

and federal entities. 

Investigations of Historical Contributions of Contamination

The City requested that EPA investigate all historical contributions of contaminants to the Newtown 

Creek sediment, and conduct a comprehensive PRP search to identify current and historic industrial 

operators responsible for the significant sources of contamination.

Commitment of Resources

NCMC, the City, and other commenters requested that EPA commit the necessary resources or technical 

collaboration in order to achieve a resolution at the site. The City and ExxonMobil requested EPA take a 

collaborative approach which pools technical resources and technologies in order to achieve a more 

efficient and reliable investigation and ultimate resolution. Also, the City requested that “EPA dedicate 

remedial program staff to provide direct and timely engagement with the City and surrounding 

communities” during the entire remedial program.

NCMC discussed the level of complexity involved with the efforts associated with clean-up of Newtown 

Creek and requested that EPA “commit the requisite resources necessary to manage what could be one of 

its largest sites.”

Timelines and Expediting Efforts

Several commenters requested the expedited completion of various stages of the Superfund process and 

the establishment of timelines for significant accomplishments. Other commenters requested EPA 

expedite permitting and regulatory review processes so that work can be completed in a timely manner on 

various redevelopment projects. 

Coordination with Other Remedial Projects 

Several commenters, including the City, raised concerns over the potential interaction between ongoing or 

planned remediation projects and the Superfund designation of Newtown Creek. Such topics included:
Newtown Creek NPL Listing Support Document September 2010

23

• Complications that may arise out of developers’ interest in enrolling in the New York State 

Brownfield Cleanup Program or the City’s Local Brownfield Cleanup Program 

• Requests that EPA work with the City and the State of New York to address CERCLA liability 

releases for volunteers of State or City cleanup programs. 

• The compatibility of Superfund with the performance of required remedial investigations or 

remedial actions already underway in Newtown Creek, such as the existing aeration system.

CSO, Stormwater Discharge, Sediment Loading

Some commenters, including the City, HydroQual, Texaco, and ExxonMobil, questioned or commented 

on issues concerning CSOs, sediment loading, and remediation efforts on the proposed site. HydroQual

commented that during precipitation events CSOs discharge directly into Newtown Creek. The City is 

concerned with planned work that may later be found to be inconsistent with, or otherwise interfere with, 

the performance of required remedial actions. Texaco stated that there are no natural freshwater flows 

into Newtown Creek; it should be determined whether ongoing sediment and bacterial loading will 

undermine the effectiveness of any remedy prior to the abatement of the ongoing sedimentation. Texaco 

listed a number of questions on bacterial loading which it feels remains unanswered and impacts EPA’s 

ability to achieve a permanent remedy for Newton Creek. Texaco questioned whether the city will meet 

the goal of making Newton Creek fishable and capable of supporting recreational uses in the foreseeable 

future. Texaco also asserted that the City’s plan for CSO abatement will reduce CSO discharge up to 

66%, but total untreated discharge will remain over 1 billion gallons per year. Texaco stated that it does 

not believe the 2005 CSO Consent Order will allow for effective cleanup of Newtown Creek and 

expressed that listing should not occur until it is apparent that a long term remedy can be achieved. 

Texaco and ExxonMobil expressed concern that ongoing problems associated with CSOs must be 

addressed before a permanent remedial solution can be determined and achieved. Edgar Freud stated that 

bypass events occur at the wastewater treatment facility nearly 30 times per year and are most often the 

result of high flow rates during precipitation events. GLA requested EPA study the fluvial mechanics of 

the surface water system associated with the site. 

Response: Considerations regarding remedy selection, implementation, and funding are not factors in the 

decision to list a site on the NPL and these decisions are not made at the listing stage. Therefore, the 

commenters’ questions on these topics are addressed during other stages of the Superfund process as 

these activities typically occur after listing. Listing of a site simply informs the public that EPA has 

determined that the site poses sufficient threat to human health and the environment to warrant further 

investigation. It does not predetermine the response actions. The Superfund process offers numerous 

opportunities for public participation at NPL sites, in addition to commenting on site listing proposals, 

which are available to the commenters and all of the public. 

To the extent practicable, the EPA Regional Office2

• Public meetings at which EPA presents a summary of technical information regarding the site and 

citizens can ask questions or comment.

develops a Community Relations Plan (CRP) before 

RI/FS field work begins. Pursuant to 40 C.F.R. 300.430(c), the CRP is the “work plan” for community 

relations activities that EPA will conduct during the entire cleanup process. In developing a CRP, 

Regional staff interview State and local officials and interested citizens to learn about citizen concerns, 

site conditions, and local history. This information is used to formulate a schedule of activities designed 

to keep citizens apprised and to keep EPA aware of community concerns. Typical community relations 

activities may include:

• Small, informal public sessions at which EPA representatives are available to citizens.

 2 For Newtown Creek Region 2 outreach information see the following webpage: 

http://www.epa.gov/region02/superfund/npl/newtowncreek/
Newtown Creek NPL Listing Support Document September 2010

24

• Development and distribution of fact sheets to keep citizens up-to-date on site activities.

For each site, an “information repository” is established, usually in a library or town hall, containing 

reports, studies, fact sheets, and other documents containing information about the site. The EPA 

Regional Office continually updates the repository and ensures that the facility housing the repository has 

copying capabilities.

After the RI/FS is completed and EPA has recommended a preferred cleanup alternative, the EPA 

Regional Office sends to all interested parties a Proposed Plan outlining the cleanup alternatives studied 

and explaining the process for selection of the preferred alternative. At this time, a public comment 

period begins during which citizens are encouraged to submit comments regarding all alternatives. After 

this public comment period ends, a Responsiveness Summary is developed, which contains EPA 

responses to public comments. The Responsiveness Summary becomes part of the Record of Decision 

(ROD), which provides official documentation of the remedy chosen for the site.

Every attempt is made to ensure that community relations is a continuing activity designed to meet the 

specific needs of the community. Anyone wanting information on a specific site should contact the 

Community Relations staff in the appropriate EPA Regional Office.

3.9 Additional Pathways Not Scored

Comment: HydroQual stated that EPA’s decision to not score the ground water, soil exposure, and air 

pathways is technically supportable. It provided the following as rationale for its position:

The absence of water supply; the low permeability of the surficial sediment deposits 

which limit the groundwater pathway; the organic rich nature of the upper sediments 

which help to limit migration potential via groundwater; and the virtually absent potential 

for air impacts from this water body, all indicate that these pathways are irrelevant. . . For 

all of these reasons, the groundwater, soil, and air pathways are not considered further.

Response: The HRS does not require scoring all four pathways if scoring those pathways does not 

change the listing decision. However, EPA did not state that the ground water, soil, and/or air pathways 

are irrelevant for Newtown Creek. Instead, as indicated on the cover sheet of the HRS documentation 

record at proposal, “...Ground Water, Soil Exposure, and Air Pathways might be evaluated further during 

future investigations because evaluation of those pathways might lead to identification of contributing 

sources of sediment contamination.”

To the extent practicable, EPA attempts to score all pathways that pose a significant threat. If the 

contribution of a pathway is minimal to the overall score, in general, that pathway will not be scored.

The HRS is intended to be a “rough list” of prioritized hazardous sites; a “first step in a process--nothing 

more, nothing less” Eagle Picher Indus. v. EPA, 759 F.2d 922, 932 (D.C. Cir. 1985) (Eagle Picher II). 

EPA would like to investigate each possible site completely and thoroughly prior to evaluating a site for 

proposal to the NPL, but EPA must reconcile the need for certainty before action with the need for 

inexpensive, expeditious procedures to identify potentially hazardous sites. In this case, the HRS site 

score considering only the surface water pathway was 50.00, well above the cutoff score of 28.50. Hence, 

there was no need to expend resources evaluating other pathways
Newtown Creek NPL Listing Support Document September 2010

25

3.10 Releases Below Regulatory Limit

Comment: HydroQual commented that the HRS documentation record states that “[m]etals, (including 

copper), PCBs, SVOCs, and VOCs have all been detected at concentrations exceeding surface water 

quality criteria in CSO and storm water discharges to Newtown Creek.” HydroQual then emphasized that 

water quality criteria are applicable to surface waters, not effluents. HydroQual asserted that the CSO 

characterized by EPA are more accurately characterized as contaminant conveyors to which surface water 

quality standards do not apply. Environ and HydroQual also commented that the contaminant levels in 

the Creek were below various regulatory criteria, including NYSDEC sediment quality values, such as the 

lowest observed effects concentrations for polycyclic aromatic hydrocarbons (PAHs), and State soil 

cleanup levels, and EPA’s “no observed effect concentration” for PAHs.

Response: Whether or not ambient water quality criteria were properly compared to contaminant levels 

in effluents or the contaminant levels in the Creek used to identify observed releases (or for other 

purposes) is not relevant to the HRS evaluation of this site; these comparisons were not used in the HRS 

scoring of the site. 

First, the discussion comparing contaminant levels in discharges to ambient water quality criteria was 

presented only for the purpose of illustrating the relative magnitude of hazardous substance 

concentrations in discharges to Newtown Creek. This finding was not used in the HRS scoring of the 

site. 

Furthermore, contaminant levels need not be above regulatory criteria to be used in identifying releases or

for other HRS scoring purposes. CERCLA Section 105(a)(8)(B) directs EPA to list on the NPL 

“releases” of hazardous substances, pollutants, and contaminants according to specific criteria set out in 

CERCLA Section 105(a)(8)(A). The definition of “release” in CERCLA Section 101(22) exempts certain 

releases from its scope, but it does not exempt releases below regulatory limits, and even if discharges 

occur within regulatory limits set by those Federal laws enumerated in CERCLA Section 101(10) the 

discharges may be considered releases under CERCLA and, if appropriate under the HRS, placed on the 

NPL. CERCLA exempts Federally-permitted releases only from the notification (Section 103(a)) and 

cost-recovery (107(j)) sections of the statute; such releases remain subject to the other sections of the 

statute.

As the Agency explained regarding observed releases specifically, on July 16, 1982, when responding to 

public comments on the proposed (original) HRS (47 FR 31188), and again on September 8, 1983 (48 FR 

40665), the idea that releases within regulatory limits should not be considered “observed releases”

specifically, and not used in general, was rejected. As the Agency noted in 1982:

emission or effluent limits do not necessarily represent levels which cause no harm to 

public health or the environment. These limitations are frequently established on the 

basis of economic impacts or achievability.

By contrast, an observed release represents a 100 percent likelihood that substances can migrate from the 

site (47 FR 31188, July 16, 1982).

Section 2.3 of the present HRS (55 FR 51589, December 14, 1990) states that an observed release can be 

established either by direct observation or by chemical analysis. An observed release by chemical 

analysis has occurred when a contaminant is measured significantly above background level if some 

portion of the release is attributable to the site. Even though levels may be lower than regulatory limits, 

an observed release has nevertheless occurred if the measured levels are significantly higher than 

background levels.
Newtown Creek NPL Listing Support Document September 2010

26

Of course, the observed release factor alone is not intended to reflect the relative hazard presented by the 

particular release. Instead, the relative hazard of the site is approximated by the total HRS score, which 

incorporates the observed release factors with other factors such as waste characteristics (including waste 

quantity, toxicity, and persistence) and targets. This total HRS score reflects the hazard of the site relative 

only to the other sites that have been scored. The actual degree of contamination and its effects are more 

fully determined during the Remedial Investigation.

3.11 Challenge to HRS 

Comment: HydroQual and ENVIRON submitted several comments applicable to the listing of all sites in 

general as well as specifically to the listing of the Newtown Creek site. These comments include:

• Change the Significant Difference Criteria for Establishing on Observed Release:

HydroQual stated that “it seems arbitrary that sample measurements higher than the SQL or three 

times background concentration levels should define an observed contaminant release. The factor 

of three and the SQL have no relationship to an environmental or human health impact.” 

Similarly, ENVIRON commented that the SQL is an analytical objective and provides no 

information concerning risk. It added that “since analytical techniques are constantly being 

improved, the SQL will be subject to change over time. Therefore, the SQL should not be a basis 

for listing a site to the NPL.” 

• Change the HRS to a Site-Specific Risk-based Approach: ENVIRON stated that the overall 

HRS site score of 50.00 is “not scientifically linked to risk and although the score may be refined 

at a later date, unnecessary inclusion of areas exhibiting de minimis risk at the outset casts a 

heavy burden of proof of innocence.” ENVIRON stated, “[t]his unnecessary burden of proof 

should be avoided by taking a science and risk-based approach to listing at the outset.” 

ENVIRON stated that “the proposed listing is based on a mechanical ranking system which does 

not distinguish between conditions causing unacceptable risk and those causing de minimis risk.” 

• Use Organic Carbon Normalized Analytical Data to Establish Observed Releases: Environ

stated that both NYSDEC and USEPA consider that the risk from non-polar organic chemicals is 

best evaluated by equilibrium partitioning (EqP) methods which evaluate the distribution of a 

chemical between organic compounds in sediments and the sediment pore water. It stated that a

more advanced method, the target-lipid model (TLM), evaluates the partitioning between OC and 

the lipid portion of an organism, and that in both methods, the resulting OC-normalized 

concentration is compared to an OC-normalized sediment toxicity benchmark. Environ stated, 

“[w]hen the PAH concentrations detected in samples from the lower portion of the Creek are OCnormalized, they fall below the NYSDEC sediment quality value and the USEPA no observed 

effect concentration (NOEC) for PAHs. When concentrations of PAHs are less than their 

screening values, risk is considered to be de minimis.”

• Identify Risk only at Sample locations, not between Sample locations: Environ stated that 

“[t]here is no significant risk from surface sediments as far upstream as location 35A. The same 

is true of subsurface sediments – the data do not indicate evidence of significant risk from 

location 03A (there is no data for location 01A) to location 13A. Locations 13A and 35A are 

farther upstream from the mouth of the Creek.”

• Use Benchmarks not included in the Present HRS: ENVIRON stated 
Newtown Creek NPL Listing Support Document September 2010

27

the lowest observed effect concentration (LOEC) is the appropriate screeninglevel benchmark. The NYSDEC (1999) LOEC for PAHs is the effects range 

median (ER-M) of 35.5 mg/kg derived from Long and Morgan (1990). There 

were no reported total PAH concentrations in sediments exceeding the ER-M

from the mouth of the Creek to surface sediment location 35A or subsurface 

sediment location 09A (see Table 1). Therefore, as determined by the NYSDEC 

methods, the data do not indicate unacceptable risk or Environmental Threat to 

populations or individual aquatic organisms in the lower portion of the Creek. . . . 

concentrations in the lower portion of the Creek (represented by sampling 

locations 01A, 03A and 09A) are below the NYSDEC unrestricted use soil 

cleanup objectives (6 NYCRR Subpart 375-6), which are based on direct 

exposure assumptions that likely overestimate the exposure to Creek sediments. 

• Use Alternative Methods to Quantify Levels of Risk Within The Surface Water Pathway 

Threats: ENVIRON asserted that two independent quantitative methods published by NYSDEC 

(2007) and USEPA (2003) support a determination that the concentrations detected in the lower 

portion of Newtown Creek represent a de minimis risk and environmental threat, and no human 

food chain threat is expected for concentrations detected in the lower portion of Newtown Creek. 

ENVIRON summarized that “[b]ased on the assessment of potential ecological risks associated 

with reported concentrations in sediment samples from the lower portion of Newtown Creek, it 

can be concluded that the contamination of Newtown Creek by historic PAH releases has not 

created conditions in this portion of the Creek that are hazardous to aquatic organisms.” 

• Consider Bioavailability in Determining Risk: GLA commented that the high organic carbon 

content and very low oxygen conditions in sediment significantly decrease bioavailability of 

contaminants to aquatic organisms, thereby lowering risk to this population. GLA asserted that 

this factor was not taken into account in EPA’s food chain analysis in the HRS documentation 

record. ELM stated that the physical and chemical processes in the Creek are essential to 

determining the bioavailability of associated contaminants to targets and thus, determining “the 

potential for risk (or lack thereof) to a potentially affected population, assuming there is a 

legitimate probability that that population has a risk of being exposed. It stated, “Given the 

processes expected to be present in the Creek, they should be considered by USEPA as part of the 

NPL listing process . . . .” 

• Consider State Soil Cleanup Levels based on Organic Content in Establishing Risk: 

HydroQual commented that “NYSDEC guidance for determining cleanup levels recommends 

adjusting site soil cleanup objectives based on soil organic carbon content.” HydroQual

stated that:

EPA has established draft sediment quality guidelines on a contaminant per mass 

organic carbon basis which could instead be used to assess the relevance to an 

ecological threat represented by contaminant concentrations at Newtown Creek. 

The draft sediment quality guidelines, unlike the higher and the SQL and three 

times background metrics used in HRS score, are tied to ecological effects. 

Unfortunately, the draft sediment quality guidelines are available for only a 

limited number of contaminants and are not mentioned in HRS scoring guidance. 

Response: The HRS and the process used in placing sites on the NPL was promulgated on December 14,

1990 (55 FR 51569), and comments directed at the HRS are not relevant to the proposal to place the 

Newtown Creek site on the NPL, nor do such comments affect the Newtown Creek site score. 
Newtown Creek NPL Listing Support Document September 2010

28

3.12 Public Health Assessment/Human Health Risk Assessment

Comment: The City requested that EPA provide assistance to the Agency for Toxic Substances and 

Disease Registry (ATSDR) “to conduct a rigorous and expedited Public Health Assessment and that EPA 

begin the baseline Human Health Risk Assessment of the proposed Superfund site.”

OSA requested that EPA conduct an analysis of the health impacts of creek contamination on local 

residents as well as the potential health impact of the remediation. 

Response: A public health assessment will be performed for Newtown Creek NPL because CERCLA 

mandates ATSDR prepare a public health assessment for each site on (or proposed for inclusion on) the 

National Priorities List (NPL). However, CERCLA does not require ATSDR to begin or issue a public 

health assessment before or during the listing process. The Human Health Risk Assessment is part of the 

RI/FS stage of the Superfund process and does not impact the listing process.

3.13 Contaminated Sediment Source

Comment: HydroQual questioned whether or not the sediment in the Creek was an eligible source. It

distinguished between what it considered original upland sources and contaminated sediments and 

asserted that the Creek should be considered the receptor for contaminants discharged from adjacent 

industrial properties rather than the original source of these contaminants. The City urged EPA to 

thoroughly investigate the origin of all sources, known and unknown, along the entire length of the Creek. 

HydroQual added that it is clear from the nature and location of contamination in the Creek that several 

upland sources are major contributors, but that these upland sources are not part and parcel of the 

Newtown Creek NPL designation. 

HydroQual asserted the HRS documentation record at proposal avoids recognition of numerous sources 

that can be identified with a high degree of certainty from spill reports, data and remedial investigations 

performed on Newtown Creek. HydroQual suggested that the CERCLA legislation provides for joint and 

several liability, and multiple sources are easily accommodated. 

HydroQual stated that it is not clear if the level of detail outlined in the HRS Guidance Manual for an 

Expanded Site Inspection (ESI) was undertaken prior to developing an HRS score for the Newtown Creek 

site. HydroQual stated that the distinction of whether the contamination in Newtown Creek sediments are 

from known/identified or unknown/unidentified sources is fundamentally important to the HRS scoring 

because the HRS Training Manual3

 3 HRS Training Manual available at: http://www.epa.gov/superfund/training/hrstrain/htmain/4source.htm

indicates that areas of contaminated surface water sediments arising 

from discharges from known sources are not sources for purposes of HRS scoring. 

HydroQual then noted that EPA characterizes Newtown Creek sediments as a source based on the 

provision from HRS Section 1.1 that, in the case of “either a ground water plume with no identified 

source or contaminated surface water sediments with no identified source, the plume or contaminated 

sediments may be considered a source.” HydroQual then stated “[h]owever, this is not the case for 

Newtown Creek where numerous sources have been identified.” 

Texaco asserted that sampled effluent from CSOs shows that they contribute hazardous substances to the 

Creek. HydroQual asserted that CSOs are not sources, yet are conveyors of hazardous substances and 

that the amount discharge from CSOs is overstated in the HRS documentation record.

Response: The source was identified as a contaminated sediment source according to HRS criteria. HRS 

Section 1.1, Definitions, defines “Source” as:
Newtown Creek NPL Listing Support Document September 2010

29

Any area where a hazardous substance has been deposited, stored, disposed or placed, 

plus those soils that have become contaminated by migration of a hazardous substance. 

Sources do not include those volumes of air, ground water, surface water, or surface 

water sediments that have become contaminated by migration, except: in the case of 

either a ground water plume with no identified source or contaminated surface water 

sediments with no identified source, the plume or contaminated sediments may be 

considered a source.

Hence, the HRS presents two requirements for sediment to be considered a source in the HRS evaluation. 

First, the sediment must contain hazardous substances, and second, the exact source or sources of the 

hazardous substances in any particular location of the Creek could not be identified. 

The HRS documentation record at proposal demonstrates that the two HRS requirements for identifying a 

contaminated sediment source have been met. Page 18 of the HRS documentation record at proposal 

details the characteristics of the source (Source 1):

Source 1 consists of contaminated sediments in Newtown Creek. There are several 

hazardous substances affecting the creek sediments, including metals, VOCs, SVOCs, 

and PCBs [see Section 2.4.1]. The origin of these hazardous substances in the 

contaminated sediments has not been identified due to the presence of multiple possible 

sources for each substance. As a result, the source(s) of all the contamination in any 

particular location in the creek cannot be determined. The upland areas adjacent to this 

source have been heavily industrialized since the 1850s. Historical or current industrial 

activities along and within the creek have included oil refining, storage, and distribution; 

copper smelting; waste oil, scrap metal, soil, and concrete recycling; petrochemical, 

chemical, paint, fertilizer, glue, and dry ice manufacture; energy production at MGPs and 

natural gas facilities; shipbuilding and aluminum manufacture for airplanes; cement and 

lumber production and storage; coal yards; fat rendering, hide tanning, sugar refining, 

and canning; and transport of fuel, raw materials, and products [Ref. 7, pp. 1, 3, 7, 13; 8, 

p. 10; 9, pp. 4-6; 11, pp. 12-16; 13, pp. 1-5; 14, pp. 7-8; 16, p. 3; 17, p. 5; 18, pp. 6, 11-

12]. In addition, discharge of raw sewage directly into the water occurred from 1865 to 

1967. Although there have been upgrades to the Newtown Creek WPCP, the creek is still 

the receiving water body for industrial discharges, CSO discharges, and storm water from 

the surrounding neighborhoods [Ref. 6, p. 1; 8, p. 10; 9, pp. 5, 8; 11, pp. 11, 20-22, 103; 

12, pp. 21-22, 96-102; 20, pp. 2-3].

Historical sampling activities have shown the existence of hazardous substances within the Creek 

sediments. Page 18 of the HRS documentation record at proposal states:

Numerous past investigations with varying scopes have been conducted within and 

around Newtown Creek, with most of the focus on specific properties or specific 

segments of the creek [Ref. 8, pp. 15-21; 11, pp. 7, 97, 104-113; 14, pp. 5-18, 38-40; 16, 

pp. 2-4; 17, pp. 4, 33-34; 18, pp. 13-14, 51; 19, pp. 1-3]. Some of these studies have 

shown the presence of various contaminants at elevated levels in the creek sediments. 

Historical NYCDEP sediment sampling data indicate high concentrations of metals, 

VOCs, SVOCs, and PCBs [Ref. 11, pp. 27-28, 180-183]. Sediment sampling by PDRC 

from March 2004 to August 2005 showed percent levels (i.e., greater than 10,000 mg/kg) 

of copper and zinc, and PCBs up to 106,000 μg/kg [Ref. 11, pp. 29-43, 105-113, 1005-

1032, 1055-1097]. Other metals, pesticides, and PAHs were also detected above 

NYSDEC screening criteria [Ref. 11, pp. 60-65, 1005-1032, 1055-1097]. The pattern of 
Newtown Creek NPL Listing Support Document September 2010

30

contamination indicates that contaminants and pollutants from various sources are 

intermingled within the Newtown Creek sediments [Ref. 11, pp. 60-65, 138-152].

From February to April 2009, EPA collected sediment samples from Newtown Creek and 

project-specific background samples from the nearby Atlantic Basin. Surface samples 

(designated with an “A”) were collected from the 0- to 2-foot depth interval with a 

modified Van Veen dredge, and subsurface samples (designated with a “B”) were 

collected at depths ranging from 2 to 6 feet with a vibracore coring device [Ref. 23, pp. 7-

70; 25, pp. 4, 6-16, 20-23]. The samples were analyzed for Target Compound List (TCL) 

VOCs, SVOCs, and PCBs; Target Analyte List (TAL) metals; total organic carbon 

(TOC); and grain-size distribution [Ref. 25, pp. 1-5]. The analytical results indicate that 

metals, VOCs, SVOCs including PAHs, and PCBs are present in the Newtown Creek 

sediments at concentrations that meet the criteria for observed release [see Section 2.4.1]. 

These contaminants may have entered Newtown Creek via several transport pathways or 

mechanisms, including spillage, direct disposal or discharge, contaminated ground water 

discharge, or storm water runoff [Ref. 9, pp. 4, 6; 11, pp. 20-24; 12, pp. 21-22]. The 

variety and distribution of contaminants suggest that the sediment contamination 

originated at a variety of sources [Tables 1 and 2, Figures 2 and 3; Ref. 26 through 46 –

see Section 2.4.1].

Other portions of the HRS documentation record explain that the contamination in the sediments cannot 

be attributed to any individual source. Page 38 of the HRS documentation record at proposal specifies the 

complexities in identifying a specific contributor of contamination to the Creek as follows:

Sediments in Newtown Creek are contaminated with metals, VOCs, SVOCs including 

PAHs, and PCBs for a length of more than 3 miles [see Section 2.2]. The origin of these 

hazardous substances in the contaminated sediments has not been identified due to the 

presence of multiple possible sources for each substance. There are numerous routes that 

contamination can be taking to reach the water body and underlying sediments, including 

spillage during product shipping and handling, direct disposal and discharge, storm water 

runoff, and air deposition. As a result, the source(s) of all the contamination in any 

particular location in the creek cannot be determined.

Page 39 of the HRS documentation record at proposal continues:

The contaminants detected in the creek sediments can come from a wide variety of 

industrial and other anthropogenic activities [Ref. 9, pp. 3-6; 11, pp. 12, 20-24; 12, pp. 

21-22; 13, pp. 3-6]. For instance, more than 30 different types of source contributing 

PAHs to the New York/New Jersey Harbor watershed have been identified [Ref. 55, p. 

50]. Possible PAH sources include transportation-related activities such as petroleum 

spills, vehicle exhaust, and tire wear; creosote-treated marine pilings, utility poles, and 

railroad ties; and contaminated properties including MGPs [Ref. 55, pp. 21, 50, 85-86].

Likewise, cadmium could be attributed to the widespread use and disposal of nickelcadmium (Ni-Cd) batteries, application of fertilizers and biosolids with subsequent 

runoff, or contaminated properties [Ref. 56, pp. 12-15]. CSOs and storm water runoff are 

major contributors of PCBs to the Harbor, with a variety of contaminated properties or 

facilities as the likely contributors to those wastestreams [Ref. 57, p. 18]. Metals 

(including copper), PCBs, SVOCs, and VOCs have all been detected at concentrations 

exceeding surface water quality criteria in CSO and storm water discharges to Newtown 

Creek [Ref. 11, pp. 23-24]. EPA identified hundreds of potential contamination sources 

of hazardous substances in the Newtown Creek watershed [Ref. 58, pp. 3-4, 6-68, 72]. In 
Newtown Creek NPL Listing Support Document September 2010

31

addition, the sediments in Newtown Creek are constantly being disturbed and transported 

by tidal influx, storm water and CSO flow surges, and dredging for navigational purposes 

[Ref. 8, p. 10; 9, p. 4; 11, pp. 11, 21-22; 12, p. 22]. 

Furthermore, pages 39 through 42 of the HRS documentation record at proposal highlight specific 

facilities identified as possible contributors of hazardous substances to the Newtown Creek sediments. 

These include the Phelps Dodge site (aka the Laurel Hill site), the BCF Oil property, Quanta Resources 

property, National Grid (formerly KeySpan and Brooklyn Union Gas), and the Greenpoint Petroleum 

Remediation Project. The HRS documentation record at proposal states that, “[w]hile these facilities or 

properties are thought to be contributing to the contamination in the Creek, they are not thought to be the 

only sources of contamination.”

A large number of possible sources have contributed to the contamination of the Creek sediments. Some 

have been positively identified as having contributed to the contamination in general; many others have 

not been conclusively linked to the contamination due to the long-term industrial use of the Creek. 

Portions of the hazardous substances in the Creek, such as PAHs, are known to have been associated with 

former MGPs; however, other sources such as historical petroleum spills could have contributed these 

substances. Likewise, PCBs are known to have been contributed by discharge events from CSOs, yet 

other known contributors have been identified, such as the BCP Oil property. Explicitly attributing 

contamination in any portion of the Creek to a specific upland facility or operation is not feasible at this 

site, and no individual contributor can be singled out as having caused the significant increase of 

contamination in the Creek. Thus, the contaminated sediment source identified at the Newtown Creek 

site is appropriately identified according to the HRS definition of “source,” as the Creek is composed of 

contaminated surface water sediments with no identified source.

Regarding the upland source contributors to the contamination, the identification of these areas would 

affect the extent of site, which EPA explained is not fully delineated at proposal. For more information 

see section 3.4, Extent of Site, of this support document and 74 FR 45811, September 23, 2009.

Regarding the commenter’s assertion that the level of detail described in the draft HRS Guidance Manual, 

Interim Final, as associated with an ESI was not attained in determining the sources of contamination to 

the Creek, sufficient data from extensive investigations was already established at the time of listing 

which equaled or exceeded the level of effort associated with an ESI. The objective of such an ESI would 

be to collect samples to attribute hazardous substances to site operations and to fully characterize the site 

sources. As shown above, significant investigations have been completed, and multiple former and 

current operators along the Creek have been identified to have contributed contamination to the site. 

Thus, further investigations beyond what had been completed at the time of proposal are not warranted 

because additional data gathered would not clearly identify the original sources of contamination, nor aid 

in the identification of original sources of contamination to the Creek.

This comment has no effect on the HRS site score or the decision to place this site on the NPL.

3.14 Eligibility of Hazardous Waste

Comment: HydroQual alleged that the EPA HRS score calculations include a hazardous waste quantity 

factor which is based on the presumption that all Newtown Creek sediments meet the definition of 

hazardous waste. While HydroQual conceded that the sediments do contain hazardous substances, it 

asserted that the sediments are not, in fact, hazardous waste. HydroQual asserted that the results of 

NYCDEP Toxicity Characteristic Leaching Procedure (TCLP) testing on samples of Newtown Creek 

sediments from 8 locations revealed that the levels were below the concentrations for exhibiting the 

characteristic of toxicity, indicating that the sediments were not classified as hazardous on this basis. 
Newtown Creek NPL Listing Support Document September 2010

32

Because of these results, HydroQual maintains that EPA's use of the volume measure overstates the 

hazardous waste quantity and ultimately the HRS score, because it is based upon theoretical calculations 

of hazardous waste, which are refuted by hazardous waste testing 

GLA asserted that the mouth of the Creek did not demonstrate the presence of hazardous waste, which 

would require disposal as such. 

Response: A material need not be a “hazardous waste” under Resource Conservation and Recovery Act 

(RCRA) to be addressed under CERCLA and a waste need only contain hazardous substances, or in some 

circumstances “pollutants or contaminants”. Hazardous substances are defined for HRS purposes as 

“CERCLA hazardous substances, pollutants, and contaminants as defined in CERCLA Sections 101(14) 

and 101(33), except where otherwise specifically noted in the HRS” (55 FR 51586, December 14, 1990). 

Additionally:

CERCLA Section 101(14) defines “hazardous substance” in the context of other 

Federal legislation, including substances listed pursuant to Sections 307(a) and 

311(b)(2)(A) of the Federal Water Pollution Control Act, Section 3001 of the Solid 

Waste Disposal Act (known as RCRA), Section 112 of the Clean Air Act, and 

substances that are the subject of an action under Section 7 of the Toxic Substances 

Control Act. Thus hazardous wastes as defined under RCRA are only a subset of the

broader list of CERCLA hazardous substances.

CERCLA Section 102(a) empowers the Administrator to promulgate regulations 

designating other substances as hazardous if when released into the environment they 

may present substantial danger to the public health or welfare or the environment.

CERCLA Section 101(33) defines “pollutant or contaminant” as including but not limited to “any 

element, substance, compound, or mixture, including disease-causing agents, which after release into the 

environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly 

from the environment or indirectly by ingestion through food chains, will or may reasonably be 

anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological 

malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or 

their offspring.” Substances meeting that definition may also be addressed under CERCLA. 

Section 3.15.3, Hazardous Waste/Hazardous Substances, of this support document addresses the 

comments regarding the use of “hazardous waste” in the hazardous waste quantity evaluation. 

This comment has no effect on the HRS score or the decision to place this site on the NPL.

3.15 Hazardous Waste Quantity

Comment: HydroQual alleged that the evaluation of the hazardous waste quantity factor presented in the 

HRS documentation record at proposal is flawed for various reasons. The following subsections address 

specific assertions regarding the evaluation of hazardous waste quantity:

• 3.15.1 Unallocated Source

• 3.15.2 Source Type

• 3.15.3 Hazardous Waste/Hazardous Substances

Response: A hazardous waste quantity factor value based on Tier C volume was correctly determined 

according to the HRS for the Newtown Creek site.
Newtown Creek NPL Listing Support Document September 2010

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HRS Section 2.4.2, Hazardous waste quantity, states:

Evaluate the hazardous waste quantity factor by first assigning each source (or area of 

observed contamination) a source hazardous waste quantity value as specified below. 

Sum these values to obtain the hazardous waste quantity factor value for the pathway 

being evaluated.

In evaluating the hazardous waste quantity factor for the three migration pathways, 

allocate hazardous substances and hazardous wastestreams to specific sources in the 

manner specified in section 2.2.2, except: consider hazardous substances and hazardous 

wastestreams that cannot be allocated to any specific source to constitute a separate 

“unallocated source” for purposes of evaluating only this factor for the three migration 

pathways. Do not, however, include a hazardous substance or hazardous wastestream in 

the unallocated source for a migration pathway if there is definitive information 

indicating that the substance or wastestream could only have been placed in sources with 

a containment factor value of 0 for that migration pathway.

HRS Section 2.4.2.1, Source hazardous waste quantity, states:

For each of the three migration pathways, assign a source hazardous waste quantity value 

to each source (including the unallocated source) having a containment factor value 

greater than 0 for the pathway being evaluated. Consider the unallocated source to have a 

containment factor value greater than 0 for each migration pathway.

. . . .

For all pathways, evaluate source hazardous waste quantity using the following four 

measures in the following hierarchy:

• Hazardous constituent quantity [Tier A]

• Hazardous wastestream quantity [Tier B]

• Volume [Tier C]

• Area [Tier D]

For the hazardous constituent quantity, the total mass of CERCLA hazardous substances allocated to the 

source has not been documented, thus the use of Tier A was not applicable in determining hazardous 

waste quantity. Refer to section 3.15.3, Hazardous Waste/Hazardous Substances, of this support 

document for further discussion on how hazardous waste is considered under the HRS in determining 

hazardous waste quantity.

Considering the history of industry along the Creek and the multiple contributors to the contamination 

discussed in section 3.13, Contaminated Sediment Source, of this support document, the mass of 

hazardous wastestreams that ever entered the Creek could not be documented, thus the use of Tier B was 

not applicable in assigning a source hazardous waste quantity. 

HRS Section 2.4.2.1.3, Volume, states:

Evaluate the volume measure using the volume of the source (or the volume of the area 

of observed contamination). . . .
Newtown Creek NPL Listing Support Document September 2010

34

Based on the volume, designated as V, assign a value to the volume measure as follows:

• For the migration pathways, assign the source a value for volume using the 

appropriate Tier C equation of Table 2-5.

Hazardous substances were documented as associated with the contaminated sediment source, as 

described in section 3.13, Contaminated Sediment Source, of this support document. Page 35 of the HRS 

documentation record at proposal describes the method used in estimating the volume of the source 

hazardous waste quantity:

Analytical results for the February-April 2009 sampling event, as well as previous 

sampling events, show that contaminated sediments are located throughout Newtown 

Creek [see Sections 2.2.1 and 2.4.1]. The creek and its branches have a total surface area 

of approximately 165 to 170 acres [Ref. 12, p. 53; 13, p. 2]. For the purpose of this 

calculation, EPA uses the more conservative value of 165 acres (i.e., approximately 

7,187,400 square feet). The top depth of contaminated subsurface samples ranged from 2 

to 4 feet, with a majority of the samples having a top depth of 4 feet [see Table 2]. Based 

on the top-depth values, the column of contaminated sediments averages approximately 

3.7 feet. The volume of contaminated sediments in Newtown Creek is calculated as 

follows:

Volume (yd3

) = (7,187,400 ft2 × 3.7 ft) ÷ (27 ft3/ yd3) = 984,940 yd3

This is considered to be a conservative (i.e., low) estimate since EPA did not delineate 

the full vertical extent of contamination. The source type is ‘Other’, so the volume value 

is divided by 2.5 to obtain the assigned value, as shown below [Ref. 1, p. 51591, Section 

2.4.2.1.3, Table 2-5].

Therefore, the calculated volume of contaminated sediments established above, was divided by 2.5 to 

obtain a volume assigned value of 393,976. The divisor of 2.5 was selected as per Table 2-5 of the HRS, 

considering the source type as ‘Other’.

As directed by the HRS, if the volume measure can be determined, the area measure is not completed. 

Thus, the area measure, or Tier D, was not calculated in the evaluation of source hazardous waste 

quantity.

3.15.1 Unallocated Source

Comment: HydroQual stated that EPA improperly characterized the Newtown Creek sediments as an 

unallocated source. HydroQual describes that unallocated sources are defined by USEPA in the HRS 

Final Rule on page 51590. It cites:

In evaluating the hazardous waste quantity factor...consider hazardous substances and 

hazardous waste streams that cannot be allocated to any specific source to constitute a 

separate “unallocated source” for the purposes of evaluating only this factor for the three 

migration pathways.

Response: The contaminated sediments in Newtown Creek were correctly characterized as a 

contaminated sediment source, and not as an unallocated source. As explained in section 3.15, 
Newtown Creek NPL Listing Support Document September 2010

35

Contaminated Sediment Source, of this support document, the source was established according to the 

HRS definition of “source.” 

HRS Section 2.4.2, Hazardous waste quantity, uses the phrase “unallocated source.” It states in relevant 

part:

In evaluating the hazardous waste quantity factor for the three migration pathways, 

allocate hazardous substances and hazardous wastestreams to specific sources in the 

manner specified in section 2.2.2, except: consider hazardous substances and hazardous 

wastestreams that cannot be allocated to any specific source to constitute a separate 

“unallocated source” for purposes of evaluating only this factor for the three migration 

pathways. Do not, however, include a hazardous substance or hazardous 

wastestream in the unallocated source for a migration pathway if there is definitive 

information indicating that the substance or wastestream could only have been 

placed in sources with a containment factor value of 0 for that migration pathway. 

[emphasis added]

HRS Section 2.2.2, Identify hazardous substances associated with a source, identified in the City’s quote 

from HRS Section 2.4.2 (above) does not use the phrase “unallocated source.” This section states: 

In some instances, a hazardous substance can be documented as being present at a site 

(for example, by labels, manifests, oral or written statements), but the specific source(s) 

containing that hazardous substance cannot be documented. For the three migration 

pathways, in those instances when the specific source(s) cannot be documented for a 

hazardous substance, consider the hazardous substance to be present in each source 

at the site, except sources for which definitive information indicates that the hazardous 

substance was not or could not be present. [emphasis added]

Thus, an unallocated source is identified when specific hazardous substances and wastestreams cannot be 

allocated to an existing source at a site. In the case of the Newtown Creek site, however, as discussed in 

section 3.13, Contaminated Sediment Plume Source, of this support document, the hazardous substances 

in the Creek can be allocated to the contaminated sediments source, an existing source, and it would be 

incorrect to allocate them to an unallocated source at this site. 

This comment has no effect on the HRS score or the decision to place this site on the NPL.

3.15.2 Source Type

Comment: HydroQual asserted that the source type “other” assigned for Source 1 is not accurate, and that 

this error has inflated the hazardous waste quantity. HydroQual claimed that:

[t]he EPA calculation for hazardous waste quantity factor involves the use of a divisor of 2.5. 

EPA’s use of the 2.5 divisor suggests Newtown Creek sediments are a source of category 

“Other”. Alternatively, the divisor for the “Soil” source category is 2500. EPA’s choice of 

“Other” for Newtown Creek sediments rather than “Soil” increases the estimated amount of 

hazardous substances one thousand times. In reality, Newtown Creek sediments probably fall 

somewhere between the “Other” and “Soil” source categories. 
Newtown Creek NPL Listing Support Document September 2010

36

HydroQual pointed out that the HRS provides a hierarchy of four measures to evaluate source hazardous 

waste quantity (hazardous constituent quantity, hazardous wastestream quantity, volume, and area, in that 

order), and requires that only the first two measures be used for unallocated sources. 

Response: The source was correctly evaluated according to the HRS as a contaminated sediment source, 

and the source type ‘other’ was correctly applied to the contaminated sediment source. Therefore the 

correct hazardous waste quantity equation and divisor of 2.5 was used to generate a waste quantity 

estimate for the source.

HRS Section 1.1, Definitions, defines a source as:

[a]ny area where a hazardous substance has been deposited, stored, disposed, or placed, plus 

those soils that have become contaminated from migration of a hazardous substance. Sources do 

not include those volumes of air, ground water, surface water, or surface water sediments that 

have become contaminated by migration, except: in the case of either a ground water plume with 

no identified source or contaminated surface water sediments with no identified source, the 

plume or contaminated sediments may be considered a source. [emphasis added]

This HRS definition clearly distinguishes between soil and sediment by separately mentioning soils (in 

the phrase “soils that have become contaminated . . .”) and “surface water sediment” (in “surface water 

sediments that have become contaminated . . .”)

The contaminated samples used to characterize Source 1 were clearly from sediments below the Newtown 

Creek water, and per the HRS definition of source, are surface water sediments, not soil. Thus, sediments 

cannot reasonably be interpreted as contaminated soil when choosing a hazardous waste quantity 

evaluation equation from HRS Table 2-5. The only type of source listed in Table 2-5 that is applicable to 

this source is source type ‘Other’. As the other types of sources listed in Table 2-5 do not apply to the 

source (such as ‘Landfill,’ ‘Surface impoundment,’ ‘Drums,’ ‘Tanks and containers other than drums,’ 

‘Contaminated soil,’ or ‘Pile’), only the source type ‘Other’ is applicable in the evaluation of the source 

hazardous waste quantity at this site. 

This comment has no effect on the HRS site score or on the decision to place the site on the NPL.

3.15.3 Hazardous Waste/Hazardous Substances

Comment: While HydroQual conceded that the sediments do contain hazardous substances, it asserted 

that the sediments are not a hazardous waste, and therefore EPA's use of the volume measure in the 

hazardous waste quantity evaluation overstates the hazardous waste quantity and ultimately the HRS 

score. 

Response: The consideration of the sediments as a RCRA hazardous waste was not incorporated into the 

hazardous waste quantity factor value calculated for the source, as hazardous constituent quantity was not 

determined. The HRS accounts for RCRA hazardous waste only in determining the Tier A quantity 

estimate.

HRS Section 2.4.2.1.1, Hazardous constituent quantity, Tier A, addresses the consideration of RCRA

hazardous waste in an HRS waste quantity calculation. It states:

Evaluate hazardous constituent quantity for the source (or area of observed 

contamination) based solely on the mass of CERCLA hazardous substances (as defined in 
Newtown Creek NPL Listing Support Document September 2010

37

CERCLA section 101(14), as amended) allocated to the source (or area of observed 

contamination), except:

• For a hazardous waste listed pursuant to section 3001 of the Solid Waste 

Disposal Act, as amended by the Resource Conservation and Recovery Act of 

1076 (RCRA), 42 U.S.C. 6901 et seq., determine its mass for the evaluation of 

this measure as follows:

o If the hazardous waste is listed solely for Hazard Code T (toxic waste), 

include only the mass of constituents in the hazardous waste that are 

CERCLA hazardous substances and not the mass of the entire hazardous 

waste.

o If the hazardous waste is listed for any other Hazard Code (including T 

plus any other Hazard Code), include the mass of the entire hazardous 

waste.

• For a RCRA hazardous waste that exhibits the characteristics identified under 

section 3001 of RCRA, as amended, determine its mass for the evaluation of this 

measure as follows:

o If the hazardous waste exhibits only the characteristic of toxicity (or only 

the characteristic of EP toxicity), include only the mass of constituents in 

the hazardous waste that are CERCLA hazardous substances and not the 

mass of the entire hazardous waste.

o If the hazardous waste exhibits any other characteristic identified under 

section 3002 (including any other characteristic plus the characteristic of 

toxicity [or the characteristic of EP toxicity]), include the mass of the 

entire hazardous waste.

Also, HRS Section 2.4.2.1.2, Hazardous wastestream quantity, states:

Evaluate hazardous wastestream quantity for the source (or area of observed 

contamination) based on the mass of hazardous wastestreams plus the mass of any 

additional CERCLA pollutants and contaminants (as defined in CERCLA section 

101(33), as amended) that are allocated to the source (or area of observed contamination). 

For a wastestream that consists solely of a hazardous waste listed pursuant to section 

3001 of RCRA, as amended or that consists solely of a RCRA hazardous waste that 

exhibits the characteristics identified under section 3001 of RCRA, as amended, include 

the mass of that entire hazardous waste in the evaluation of this measure.

As data for evaluating hazardous constituent quantity (Tier A) was not adequately determined, these 

measures were not calculated; the Tier C volume measure was calculated. Thus, the use of RCRA 

hazardous waste designation in the hazardous waste quantity estimate was not incorporated into the waste 

quantity calculation.

This comment has no effect on the HRS site score or the decision to place the site on the NPL.
Newtown Creek NPL Listing Support Document September 2010

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3.16 Likelihood of Release

Comment: Several commenters, including HydroQual, GLA, ENVIRON, and ELM, challenged the 

identification of observed releases of contaminants to Newtown Creek. Although the City stated that it 

agreed that there was an observed release and that a likelihood of release factor category value of 550 was 

appropriately assigned, it did have several objections to the evidence supporting this value. 

Specific comments regarding the likelihood of release component of the HRS score are addressed in the 

following subsections.

• 3.16.1 Sediment Bed Eligibility

• 3.16.2 Use of Background Samples in Establishing an Observed Release

• 3.16.3 Use of Qualified Data

• 3.16.4 Results Below CRQLs

• 3.16.5 Sample Similarity

• 3.16.6 Clarity of HRS Observed Release Tables

• 3.16.7 Attribution

• 3.16.8 Contamination in Mouth of Creek

Response: The likelihood of release value for the Newtown Creek site was appropriately assigned

according to the HRS, as multiple observed releases by chemical analysis were documented. While the 

specific comments raised are addressed in subsections below, to provide background information before 

responding specifically to these comments the following discussion establishes the HRS requirements for 

doing so and what information was presented in the HRS documentation record at proposal to document 

the likelihood of release evaluation. 

HRS Section 2.3, Likelihood of release, states:

Likelihood of release is a measure of the likelihood that a waste has been or will be 

released to the environment. The likelihood of release factor category is assigned the 

maximum value of 550 for a migration pathway whenever the criteria for an observed 

release are met for that pathway. . . . Establish an observed release either by direct 

observation of the release of a hazardous substance into the media being evaluated (for 

example, surface water) or by chemical analysis of samples appropriate to the pathway 

being evaluated (see sections 3, 4, and 6). The minimum standard to establish an 

observed release by chemical analysis is analytical evidence of a hazardous substance in 

the media significantly above the background level. Further, some portion of the release 

must be attributable to the site. Use the criteria in Table 2-3 as the standard for 

determining analytical significance.

Hence, Table 2-3 states that an observed release is established under the following circumstances:

• If the background concentration is not detected (or is less than the detection limit), an 

observed release is established when the sample measurement equals or exceeds the 

sample quantitation limit.

• If the background concentration equals or exceeds the detection limit, an observed 

release is established when the sample measurement is 3 times or more above the 

background concentration.
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Further, HRS Section 4.1.2.1.1, Observed release, contains the directions used to establish an observed 

release to the surface water migration pathway. It states in part:

Establish an observed release to surface water for a watershed by demonstrating that the 

site has released a hazardous substance to the surface water in the watershed. . . .

• Chemical analysis:

o Analysis of surface water, benthic, or sediment samples indicates that the 

concentration of hazardous substance(s) has increased significantly 

above the background concentration for the site for that type of sample 

(see section 2.3).

-Limit comparisons to similar types of samples and background 

concentrations – for example, compare surface water samples to 

surface water background concentrations.

-For benthic samples, limit comparisons to essentially sessile 

organisms.

o Some portion of the significant increase must be attributable to the site to 

establish the observed release, except: when the site itself consists of 

contaminated sediments with no identified source, no separate

attribution is required. [emphasis added]

If an observed release can be established for a watershed, assign an observed release 

factor value of 550 to that watershed, enter this value in Table 4-1, and proceed to section 

4.1.2.1.3.

Page 38 of the HRS documentation record at proposal, under the heading “Chemical Analysis,” states that 

“[a]n observed release by chemical analysis is documented in Newtown Creek between sample location 

NC-SD71A in English Kills and sample location NC-SD01B, approximately 3 miles downstream.” 

Tables 3 and 4 of the HRS documentation record at proposal display the background and observed release 

concentrations of hazardous substances found in the Newtown Creek sediments. These tables show that 

samples throughout the Creek sediments meet the criteria of an observed release, as hazardous substances 

have been detected significantly above background concentrations.

As cited in section 3.13, Contaminated Sediment Source, of this support document, the HRS 

documentation record at proposal discusses that the source consists of contaminated sediments with no 

identified source. Thus, the site itself consists of contaminated sediments, and attributing some portion of 

the significant increase of hazardous substances to the site is not required by the HRS. 

An observed release by chemical analysis has been documented according to the HRS, and the likelihood 

of release factor category value of 550 was assigned for the site.

3.16.1 Sediment Bed Eligibility

Comment: HydroQual asserted that considering the sediment bed as a release is in contradiction with the 

stagnant nature of the Creek, and that contaminants have a low probability of movement. 
Newtown Creek NPL Listing Support Document September 2010

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Response: The Newtown Creek sediment bed was correctly considered a release according to the HRS. 

A “release,” under CERCLA section 101(22) is defined as “[a]ny spilling, leaking, pumping, pouring, 

emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the 

environment... ” 

The HRS defines “site” as:

Area(s) where a hazardous substance has been deposited, stored, disposed, or placed, or 

has otherwise come to be located. . .”

As explained in section 3.13, Contaminated Sediment Source, of this support document, hazardous 

substances were associated with the contaminated sediments through sampling and the release could not 

be attributed to a known source. The documentation of an observed release by chemical analysis, as 

established in section 3.16, Likelihood of Release, of this support document, establishes that hazardous 

substances have come to be located in the sediments and therefore constituted a release. In addition, the 

sediment bed is a site because it is the area of a release.

That Newtown Creek might be stagnant does not contradict the finding that a release has occurred to the 

environment. Whether or not the Creek is stagnant is not a consideration in the definition of a release or 

the evaluation of a site in accordance with the HRS. Furthermore, if the commenter is claiming that the 

“stagnant” nature of the Creek means contaminants in the sediments cannot further migrate, this is not 

correct. For example, the Creek is not stagnant, as illustrated by its tidal nature.

Also, for HRS purposes, the hazardous substances within the sediment bed are not considered to be 

contained. As directed by HRS Section 4.1.2.1.2.1.1, Containment, and as documented on page 19 of the 

HRS documentation record at proposal, the contaminated sediments are not contained, as hazardous 

substances have been documented in the Creek, and neither a maintained engineering cover, nor a 

functioning maintained runoff control system was documented.

This comment has no effect on the HRS site score or the decision to place the site on the NPL. 

3.16.2 Use of Background Samples in Establishing an Observed Release

Comment: HydroQual, GLA, ENVIRON, and other commenters expressed doubt that downstream 

background samples can serve as adequate evidence that a release occurred and that the release is 

attributable to the Newtown Creek site. 

HydroQual and GLA questioned the criteria used to evaluate an observed release at the site. HydroQual 

stated that “[t]he concept of three times background concentration makes more sense for comparing an 

immediately upstream location to a contiguous site in that it implies a constituent was necessarily 

introduced in the immediate vicinity to produce a factor of three concentration increase.” HydroQual 

alleged that because the Atlantic Basin is disconnected from Newtown Creek, a factor of three or more 

difference in concentration does not prove a release directly to Newtown Creek, “just a release 

somewhere that didn’t reach the Atlantic Basin or was different than that reaching the Atlantic Basin.” 

HydroQual also stated that “[t]he attribution isn’t as apparent when the background site and scored site 

are disconnected.”
Newtown Creek NPL Listing Support Document September 2010

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Response: Background samples were appropriately compared to contaminated samples in establishing an 

observed release from the Newtown Creek site. In addition, attribution is not required when scoring a 

contaminated sediment source. 

The HRS does not identify requirements or define conditions for establishing background levels of 

contaminants. The HRS addresses background only in the context of identifying an observed release of a 

hazardous substance to the environment by chemical analysis. HRS Section 4.1.2.1.1, Observed release, 

states in relevant part: 

Establish an observed release to surface water for a watershed by demonstrating that the 

site has release a hazardous substance to the surface water in the watershed. Base this 

demonstration on either:

• Direct observation: . . .

• Chemical analysis: 

o Analysis of surface water, benthic, or sediment samples indicates that the 

concentration of hazardous substance(s) has increased significantly 

above the background concentration for the site for that type of sample 

(see section 2.3)

- Limit comparisons to similar types of samples and background 

concentrations—for example compare surface water samples to 

surface water background concentrations.

Pages 20 and 21 of the HRS documentation record at proposal explain the reasoning behind the selection 

of the background samples from which to determine a background level:

Since the contamination begins at the head of the creek, it was not possible to obtain 

upstream samples [from the Creek]. Therefore, samples collected from a nearby similar 

water body, Atlantic Basin, were used to establish background concentrations. Figure 3 

provides the map of the background sample locations in the Atlantic Basin.

Background levels are used in the identification of a significant increase in contaminant concentrations 

due to the release from the site and therefore should reflect the concentrations of the released substances 

in the absence of the release. Although background locations are ideally chosen upgradient of the 

observed release samples, this was not possible at the Newtown Creek site because the entire Creek is 

contaminated. The background samples selected downstream from the source in the Atlantic Basin 

provide adequate evidence that the contaminated sediments of the site exhibit a significant increase in 

hazardous substances in that they reflect as much as possible, given the unique situation at this site, what 

contamination levels would be at the site if it were not for the site-related release.

As explained above, the background sample locations are only used as a reference point in the HRS 

evaluation to establish that a significant increase in contaminant levels in the release samples has 

occurred. Background samples downstream of the Creek were used to establish background levels, but 

from areas with as similar as possible physical conditions and that would be impacted by sources not 

considered part of the site. The background samples were not used to establish attribution.

This comment has no effect on the HRS site score, or on the decision to place this site on the NPL.
Newtown Creek NPL Listing Support Document September 2010

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3.16.3 Use of Qualified Data

Comment: HydroQual questioned the use of analytical results flagged with the “J” analytical data 

qualifier in the evaluation of an observed release in Newtown Creek. HydroQual stated that:

much of the data, especially for cadmium and other metals, used to determine releases 

were laboratory estimates, i.e., ‘J-flagged’, rather than true laboratory measurements. 

While EPA followed accepted protocols for using ‘J-flagged’ data and attempted to 

compensate for uncertainty, the release determination is compromised because of the ‘Jflagged’ estimates. Given the importance associated with the HRS score and potential 

NPL listing, alternative calculations, omitting ‘J-flagged’ estimates, should also be 

considered by EPA before reaching a final listing conclusion.

Response: That some of the analytical data used in the determination of observed releases by chemical 

analysis at the Newtown Creek site were “J” qualified4

• If the background concentration is not detected (or is less than the detection limit), an 

observed release is established when the sample measurement equals or exceeds the 

sample quantitation limit.

was appropriately accounted for in the 

identification of the observed releases. This consideration involved identifying the reasons for the 

assignment of the “J” qualifier and determining if the accuracy of the analyses was sufficient to meet the 

requirements for identifying an observed release. To ensure this was the case, the data in question has 

been re-examined and the rationale for using this data in the HRS evaluation is presented below. 

HRS Requirements for Establishing an Observed Release

As applicable to this site, according to HRS Table 2-3, when the release sample concentration is above 

the sample quantitation limit (SQL), to establish an observed release by chemical analysis, the following 

criteria must be met:

• If the background concentration equals or exceeds the detection limit, an observed release 

is established when the sample measurement is 3 times or more above the background 

concentration.

The terms “sample quantitation limit” and “detection limit” are defined in HRS Section 1.1. The HRS 

defines the SQL as the

[q]uantity of a substance that can be reasonably quantified given the limits of detection 

for the methods of analysis and sample characteristics that may affect quantitation (for 

example, dilution, concentration).

The HRS defines the detection limit (DL) as the

[l]owest amount [of a substance] that can be distinguished from the normal random 

“noise” of an analytical instrument or method. For HRS purposes the detection limit 

used is the method detection limit (MDL) or for real time field instruments, the detection 

limit of the instrument as used in the field.

 4 A “J” qualifier applied to a sample result indicates that the analyte was positively identified and the associated 

numerical value is the approximate concentration of the analyte in the sample (due either to the quality of the data 

generated because certain quality control criteria were not met, or the concentration of the analyte was below the 

quantitation limit).
Newtown Creek NPL Listing Support Document September 2010

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The data quality objective for establishing an observed release therefore is that the concentration of a 

contaminant must be sufficiently accurate to ensure that one of the two above criteria is met depending on 

whether the background sample concentration is less than or greater than/equal to the detection limit.

 

Court Decisions Regarding Use of Qualified Data

The Courts have specifically ruled on the use of qualified data in the scoring of a site using the HRS. In 

the case of Board of Regents of the University of Washington v. EPA, U.S. Court of Appeals, District of 

Columbia, June 25, 1996, the Court, in response to the petitioner's challenge regarding the quality of the 

data being fed into the complex HRS model—specifically, the usability of “J” qualified data (and data 

with other documentation issues)—stated that “EPA does not face a standard of absolute perfection. . . . 

Rather, it is statutorily required to ‘assure to the maximum extent feasible,’ that it ‘accurately assesses the 

relative degree of risk,’” [emphasis in original] and that “[i]t would hardly make sense for the courts to 

respond to the resulting evidence by treating a lab’s findings as fatally defective whenever it comes up 

short in any way.” The Court also said that “[i]f there are ‘minor contractual deficiencies,’ the 

appropriate response is to review the deficiencies on a ‘case–by-case’ basis to determine their impact on 

the ‘usability of the data.’” 

Also in this decision, the Court repeated a statement in an earlier NPL HRS case (Eagle–Picher Indus., 

Inc. v. EPA, 759 F.2d. 905, 921, D.C. Cir. 1985) in explanation of when EPA has met its obligations as: 

“The EPA has thus ‘examined [the] relevant data and . . . articulated a rational explanation for its action.’” 

[clarification in original]

EPA is therefore not required to limit its use of data to absolutely perfect results; there is no reason to 

consider an alternative site score excluding qualified data as was suggested by HydroQual. As further 

detailed below, EPA has made reasonable efforts to address potential shortcomings in the accuracy for 

individual qualified results, ensuring that each observed release is established with confidence.

CLP Use of “J” Qualifier

The samples for the Newtown Creek site were analyzed under the EPA Superfund Contract Laboratory 

Program (CLP). This program was “developed for CERCLA waste site samples to fill the need for 

legally defensible analytical results supported by a high level of quality assurance and documentation” 

(HRS Section 1.1). A key part of the CLP program is to document the quality of the analytical results 

through the analysis of quality control samples commensurate with the analysis for field samples and by 

tracking the capabilities of the analytical procedures to provide accurate results when analyzing samples 

with variable physical properties. When a possible limitation is found in the analysis but the analysis is 

considered “in control,” a “J” qualifier is assigned to the analytical result. (If the limitation is sufficient to 

indicate the analysis was out of control and the results are unusable, an “R” qualifier is assigned.) The 

“J” qualifier reflects that the result is considered to be qualitatively accurate—the substance is present, but 

there is a possibility that the result may be an estimated quantity. 

Consideration of Possible Bias in Establishing an Observed Release

As identified by the commenter, EPA has an established protocol for demonstrating that in some cases “J” 

qualified data is of sufficient quality to use in establishing an observed release by chemical analysis in an 

HRS evaluation. This procedure considers why the “J” was assigned in terms of the direction of the 

possible bias. For example, if the result is possibly higher than the true value, the qualified result is 

considered “biased high”. Four directions of bias are evaluated: biased high, biased low, unknown bias, 

and no bias. Unknown bias is assigned when the quality control problem indicates a possible problem in 

the analysis but is not specific enough to indicate a direction. No bias is assigned when the qualifier is 

assigned to identify that some issue was noted but the quantitation of the concentration was not impacted 

by the issue. 
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By knowing whether there is a possible bias, the direction and estimated upper or lower bound of the 

possible bias, and whether a sample is being used to establish a background or release concentration, it 

can be shown whether the results meet the observed release criteria as identified in HRS Table 2.3 (and 

cited above). “J” qualified results can be used as is in the following situations:

• For a “J” qualified background sample: 

o If the background sample concentration is above the MDL and the result is biased high 

but the release sample is 3 times higher, the background sample result as is can be used 

because even if the true value were lower than the measured value, the “three times 

background concentration” criteria for an observed release would still be met.

o If the background sample concentration is not detected and the result is biased high but 

the release is higher than the SQL, the background sample result as is can be used 

because even if the true value were lower than the measured value, the “greater than the 

SQL” criteria for an observed release would still be met.

• For a “J” qualified release sample:

o If the release sample result is biased low but still meets the observed release criteria, the 

result may be used as is because even if the true value were higher than the measured 

value, the observed release criteria would still be met. 

In other situations, it is necessary to consider what the upper or lower bound of the true value could be if 

the measured value is possibly biased. This estimated bound is referred to as the “adjusted value.” The 

observed release criteria are met based on the adjusted value in the following situations:

• If a “J” qualified background sample result is equal to or above the MDL and the result is 

possibly biased low or the bias direction is unknown, an adjusted background sample 

concentration is generated by multiplying the background result by an adjustment factor designed 

to estimate the upper bound. If the release sample concentration remains at least three times 

higher than this estimated upper bound, then the observed release criteria are considered met.

• If a “J” qualified release sample result is possibly biased high or the bias is unknown, an adjusted 

release concentration is generated by dividing the release result by an adjustment factor designed 

to estimate the lower bound. If the estimated lower bound is greater than the SQL and still at 

least three times the background concentration (or greater than the SQL if the background 

concentration was not detected), then the observed release criteria are considered met. 

• If the background is possibly biased low and the release is possibly biased high or the direction of 

bias for both is unknown, an estimated upper bound background concentration and lower bound 

release concentration are generated; these adjusted values are compared to verify that the 

observed release criteria are met.

Effectively, a background concentration will only be adjusted upward and/or a release concentration 

adjusted downward to compensate for potential bias. Also, these estimated bounds are temporary 

estimates generated only for the purpose of ensuring that observed release criteria are still met when 

potential bias may affect results within the HRS documentation record; this adjustment is not a permanent 

alteration of the original results produced by the laboratory.

Consideration of “J” Qualified Data in Newtown Creek Results at Time of Proposal
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Tables 3 and 4 were presented in the HRS documentation record at proposal to document more than 100 

samples that met the observed release criteria. As identified in these tables, certain of the observed 

releases were established using “J” qualified data. Of the background results for metals that were “J” 

qualified, most were qualified because the percent moisture in the sample was above 50%. Other reasons 

included issues with the matrix spike, repeatability in lab duplicates, and repeatability in the ICP serial 

dilution. For organic analyte results, some release sample results were “J” qualified because the sample 

moisture content was greater than 70% and less than 90%. Other reasons included for PCBs were failure 

to meet absolute percent difference criteria and failure to meet continuing calibration verification (CCV) 

percent difference criteria. Some results were qualified for more than one of the above reasons.

As shown in Tables 3 and 4 of the HRS documentation record at proposal, all “J” qualified data was 

considered to be biased unknown. This assumption, as explained above, meant that the estimated upper 

and lower bounds were determined for all the “J” qualified sample results. This resulted in adjustment of 

concentration in situations where it is unnecessary, e.g., as when there was no bias, high-biased 

background data, or low-biased release data. 

In Tables 3 and 4 of the HRS documentation record at proposal, the column labeled “Adjusted 

Background” lists the greatest background concentration, or the greatest adjusted background 

concentration if the background was “J” qualified, or the greatest background SQL if the analyte was not 

detected in any background samples. Then, this value was multiplied by 3 (if detected) to set the release 

sample concentration necessary to establish an observed release when the release sample result was not 

qualified [listed in the column labeled “Adjusted Background x3 (non-J must exceed)”]. To facilitate the 

display of the large amount of data, instead of calculating an adjusted release concentration for “J” 

qualified release sample results, a second column [labeled “Adj. BG x3 x Adj. Factor (J must exceed)”] 

displays the value from the previous column multiplied again by the adjustment factor; this is the value a 

“J” qualified release result must exceed to establish an observed release. Only those release sample 

results that were above the appropriate concentration necessary to establish an observed release were 

identified as meeting observed release criteria. These samples results were bolded in Tables 3 and 4 of 

the HRS documentation record at proposal. 

EPA Alternate Observed Release Evaluation Omitting Potentially Biased Background and Release 

Results

Additionally, EPA has reviewed the analytical results used to establish observed releases at the site, and 

even if EPA were to omit “’J flagged’ estimates” as the commenter suggested, the HRS site score would 

not change. 

In the process of this review, the impact of the actual bias associated with each “J” qualified analytical 

result has been determined, and results were omitted only when the reason for the “J” qualifier indicated a 

possible bias (meaning that the result may be an estimated quantity). Based on this review, alternate 

observed release tables have been revised and added as an attachment to this support document. (See 

tables within Attachment 1 of this support document). This set of revised tables only represents an 

assessment of an alternate scenario in which potentially biased data are excluded. Qualified data are still 

appropriately included in the site evaluation in the HRS documentation record at promulgation.

For “J” qualified background sample results for which the “J” is applied only to indicate that a result was 

between the detection and quantitation limits, there is no implied bias. These results were not omitted 

from the alternate observed release evaluation.

For the metals results that were qualified only for moisture content above 50%, there is no associated 

bias; these results can be used with no further consideration and were not omitted from the alternate 

observed release evaluation. Standard laboratory techniques employed for the detection of metals in 
Newtown Creek NPL Listing Support Document September 2010

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various media are not affected by moisture content. In brief, metals are extracted from samples by 

employing an acid extraction technique, which dissolves the analytes prior to instrumental analysis. 

Whether or not there is a high level of moisture within the initial sample, the moisture does not interfere 

with the acid extraction process. Thus, no bias is associated with samples qualified based on this issue. 

For the other “J” qualified metal samples, the bias is considered unknown; unknown-biased results were 

omitted from this alternate evaluation. 

Organic results qualified only for the moisture content being between 70% and 90% were considered 

biased low. This is because the methodology used to extract organic compounds is affected by high 

sample moisture content in that all organics might not be extracted and thus not included in the results. 

PCB results associated with the absolute percent difference issue are considered biased high. PCB results 

associated with the CCV percent difference issue are considered to be affected by unknown bias. Organic 

results associated with high, low, or unknown bias were omitted from this alternate evaluation.

In situations where a result is “J” qualified for more than one reason, the bias is considered unknown and 

the result omitted from the alternate evaluation.

The results of this review are presented in Attachment 1 of this support document. In each background 

table, the second-to-last column presents the selected background level for each substance (the greatest 

concentration detected in a background sample, or the greatest SQL if the analyte was not detected in the 

background samples). The release samples results presented all meet observed release criteria.

The results of EPA’s alternate evaluation are that observed releases by chemical analysis can be identified 

throughout the length of the creek based on the concentrations of multiple substances in analytical results 

for multiple samples even when potentially biased “J” qualified results are omitted. Even based on this 

alternate evaluation, the site score of 50.00 would not be affected. 

In summary, EPA appropriately considered the possible bias of qualified data in establishing observed 

releases by chemical analysis at this site. Since EPA has properly used the “J” qualified data, there is no 

need to delete that data from the scoring in the HRS documentation record at proposal as suggested by the 

commenter.

3.16.4 Results Below CRQLs

Comment: ENVIRON questioned the quality of the data used to establish an observed release by 

chemical analysis and asserted that the background sample results were compromised by the failure to 

achieve the contract required quantitation limits (CRQL). ENVIRON stated that the “[s]election of 

Atlantic Basin as the reference site for Newtown Creek is, therefore, highly conservative and may not be 

a reasonable basis for assessing the significance of concentrations observed in Newtown Creek." 

Response: The HRS does not require background samples to achieve quantitation limits, or have 

concentrations below the CRQL for use in establishing an observed release. In fact, the HRS specifies 

what to do when the background levels are below the CRQL [SQL]. The analytical data used to establish 

an observed release by chemical analysis at the Newtown Creek site were sufficient in demonstrating a 

significant increase of hazardous substances at this site. 
Newtown Creek NPL Listing Support Document September 2010

47

The HRS defines a CRQL as the

[s]ubstance-specific level that a CLP laboratory must be able to routinely and reliably 

detect in specific sample matrices. It is not the lowest detectable level achievable, but 

rather the level that a CLP laboratory should reasonably quantify. The CRQL may or 

may not be equal to the quantitation limit of a given substance in a given sample.

Additionally, a sample quantitation limit (SQL) or a CRQLis considered by the HRS when evaluating the 

level of hazardous substances in the release samples, not in the background samples. Table 2-3 of the 

HRS directs that when the sample measurement is greater than or equal to the sample quantitation limit:

-If the background concentration is not detected (or is less than the detection limit), 

an observed release is established when the sample measurement equals or exceeds 

the sample quantitation limit.

-If the background concentration equals or exceeds the detection limit, an observed 

release is established when the sample measurement is 3 times or more above the 

background concentration.

If the sample quantitation limit (SQL) cannot be established, determine if there is an 

observed release as follows.

-If the sample analysis was performed under the EPA Contract Laboratory Program, 

use the EPA contract-required quantitation limit (CRQL) in place of the SQL.

-If the sample analysis is not performed under the EPA Contract Laboratory Program, 

use the detection limit (DL) in place of the SQL.

The background sample results need not exceed the quantitation limit in order for an observed release by 

chemical analysis to be established in accordance with the HRS. In fact, as cited above, even when the 

background concentrations are not detected (thus being less than the quantitation limit), an observed 

release is established when the release sample results equal or exceed the sample quantitation limit.

Thus, that the background sample results (Atlantic Basin data) used in establishing an observed release 

were below the CRQL or sample quantitation limits, does not identify an analytical data quality issue 

affecting the validity of the measurement or the establishment of the observed release. Regarding the 

statement that the results were compromised by concentrations being below the CRQL, this is not a data 

quality issue. It simply means that the contaminant levels are below the CRQL – not that there was any 

problem in the analysis.

This comment has no effect on the HRS score or the decision to place the site on the NPL.

3.16.5 Sample Similarity

Comment: Several commenters argued that the background samples used to establish an observed release 

were not appropriate because of differences between the physical properties of the background and 

release sediments.

HydroQual stated that the HRS evaluation to place the Newtown Creek site on the NPL was driven by the 

consideration of sediments in Newtown Creek compared to the differences measured in contaminants in 

sediments in the Atlantic Basin. HydroQual added that these comparisons were done on a bulk sediment
Newtown Creek NPL Listing Support Document September 2010

48

basis and did not account for physical differences between the sediments from these two locations, such 

as the differences in organic content. It continued: 

The question of whether the Atlantic Basin sediments appear cleaner than Newtown 

Creek sediments because they received less source releases of contaminants or because 

they don’t have the capacity to strongly bind and retain contaminants remains 

unanswered by the analysis underlying the HRS review. The definition being used for an 

observed release is significance above background. Significance above background will 

be different on a bulk sediment basis and on an organic carbon normalized basis. 

Environ, also commenting on the background samples, stated that:

since the background reference location used for the HRS evaluation does not reflect 

similar physical conditions as Newtown Creek, and data quality from the background 

location are inadequate for comparison with Newtown Creek data, the background data 

should be disregarded for the purpose of identifying whether or not Newtown Creek 

should be considered for the NPL. 

HydroQual criticized the implied link in the HRS documentation record between CSO activity, TOC 

concentrations, and hazardous substance concentrations. HydroQual stated that:

The EPA HRS Documentation implies that high TOC levels are indicative of 

anthropogenic sources such as CSOs and the absence of high TOC indicates absence of 

hazardous sources. This logic is somewhat flawed in that while a CSO might very well 

be a source of TOC it is not necessarily a source of hazardous material. Similarly, a 

source of hazardous material (e.g., a transformer manufacturer) might not be a source of 

TOC. Further, TOC concentrations in the vicinity of a CSO outfall could be elevated for 

reasons other than the CSO (e.g., soil leaching, etc.) 

HydroQual alleged that the comparison between background and release samples should have taken into 

account the differences in TOC concentrations, and that these differences should have been corrected for

in order to yield an accurate evaluation. HydroQual stated that “[h]igher total organic carbon (TOC) 

concentrations in the sediment bed are reported for Newtown Creek than for the Atlantic Basin,” and that 

“[w]hen normalized for organic carbon, concentrations of a contaminant in different sediment samples are 

comparable.”

GLA stated that the use of Atlantic Basin as background skewed the results of the sampling in Newtown 

Creek, and resulted in “artificially elevated ‘observed releases’ upon which the proposed listing is 

predicated.” ELM stated:

[t]he sediments in the Atlantic Basin are characterized by a high sand content and low 

organic content, conditions that typically result in minimal binding of contaminants to 

those sediments. Consequently, these sediments will yield concentrations of 

contaminants that are skewed low due to the high sand and low organic content. 

GLA commented that the Atlantic Basin differs materially from Newtown Creek, and thus, stated that 

Atlantic Basin sediments are “overly conservative” and are a “non-representative benchmark” to use for 

determining the presence or absence of ‘observed release’ contaminants.
Newtown Creek NPL Listing Support Document September 2010

49

HydroQual also criticized the implied link in the HRS documentation record between CSO activity, TOC 

concentrations, and hazardous substance concentrations. HydroQual stated that:

Another point is that the EPA HRS Documentation implies that high TOC levels are 

indicative of anthropogenic sources such as CSOs and the absence of high TOC indicates 

absence of hazardous sources. This logic is somewhat flawed in that while a CSO might 

very well be a source of TOC it is not necessarily a source of hazardous material. 

Similarly, a source of hazardous material (e.g., a transformer manufacturer) might not be 

a source of TOC. Further, TOC concentrations in the vicinity of a CSO outfall could be 

elevated for reasons other than the CSO (e.g., soil leaching, etc.) 

Response: The background samples used in establishing an observed release from the Newtown Creek 

site are sufficiently similar to the release samples for the purposes of identifying observed releases within 

Newtown Creek. The HRS considers sample comparability in Section 4.1.2.1.1, Observed release. It 

states in part:

Establish an observed release to surface water for a watershed by demonstrating that the 

site has released a hazardous substance to the surface water in the watershed. . . .

• Chemical analysis:

o Analysis of surface water, benthic, or sediment samples indicates that the 

concentration of hazardous substance(s) has increased significantly 

above the background concentration for the site for that type of sample 

(see section 2.3).

-Limit comparisons to similar types of samples and 

background concentrations – for example, compare surface 

water samples to surface water background concentrations

[emphasis added].

The HRS addresses background only in the context of identifying an observed release of substances to the 

environment by chemical analysis. HRS Section 2.3, Likelihood of release, states:

The minimum standard to establish an observed release by chemical analysis is analytical 

evidence of a hazardous substance in the media significantly above the background level.

The similarity in the physical properties of background and release samples is considered in establishing 

an observed release by chemical analysis to ensure that the increase in contaminant concentrations is due 

to a release, and not just due to a difference in the physical makeup of the samples. 

Why the samples are considered sufficiently similar to establish observed releases is discussed on pages 

20 and 21 of HRS documentation record at proposal. Tables 1 and 2 on pages 22 and 23 of the HRS 

documentation record at proposal identify the sediment samples used in establishing an observed release 

from the site, including the 6 background samples used to establish the background levels of hazardous 

substances. Included in these tables are the various physical attributes of each sample, including the date 

and time of sample collection, depth of sample below top of sediment, and total organic content (TOC). 

Page 20 of the HRS documentation record at proposal describes why these samples were considered 

sufficiently similar to the Newtown Creek sediment samples to establish releases had occurred. It states:
Newtown Creek NPL Listing Support Document September 2010

50

Since the contamination begins at the head of the creek, it was not possible to obtain 

upstream samples. Therefore, samples collected from a nearby similar water body, 

Atlantic Basin, were used to establish background concentrations. Figure 3 provides the 

map of the background sample locations in the Atlantic Basin. The background samples 

from Atlantic Basin and contaminated samples from Newtown Creek were handled the 

same procedurally and were similar physically, as described on pages 20 and 21 of the 

HRS documentation record at proposal:

• Sampling Methods: The background and release sediment samples were all 

collected by EPA, using Standard Operating Procedures (SOP), during the 

sampling event from February-April 2009. Surface samples were collected with 

a Young-modified Van Veen dredge, and subsurface samples were collected with 

a vibracore [Ref. 23, pp. 7-70; 25, pp. 4, 6-16, 22-23].

• Analytical Procedures: The background and release samples were all analyzed 

for TAL metals by ChemTech Consulting Group of Mountainside, New Jersey 

and for TCL VOCs, SVOCs, and PCBs by DataChem Laboratories of Salt Lake 

City, Utah [Ref. 25, pp. 25-132]. The chemical analyses were coordinated 

through the Contract Laboratory Program (CLP), and EPA validated the 

analytical results according to Region 2 Data Validation guidelines [Ref. 26 

through 46]. The samples were also analyzed for grain-size distribution 

according to EPA SOP Bio 8.2 (Bucket Method) and for TOC according to EPA 

SOP C-88 (Combustion/IR Method) at the EPA laboratory in Edison, New Jersey 

[Ref. 25, pp. 1-3; 47, pp. 1-55; 48, pp. 1-42; 74, pp. 1-9; 75, pp. 1-14].

• Physical Setting: The Newtown Creek and Atlantic Basin are both part of the 

same estuary (i.e., the New York-New Jersey Harbor Estuary) and are classified 

under the HRS as “Coastal tidal waters”, in which flow and depth characteristics 

are not considered to be applicable for the evaluation [Ref. 1, pp. 51605, 51613; 

10, pp. 67].

• Sampling Depth: Background and release surface samples were all collected 

from the 0- to 2-foot interval below top of sediment, while background and 

release subsurface samples were collected at depths ranging from 2 to 6 feet 

below top of sediment (EPA evaluated surface and subsurface samples 

separately) [Ref. 25, pp. 616]. The height of the water column ranged from 14 to 

24 feet for background locations and 7 to 23 feet for release locations [Ref. 24, 

pp. 1-137].

• Percent Moisture (based on Inorganic sample fraction): The percent moisture in 

the background samples ranged from approximately 61% to 71%, while percent 

moisture in the release samples ranged from approximately 30% to 82% [Ref. 26, 

pp. 6-14; 27, pp. 3, 19-38; 28, pp. 3-22, 36-44; 29, pp. 3-23, 31-50; 30, pp. 5-12; 

37, pp. 5-13; 38, pp. 5-17; 41, pp. 5-18; 42, pp. 2-15; 43, pp. 5-22].

• Sample Description: Visual descriptions from core logs show that the sediments 

within Atlantic Basin and Newtown Creek consist predominantly of “soft muck” 

[Ref. 24, pp. 1-137]. Grain-size analyses show that most of the samples contain 

high percentages of fine-grained material (i.e., clay and silt), with the background 

samples showing the highest percentages of fines and lowest percentages of sand. 
Newtown Creek NPL Listing Support Document September 2010

51

Since many contaminants have a greater affinity for clay and silt than for sand, 

the reported background concentrations might be skewed high with respect to 

release concentrations [Ref. 47, pp. 2-54; 49, p. 6]. E PA considers this type of 

comparison to be a conservative one (i.e., higher scrutiny for data to meet 

observed release criteria).

• Total Organic Carbon: The analytical results indicate that TOC levels are higher 

in the Newtown Creek sediments than in the Atlantic Basin sediments [Ref. 48, 

pp. 1-42]. EPA considers this to be further indication that anthropogenic 

contributions (e.g., CSOs) have affected Newtown Creek more than Atlantic 

Basin, and that hazardous substance concentrations in Atlantic Basin are 

indicative of background conditions.

As cited above, background samples taken from the Atlantic Basin were compared to sediment samples in 

Newtown Creek using multiple criteria (i.e., same time frame, same sampling and analytical methods, 

same laboratories, similar physical setting and sampling depths, overlapping ranges of percent moisture 

values, and similar sediment descriptions), and were identified as sufficiently similar to show the 

increased concentrations were due to the release, not to the differences in the physical characteristics of 

the samples. The only characteristic that could be considered significantly different in the release and the 

background samples and possibly could cause a significant difference in contaminant levels between the 

two is the TOC levels. 

Because of this difference in TOC levels, consideration was given to the issue of whether the difference 

could have been the cause of the significant increase separate from a release. As pointed out by the 

commenters, many organics preferentially adsorb to organic matter (measured in this case as TOC). 

Thus, if the level of organic matter in the background samples is lower than in the release samples, a 

higher concentration of organic hazardous substances in the release samples may be due simply to the 

difference in organic matter, not to a release. 

However, while there is more organic matter in the release samples at this particular site, this does not 

document that there has not been a release of contaminants to the sediments in Newtown Creek. In fact, 

as explained in the HRS documentation record at proposal, the organic matter in the Creek at this site is 

part of the material released into the Creek and the difference in the organic levels in the background and 

release samples is a result of this release, and not an artifact of differences in the physical properties of the 

samples. Aside from CSOs, which have high levels of organic waste from humans and have contributed 

to the high levels of TOC measured in the Newtown Creek sediments, other contributors of both organic 

substances and contaminants have released to the Creek. As detailed on page 38 of the HRS 

documentation record at proposal, a wide variety of contributors of various organic substances have been 

identified, such as transportation-related activities, petroleum spills, creosote-treated marine pilings, 

utility poles, railroad ties, and contaminated properties including MGPs, all of which are known sources 

of organic wastes. Thus, for this site, the difference in organic content in the background and release 

samples is further evidence of a release in the Creek, not evidence to the contrary.

In addition, many of the organic hazardous substances found in the Creek sediment are themselves 

anthropomorphic in origin, e.g., PCBs and chlorinated solvents. The presence of these substances clearly 

is a result of a release. 

Regarding HydroQual’s assertions that it is flawed to assert that high TOC levels are indicative of 

anthropogenic releases such as from CSOs, and the absence of high TOC indicates the absence of a 

source, given the setting at this site these assertions are justified and not flawed. They are supported both 

by the characteristics of the known sources of organic discharges to the Creek and by analytical data that 
Newtown Creek NPL Listing Support Document September 2010

52

show not only are organic contaminants in higher concentrations in the Creek, but so are several inorganic 

contaminants ( e.g., metals), which the commenters acknowledge do not preferentially concentrate in 

organic matter. The presence of higher organic content in the Creek, according to the commenters’ 

assertions should depress the inorganic contaminant concentrations as much, if not more so than it could

have elevated the organic contaminant concentrations; yet there are multiple observed releases of 

inorganic substances also identified in the Creek.

Furthermore, if the background and observed release results were normalized for TOC, as described in 

Attachment E of the City’s comments5

Sample ID

, observed releases of organic substances would still be established 

throughout the Creek as well as observed releases of metals. Table 1 below highlights that observed 

releases of organic substances occur at various points throughout the extent of Newtown Creek after 

normalizing for TOC as presented by the commenter. To illustrate this, the samples in Table 1 below

were selected from the mouth, middle portion, and head of the Creek (graphically presented on Figure 1 

of this support document) to highlight that samples of commonly detected organic analytes (including 

those used in the waste characteristics evaluation) throughout the Creek would meet observed release 

criteria, even after normalizing for TOC. (Note that there are many other sample results that, if 

normalized for TOC, would still have resulted in organic hazardous substances exceeding observed 

release criteria, and would still result in establishing the extent of the contaminated sediment source and 

the HRS site score of 50.00 would remain.)

Table 1: TOC Normalized Concentrations of Organic Hazardous Substances 

% Organic

Matter

Pyrene Benzo(a)pyrene Benzo(a)anthracene

Result (μg/kg)

[Table 3 of the 

HRS 

documentation 

record at 

proposal]

After TOC 

Normalization 

(Result / % 

TOC)1

Result (μg/kg) 

[Table 3 of the 

HRS 

documentation 

record at 

proposal]

After TOC 

Normalization 

(Result / % 

TOC)1

Result (μg/kg)

[Table 3 of the 

HRS 

documentation 

record at 

proposal]

After TOC 

Normalization 

(Result / % 

TOC)1

NC-SD107A

(Highest 

Background 

detects)

3.8% 75 J 1,973.7 45 J 1,184 49 J 1,289.5

NC-SD01A 11.0% 690 6,272 730 6,636

NC-SD03A 5.0% 630 12,600 630 12,600

NC-SD22A 5.0% 1,400 28,000 820 16,400 820.0 16,400

NC-SD35A 7.0% 2,900 41,428 1,000 14,285 1,800.0 25,714

NC-SD62A 14.0% 12,000 85,714 2,800 20,000 3,900.0 27,857

Note: Bolded items in this table indicate that the organic carbon normalized results are at least 3 times greater 

than the highest TOC-normalized background results, thus still meeting HRS observed release criteria according 

to HRS Table 2-3. Items in italics indicate the highest detected background level of each analyte. J-qualified data 

presented in background samples above were below the sample quantitation limit and are not biased.

 5 In Attachment E of the City’s comments, HydroQual presents the method for obtaining the carbon normalized 

values from sample “dry weight” results. Using this method to obtain the carbon normalized result, the sample 

result (dry weight), is divided by the percent total organic carbon within the sample. For example, the sample result 

of pyrene within sample NC-SD35A was 2,900 μg/kg, which when divided by the percent TOC within that sample 

(7%, or 0.07), results in an organic carbon normalized value of 41,428 μg/kg. 
--- - - Sample locations listed above are labeled SDXXA 

August 2010 

• Surface Sediment Sample Location 1,200 600 0 1,200 Surface and Subsurface Sediment 

Sample Location Map • Subsurface Sediment Sample Locations SOURCE: 

Graphic Scale In Feet 1. New York State Interactive Mapping Gateway. BrooklynNE_tileO.sid, BrooklynNE_tile1.sid, February 

- April 2009 • Reported Fishing I Crabbing Locations BrooklynNE_tile2.si d, BrooklynN E_tile3.sid, BrooklynNW_tileO.sid, BrooklynNW_tile1 .sid, Newtown Creek, Brooklyn / Queens, New York BrooklynNW_tile2.sid, BrooklynNW_tile3.sid, accessed at http://www1.nysgis.state.ny.us. ffi O-ECT 

Documented Zone of Contamination September 2008. Newtown Creek 

NOTE: 2. Weston, Site Logbook, Newtown Creek Site, Document Control 

1. ,AJI Sample IDs preceded by"Ne-" No. 524-4E-ADGW, February-April 2009. 

3. Riverkeeper, Inc. Web Site (www.riverkeeper.org) and written communication. April 2009. EPA
Newtown Creek NPL Listing Support Document September 2010

54

Aside from the observed releases of organic hazardous substances documented within Newtown Creek, 

observed releases of metals are still present even after normalizing for inorganic content in each sample. 

Based on the concept that background samples with higher total inorganic content can potentially have 

higher metals results, observed releases of metals would still be documented throughout the length of the 

Creek.

In summary, an observed release of both metals and organics has been documented at the Newtown Creek 

site, even after normalization of analytical data due to organic content (which, as explained above, is not 

an evaluation required by the HRS). Thus, the relatively higher level of TOC within the observed release 

samples compared to the background samples, does not compromise the integrity of the analysis of 

sample similarity between observed release and background samples or negate the identification of 

observed releases or the site score. 

This comment has no effect on the site score or the decision to list the site on the NPL.

3.16.6 Clarity of HRS Observed Release Tables

Comment: HydroQual alleged that several tables within the HRS rule lack clarity, and that some of the 

language within these tables is misleading, particularly Tables 1 through 4. HydroQual stated that 

“[t]ables 1 through 4 in the HRS Documentation identify the samples as ‘Observed Release 

Concentrations,’” and that this naming convention “introduces the presumption that the sediment bed is a 

release independent of completing a comparison to background concentrations.” 

Response: The tables within the HRS documentation record at proposal show all necessary analytical 

data and considerations of data quality issues needed in an HRS evaluation to establish an observed 

release by chemical analysis and document that observed release samples are contaminated significantly 

above background. 

As presented on pages 24 and 25 of the HRS documentation record at proposal, Tables 1 and 2, titled in 

part “Background and Observed Release Sample Information” present the specific sample identifier 

information and physical characteristics of each sample, such as sample identification numbers, date and 

time of sample collection, composition information (sand, silt, clay), depths of sample collection, and 

total organic content. Tables 3 and 4 of the HRS documentation record at proposal, titled in part 

“Background and Observed Release Concentrations” present the results of samples taken from the 

background location (Atlantic Basin) and the observed release location (Newtown Creek). Section 

3.16.3, Use of Qualified Data, of this support document describes in detail how the tables were used to 

document an observed release at this site. 

Regarding the commenter’s assertion that the naming convention applied in Tables 1 through 4 presumes 

that the sediment bed is a release independent of the completion of comparison of background, a 

comparison of background and release samples was completed to establish the significant increase of 

hazardous substances within the release samples to meet the HRS criteria to establish an observed release 

by chemical analysis (as discussed in section 3.16.3, Use of Qualified Data, of this support document). 

Specifically, the column titled “Background Concentrations” within Tables 3 and 4 presents the 

background levels, and the column titled “Observed Release Concentrations” shows the concentration 

that meets or exceeds observed release criteria. Also, as stated on page 21 of the HRS documentation 

record at proposal, those concentrations in Tables 2 and 4 that are presented in bold meet the criteria for 

an observed release. Thus, the tables themselves present comparison of background and release analytical 

data used in establishing an observed release. 

This comment has no effect on the site score or on the decision to list the site on the NPL.
Newtown Creek NPL Listing Support Document September 2010

55

3.16.7 Attribution

Comment: HydroQual argued that CSO inputs of hazardous substances into the surface water are small 

relative to other current sources. 

Response: An observed release of hazardous substances to Newtown Creek was assigned to the site. 

This observed release was not individually attributed to CSO’s or any other documented contributors to 

the contamination.

 

HRS section 4.1.2.1.1, Observed Release, states in relevant part:

Establish an observed release to surface water for a watershed by demonstrating 

that the site has release a hazardous substance to the surface water in the 

watershed. Base this demonstration on either:

• Direct observation: . . .

• Chemical analysis: 

o Analysis of surface water, benthic, or sediment samples indicates that the 

concentration of hazardous substance(s) has increased significantly 

above the background concentration for the site for that type of sample 

(see section 2.3)

- Limit comparisons to similar types of samples and background 

concentrations—for example compare surface water samples to 

surface water background concentrations.

- . . . .

o Some portion of the significant increase must be attributable to the site to 

establish the observed release, except: when the site itself consists of 

contaminated sediments with no identified source, no separate 

attribution is required [emphasis added].

Page 38 of the HRS documentation record at proposal, under the heading Attribution, states:

Sediments in Newtown Creek are contaminated with metals, VOCs, SVOCs including 

PAHs, and PCBs for a length of more than 3 miles [see Section 2.2]. The origin of these 

hazardous substances in the contaminated sediments has not been identified due to the 

presence of multiple possible sources for each substance. There are numerous routes that 

contamination can be taking to reach the water body and underlying sediments, including 

spillage during product shipping and handling, direct disposal and discharge, storm water 

runoff, and air deposition. As a result, the source(s) of all the contamination in any 

particular location in the creek cannot be determined.

Thus, sediments at the Newtown Creek site have been documented as having hazardous substances above 

observed release criteria, and the site itself consists of contaminated sediments with no identified source. 

As such, attributing the significant increase of hazardous substances at the site to a specific origin is not 

required. 
Newtown Creek NPL Listing Support Document September 2010

56

Regarding HydroQual’s statement that inputs of hazardous substances as a result of CSO discharges are 

small relative to other sources, although the HRS documentation record at proposal does identify that 

CSOs are known contributors of various hazardous substances to the surface water migration pathway, no 

attribution has specifically been assigned to CSOs or other storm water discharges. In the sense that this 

comment is related to liability, see section 3.5, Liability, of this support document.

This comment has no effect on the site score or the decision to list the site on the NPL.

3.16.8 Contamination in Mouth of Creek

Comment: The City, GLA, ELM, and ENVIRON questioned the inclusion of the mouth of the Creek in 

the site, citing the difference in physical characteristics and contaminant levels between the mouth and 

body of Newtown Creek. The commenters alleged that the extent of contamination is not adequately 

characterized, and claimed the mouth presents no significant risk to humans or aquatic life.

ENVIRON, GLA, and ELM commented that the lower portions of the Creek (or mouth of Newtown 

Creek) contain sediments that have significantly less contamination and do not pose an unacceptable risk. 

According to GLA, inclusion of the mouth of the Creek as part of the site inappropriately taints the mouth 

as being more contaminated than it is and detracts the focus of the cleanup away from the contaminated 

sediments upstream. 

GLA stated that EPA’s sediment data indicates:

a downstream concentration gradient from the headwaters of Newtown Creek to the 

confluence with the East River. Concentrations of SVOCs in sediments are substantially 

higher (3 to 4 times) and more frequently detected in sediments throughout the Creek 

than in the first 0.5 miles of the Creek . . . concentrations of PCBs are 5 to 10 times 

higher throughout the Creek than at the mouth. Frequency of COPC [contaminants of 

potential concern] detection also decreases from upstream to downstream, with only 2 

surface samples downstream of Dutch Kills meeting the criteria for an ‘observed release.’

GLA added that:

NYCDEP’s sediment sampling in Newtown Creek and Whale Creek Canal . . . indicate a 

similar finding – concentrations of COPCs [contaminants of potential concern] in the 

mouth of Newtown Creek are markedly lower than the concentrations further up the 

Creek. 

ELM stated that “of the 71 sample locations in Newtown Creek, 8 samples were fairly evenly distributed 

in the mouth of the Creek.” It added that of those 8 samples from the mouth of the Creek, observed 

release of SVOCs was met in 2 surface samples and 3 subsurface samples, and one sample met observed 

release of PCBs. 

GLA claimed that the mouth of the Creek comprises a different environmental setting than the rest of the 

Creek, stating that the mouth of the Creek differs materially in its characteristics from the remainder of 

the Creek, including levels of contamination. ENVIRON echoed a similar contention. It stated that the 

lower portion of Newtown Creek does not warrant inclusion as part of the site because:
Newtown Creek NPL Listing Support Document September 2010

57

the data show that the observed conditions within the lower portion of Newtown Creek 

west of Manhattan Avenue/Vernon Boulevard are measurably different than the upper 

reaches of the Creek, the conditions in the lower portion of the Creek do not present a 

substantial risk to human health or the environment.

The City stated that the presented data:

indicates that contaminants are not uniformly distributed throughout the sediment in the 

Creek . . . further EPA investigation is necessary to identify the nature and extent of 

contamination throughout the length of the 3.8-mile waterway; to prevent a 

misrepresentation of the whole Creek as containing uniform amounts of hazardous 

materials; and to assist in identifying contributing upland sources.

ENVIRON asserted that the area near the mouth of Newtown Creek is not associated with the historic 

petroleum releases, and current data provided in the HRS documentation record at proposal shows 

petroleum contamination at the mouth of the Creek below that associated with risk to aquatic organisms.

Response: Sediments in the mouth of Newtown Creek are documented to contain many of the same

hazardous substances at observed release levels as the rest of the Creek and are considered part of the site. 

At the Newtown Creek site, one contaminated sediment source running the entire length of the Creek has 

been correctly delineated, including the mouth of the Creek.

The HRS defines “site” as “[a]ny area where a hazardous substance has been deposited, stored, disposed, 

or placed, plus those soils that have become contaminated from migration of a hazardous substance.” 

Also, the HRS defines a “source” as an: 

[a]rea(s) where a hazardous substance has been deposited, stored, disposed, or placed, or 

has otherwise come to be located. Sources do not include those volumes of air, ground 

water, surface water, or surface water sediments that have become contaminated by 

migration, except: in the case of either a ground water plume with no identified source or 

contaminated surface water sediments with no identified source, the plume or 

contaminated sediments may be considered a source.

Also, in establishing the target distance limit of the surface water pathway overland/flood migration 

component, HRS Section 4.1.1.2, Target Distance Limit, states in relevant part:

For sites consisting solely of contaminated sediments with no identified source, 

determine the target distance limit as follows:

If there is no clearly defined direction of flow, begin measuring the target distance limit 

at the center of the area of observed sediment contamination. Extend the target distance 

limit as an arc either for 15 miles along the surface water or to the most distant sample 

point that meets the criteria for an observed release to that watershed, whichever is 

greater. Determine the area of observed sediment contamination based on available 

samples that meet the criteria for an observed release. [emphasis added]

Page 18 of the HRS documentation record at proposal states that “[t]he analytical results indicate that 

metals, VOCs, SVOCs including PAHs, and PCBs are present in the Newtown Creek sediments at 

concentrations that meet the criteria for observed release.” Page 19 of the HRS documentation record 

states: 
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58

The EPA sampling results using observed release criteria show that contaminated 

sediments are located throughout Newtown Creek, from the navigable portion of English 

Kills (samples NC-SD71A and NC-SD71B) to the East River (samples NC-SD01A and 

NC-SD01B). The sample locations are shown in Figure 2.

Page 38 of the HRS documentation record at proposal states:

An observed release by chemical analysis is documented in Newtown Creek between 

sample location NC-SD71A in English Kills and sample location NC-SD01B, 

approximately 3 miles downstream [see Section 2.2].

Hazardous substances that meet the criteria for an observed release to surface water were documented 

throughout the Creek (refer to Section 3.16, Likelihood of Release, of this support document). Thus, 

hazardous substances were identified as associated with the contaminated sediment source through 

sampling, and the distribution of the observed release samples determined the area of observed sediment 

contamination, which includes the mouth of the Creek

Table 1 below documents that hazardous substances were detected in surficial and subsurface sediments 

above observed release criteria in mouth sample locations; these locations are within the area delineated 

as the mouth of the Creek in Figure 1 of the comments submitted by GLA. Figure 1 in section 3.16.5, 

Sample Similarity, of this support document presents the geographic location of these samples.

Table 2: Hazardous Substances Detected in Mouth of Newtown Creek

SAMPLE ID NC-SD01A NC-SD03A NC-SD01B NC-SD07B

Hazardous Substance Result 

(μg/kg)

SQL Result 

(μg/kg)

SQL Result 

(μg/kg)

SQL Result 

(μg/kg)

SQL

Phenanthrene 600 440 1,200 420

Anthracene 780 440

Fluoranthene 1,100 440 1,300 420 640 480

Benzo(a)pyrene 690 440 630 420 610 480

Benzo(a)anthracene 730 440 630 420 600 480

Chrysene 680 440 650 420 600 480

Bis(2-

ethylhexyl)phthalate

640 440 1,400 480

Benzo(b)fluoranthene 710 440 760 420 530 480

Aroclor-1242 120 92

That the levels of contamination of select hazardous substances are less in the mouth of the Creek than in 

other parts of the Creek does not preclude the findings that hazardous substances have been detected 

within the mouth sediments at levels meeting observed release criteria or the delineation of a single 

contaminated sediment source. Although EPA agrees that certain portions of the Creek sediment bed are 

more contaminated with certain hazardous substances than other portions of the Creek sediments, 
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59

hazardous substances are documented at greater than observed release concentrations within the mouth of 

the Creek and these locations are shown to be contiguous to the rest of the Creek. In fact, the same 

substances presented in Table 2 above are documented at various locations throughout the rest of the 

Creek (see 3.13, Contaminated Sediment Source, of this support document).

Furthermore, as samples within the mouth of the Creek contained hazardous substances meeting observed 

release criteria, the sediment in the mouth would qualify as a sediment source. However, samples 

upstream from the mouth are continuously contaminated with these and various hazardous substances, 

and as such, the contaminated sediment source constitutes the entire length of the Creek.

This comment has no effect on the HRS site score or the decision to place the site on the NPL.

3.17 Waste Characteristics

Comment: HydroQual, ELM, ENVIRON, and GLA commented on the adequacy of various portions of 

the waste characteristics component of the HRS score. Specific comments challenging this component 

are addressed in the following subsections: 

• 3.17.1 Toxicity/Bioaccumulation

• 3.17.2 Bioavailability

3.17.1 Toxicity/Bioaccumulation

Comment: HydroQual questioned the methodology used to assign toxicity values to the hazardous 

substances in the HRS documentation record. HydroQual asserted that the brackish nature of Newtown 

Creek and the wide range of salinity observed in the Creek are not ideal for HRS evaluation because 

factors used in the HRS scoring methods are specific to bioaccumulation and toxicity in either fresh water 

or salt water. It also stated that Newtown Creek is scored higher than if it were scored as entirely fresh 

water or as entirely salt water. The contaminants for which there are HRS scoring differences between 

fresh water and salt water include pyrene, silver, benzo(a)pyrene, and cadmium. 

Response: The toxicity and bioaccumulation factor values have been assigned consistent with the HRS. 

The human toxicity factor value is used in the evaluation of the surface water human food chain threat; 

the ecosystem toxicity factor value is used in the evaluation of the surface water environmental threat. 

Bioaccumulation potential factor values are used in both the human food chain and environmental threats. 

The toxicity for the human food chain threat is assigned independent of salinity. However for this threat, 

the salinity of the water body is considered when assigning the bioaccumulation potential factor value. 

The ecosystem toxicity and bioaccumulation potential factor values are assigned based on salinity of the 

Creek. 

Toxicity and the Surface Water Pathway Human Food Chain Threat

Salinity is not considered when assigning the human toxicity factor value used in scoring the surface 

water human food chain threat. HRS Section 4.1.3.2.1.1, Toxicity, contains the directions for assigning 

the human toxicity factor value for the surface water pathway human food chain threat. It instructs the 

scorer to “[a]ssign a toxicity factor value to each hazardous substance as specified in section 2.4.1.1,”

which states the following:

Evaluate toxicity for those hazardous substances at the site that are available to the 

pathway being scored. For all pathways and threats, except the surface water 
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60

environmental threat, evaluate human toxicity as specified below. For the surface water 

environmental threat, evaluate ecosystem toxicity as specified in section 4.1.3.2.1.1.

Establish human toxicity factor values based on quantitative dose-response parameters 

for the following three types of toxicity:

• Cancer -- Use slope factors (also referred to as cancer potency factors) combined 

with weight-of-evidence ratings for carcinogenicity. If a slope factor is not available 

for a substance, use its ED10 value to estimate a slope factor as follows:

Slope factor = 1 / 6 (ED10)

• Noncancer toxicological responses of chronic exposure -- use reference dose 

(RfD) values.

• Noncancer toxicological responses of acute exposure -- use acute toxicity 

parameters, such as the LD50.

Assign human toxicity factor values to a hazardous substance using Table 2-4, as follows:

• If RfD and slope factor values are both available for the hazardous substance, 

assign the substance a value from Table 2-4 for each. Select the higher of the two 

values assigned and use it as the overall toxicity factor value for the hazardous 

substance.

• If either an RfD or slope factor value is available, but not both, assign the 

hazardous substance an overall toxicity factor value from Table 2-4 based solely on 

the available value (RfD or slope factor).

• If neither an RfD nor slope factor value is available, assign the hazardous 

substance an overall toxicity factor value from Table 2-4 based solely on acute 

toxicity. That is, consider acute toxicity in Table 2-4 only when both RfD and slope 

factor values are not available. 

• If neither an RfD, nor slope factor, nor acute toxicity value is available, assign 

the hazardous substance an overall toxicity factor value of 0 and use other hazardous 

substances for which information is available in evaluating the pathway.

Thus, the HRS does not instruct the scorer to consider salinity in the assignment of the toxicity 

value for the human food chain threat. 

Page 44 of the HRS documentation record at proposal, section 4.1.3.2.1 (human food chain 

threat), presents the toxicity, persistence, and bioaccumulation factor values for each of the 

hazardous substances found in the observed release in the Creek sediments. The human toxicity 

values used for the human food chain threat, as specified by HRS Section 2.4.1.1, excerpted 

above, are based on carcinogenicity and non-cancer risk and do not vary based on fresh, brackish 

or salt water regime. 

Therefore, this comment has no impact on the assignment of the toxicity factor value for the 

human food chain threat.

Bioaccumulation and the Surface Water Pathway Human Food Chain Threat
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For the surface water pathway human food chain threat, salinity of the water is considered in assigning 

the bioaccumulation potential factor value. HRS Section 4.1.3.2.1.3, Bioaccumulation potential, for the 

surface water pathway human food chain threat, instructs the scorer to: 

Use the following data hierarchy to assign a bioaccumulation potential factor value to 

each hazardous substance: 

• Bioconcentration factor (BCF) data. 

• Logarithm of the n-octanol-water partition coefficient (log Kow) data. 

• Water solubility data. 

Assign a bioaccumulation potential factor value to each hazardous substance from Table 

4-15. 

If BCF data are available for any aquatic human food chain organism for the substance 

being evaluated, assign the bioaccumulation potential factor value to the hazardous 

substance as follows: 

• If BCF data are available for both fresh water and salt water for the hazardous 

substance, use the BCF data that correspond to the type of water body (that is, fresh water 

or salt water) in which the fisheries are located to assign the bioaccumulation potential 

factor value to the hazardous substance. 

• If, however, some of the fisheries being evaluated are in fresh water and some are in 

salt water, or if any are in brackish water, use the BCF data that yield the higher factor 

value to assign the bioaccumulation potential factor value to the hazardous substance. 

• If BCF data are available for either fresh water or salt water, but not for both, use 

the available BCF data to assign the bioaccumulation potential factor value to the 

hazardous substance. [emphasis added]

If BCF data are not available for the hazardous substance, use log Kow data to assign a 

bioaccumulation potential factor value to organic substances, but not to inorganic 

substances. If BCF data are not available, and if either log Kow data are not available, the 

log Kow is available but exceeds 6.0, or the substance is an inorganic substance, use water 

solubility data to assign a bioaccumulation potential factor value. 

Do not distinguish between fresh water and salt water in assigning the 

bioaccumulation potential factor value based on log Kow or water solubility data. 

If none of these data are available, assign the hazardous substance a bioaccumulation 

potential factor value of 0.5. [emphasis added]

Page 44 of the HRS documentation record at proposal, section 4.1.3.2.1 (human food chain 

threat), presents the toxicity, persistence, and bioaccumulation factor values for each of the 

hazardous substances found in the observed release in the Creek sediments and provides the 

citation to the source of the assigned values. The bioaccumulation potential factor values used for 

the human food chain threat, as specified by HRS Section 4.1.3.2.1.3, excerpted above, are 

assigned based on the hierarchy of data specified in the HRS, and the factor values used in the 

calculation of the threat score (the highest combined value, see HRS Section 4.1.3.2.1.4) are 

based on BCF data. Thus the values are assigned based on Newtown Creek being a brackish 

water body, documented in the footnote to the table on page 45 of the HRS documentation record 

at proposal (and not contested by HydroQual). It states:
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NYCDEP has reported salinity measurements ranging from 18.5 to 22.8 parts per 

thousand (ppt) for Newtown Creek in the vicinity of Kosciuszko Bridge, which carries 

the Brooklyn-Queens Expressway, making it brackish water [Figure 1 of this HRS 

documentation record; Ref. 52, p. 112]. The HRS (Section 4.1.3.2.1.3) states that if any 

fisheries being evaluated are in brackish water, assign the higher of the fresh water and 

salt water bioaccumulation potential factor values to each hazardous substance [Ref. 1, p. 

51617]. Therefore, the higher Food Chain Bioaccumulation Potential Factor Values are 

used for the Newtown Creek fishery.

Toxicity/Bioaccumulation and the Surface Water Pathway Environmental Threat

For the surface water pathway environmental threat, both the toxicity and the bioaccumulation 

potential factor values are assigned values for each substance reflecting the salinity of the water 

body. HRS Section 4.1.4.2.1.1, Ecosystem toxicity, specifies the following:

Assign an ecosystem toxicity factor value from Table 4-19 to each hazardous substance 

on the basis of the following data hierarchy:

• EPA chronic Ambient Water Quality Criterion (AWQC) for the substance.

• EPA chronic Ambient Aquatic Life Advisory Concentrations (AALAC) for the 

substance.

• EPA acute AWQC for the substance.

• EPA acute AALAC for the substance.

• Lowest LC50 value for the substance.

In assigning the ecosystem toxicity factor value to the hazardous substance:

• If either an EPA chronic AWQC or AALAC is available for the hazardous 

substance, use it to assign the ecosystem toxicity factor value. Use the chronic 

AWQC in preference to the chronic AALAC when both are available.

• If neither is available, use the EPA acute AWQC or AALAC to assign the 

ecosystem toxicity factor value. Use the acute AWQC in preference to the acute 

AALAC. 

• If none of the chronic and acute AWQCs and AALACs is available, use the 

lowest LC50 value to assign the ecosystem toxicity factor value.

• If an LC50 value is also not available, assign an ecosystem toxicity factor value of 

0 to the hazardous substance and use other hazardous substances for which data 

are available in evaluating the pathway.

If an ecosystem toxicity factor value of 0 is assigned to all hazardous substances eligible 

to be evaluated for the watershed (that is, insufficient data are available for evaluating all 

the substances), use a default value of 100 as the ecosystem toxicity factor value for all 

these hazardous substances.

With regard to the AWQC, AALAC, or LC50 selected for assigning the ecosystem 

toxicity factor value to the hazardous substance:
Newtown Creek NPL Listing Support Document September 2010

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• If values for the selected AWQC, AALAC, or LC50 are available for both 

fresh water and marine water for the hazardous substance, use the value 

that corresponds to the type of water body (that is, fresh water or salt water) 

in which the sensitive environments are located to assign the ecosystem 

toxicity factor value to the hazardous substance. 

• If, however, some of the sensitive environments being evaluated are in fresh 

water and some are in salt water, or if any are in brackish water, use the 

value (fresh water or marine) that yields the higher factor value to the 

hazardous substance.

• If a value for the selected AWQC, AALAC, or LC50 is available for either 

fresh water or marine water, but not for both, use the available one to assign 

an ecosystem toxicity factor value to the hazardous substance. [emphasis 

added]

For assigning an ecosystem bioaccumulation potential factor value, HRS Section 4.1.4.2.1.3, 

Ecosystem bioaccumulation potential, for the surface water environmental threat, instructs the 

scorer to:

Assign an ecosystem bioaccumulation potential factor value to each hazardous substance 

in the same manner specified for the bioaccumulation potential factor in section 

4.1.3.2.1.3, except:

• Use BCF data for all aquatic organisms, not just for aquatic human food chain 

organisms.

• Use the BCF data that corresponds to the type of water body (that is, fresh 

water or salt water) in which the sensitive environments (not fisheries) are 

located [emphasis added].

As quoted earlier in this section of this support document, HRS Section 4.1.3.2.1.3 states that 

when using BCF data to assign this value, for brackish water to use the higher of the freshwater 

and saltwater values.

Page 50 of the HRS documentation record at proposal, section 4.1.4.2.1 (environmental threat), presents 

the ecosystem toxicity, persistence, and bioaccumulation potential factor values for each of the hazardous 

substances found in the observed release in the Creek sediments. As instructed in HRS Sections

4.1.4.2.1.1 and 4.1.4.2.1.3, excerpted above, the ecosystem toxicity and bioaccumulation potential values 

are also assigned according to the HRS, and the assigned values in the table are based on whether the 

water body contains fresh, brackish or salt water. The following footnote from the table explains why the 

selected ecosystem toxicity and bioaccumulation potential factor values are used:

NYCDEP has reported salinity measurements ranging from 18.5 to 22.8 parts per 

thousand (ppt) for Newtown Creek in the vicinity of Kosciuszko Bridge, which carries 

the Brooklyn-Queens Expressway, making it brackish water [Figure 1 of this HRS 

documentation record; Ref. 52, p. 112]. The HRS (Section 4.1.4.2.1.1) states that if any 

sensitive environments being evaluated are in brackish water, assign the higher of the 

fresh water and marine water toxicity factor values to each hazardous substance [Ref. 1, 

p. 51621]. Therefore, the higher Ecosystem Toxicity Factor Value for each hazardous 

substance is used for Newtown Creek. Similarly, the HRS (Section 4.1.4.2.1.3) states 
Newtown Creek NPL Listing Support Document September 2010

64

that if any sensitive environments being evaluated are in brackish water, assign the higher 

of the fresh water and salt water bioaccumulation potential factor values to each 

hazardous substance [Ref. 1, pp. 51617, 51622]. Therefore, the higher Ecosystem 

Bioaccumulation Potential Factor Value for each hazardous substance is used for 

Newtown Creek. 

Thus, since Newtown Creek is a brackish water body, the ecosystem toxicity and bioaccumulation 

potential factor values for each substance were assigned the highest of the freshwater and saltwater values 

in accordance with the provisions of HRS Sections 2.4.1.1, 4.1.4.2.1.3, and 4.1.4.2.1.1. The 

bioaccumulation potential factor values used in determining the threat score (the highest of all the 

combined values, see HRS Section 4.1.4.2.1.4) were all selected using BCF data.

This comment has no effect on the HRS score or the decision to place the site on the NPL.

3.17.2 Bioavailability

Comment: ENVIRON questioned whether the hazardous substances in the sediments are bioavailable to 

cause toxicity. Similarly, ELM commented that the chemical processes in the Creek should be considered 

to assess bioavailability. 

ENVIRON asserted that bioavailability could not be adequately assessed based solely on sediment 

contaminant data. ELM commented that the chemical processes in the Creek are essential in determining 

the bioavailability and thus the potential risk or lack thereof to a potentially affected target, and should be 

considered by EPA as part of the NPL listing process. GLA stated that the older sediments are buried by 

new material sequestering the highest contaminant concentrations below the biologically active zone. 

GLA added that the high organic content and very low oxygen conditions in the sediment significantly 

decrease bioavailability of contaminants to aquatic organisms, thereby lowering risk to this population. 

ENVIRON also made the following comments:

USEPA (2003) derived a more complex target lipid model (TLM) to evaluate risks of 

PAHs to aquatic organisms. Because this method is based on the concentration of a 

chemical within an organism, it inherently accounts for sediment ingestion and all other 

possible exposure pathways. . . . In the TLM, the organic carbon-normalized PAH 

concentration in site sediments is divided by the USEPA (2003) calculated organic 

carbon-normalized NOECs for PAHs, and the individual values (i.e., hazard quotients, 

HQs) added together. When the sum of the individual HQs is less than 1, it can be 

concluded that there is no risk to aquatic organisms. Based on the data reported in the 

HRS documentation, the highest sum of TLM NOECs in surface sediments is 0.3 at 

location 35A (see Table 1). Although a value of 13 is found in subsurface sediment at 

location 13B, these samples were collected at 3.5 to 6 feet below the sediment-water 

interface, while organisms are normally considered to be present in the top 6 inches 

below the sediment-water interface. Because the subsurface sediments were collected 

well below the bioactive zone there is no exposure pathway to aquatic organisms and, 

therefore, the concentrations reported for location 13B do not represent a significant risk. 

Response: The HRS does not consider the bioavailability of hazardous substances in an HRS evaluation. 

These comments have no effect on the HRS site score or the decision to place this site on the NPL.
Newtown Creek NPL Listing Support Document September 2010

65

3.18 Targets

HydroQual, ENVIRON, ELM, and a public commenter commented on the human food chain threat 

targets and sensitive environments targets evaluated in the HRS documentation record at proposal. The 

following subsections address specific comments relating to targets scoring in the HRS evaluation:

• 3.18.1 Human Food Chain Fishery

• 3.18.2 Fishery in Mouth of Newtown Creek

• 3.18.3 Scoring of Migratory Fish

• 3.18.4 Resources

• 3.18.5 Sensitive Environment

• 3.18.6 Potential Environmental Targets

3.18.1 Human Food Chain Fishery

Comment: HydroQual asserted that although it considered the final HRS target value appropriate, the 

protectiveness of the New York State health advisory is not a part of the evaluation of the fishery.

Response: The human food chain threat of the Newtown Creek fishery was properly established 

according to the HRS. Specifically, HRS Section 4.1.3.3 states:

Evaluate two target factors for each watershed: food chain individual and population. For 

both factors, determine whether the target fisheries are subject to actual or potential 

human food chain contamination. 

Consider a fishery (or portion of a fishery) within the target distance limit of the 

watershed to be subject to actual human food chain contamination if any of the following 

apply:

• A hazardous substance having a bioaccumulation potential factor value of 500 or 

greater is present either in an observed release by direct observation to the watershed 

or in a surface water or sediment sample from the watershed at a level that meets the 

criteria for an observed release to the watershed from the site, and at least a portion of 

the fishery is within the boundaries of the observed release (that is, it is located either 

at the point of direct observation or at or between the probable point of entry and the 

most distant sampling point establishing the observed release).

Page 46 of the HRS documentation record at proposal under the title, Human Food Chain Threat –

Targets, documents that this requirement was met, stating: 

Blue-claw crabs, bluefish, weakfish, striped bass, and other species inhabit the creek, and 

fishing and crabbing for human consumption occurs [Ref. 7, pp. 2, 5; 8, p. 11; 21, p. 13; 

22, pp. 1-2; 24, p. 143; 52, p. 93; 68, p. 3; 69, p. 1]. Subsistence fishing has been 

observed in Newtown Creek at Dutch Kills, and crabbing for consumption has been 

observed at the end of Manhattan Avenue in Brooklyn [Ref. 7, p. 5; 21, p. 13; 22, pp. 1-2; 

68, p. 3; 69, p. 1]. These locations are both within the zone of contamination for the 

Newtown Creek site [Figure 2 of this HRS documentation record]. Therefore, Actual 

Contamination is documented, and the target fishery is evaluated for Actual Human Food 

Chain Contamination. There are no media-specific benchmarks for sediment, so the 
Newtown Creek NPL Listing Support Document September 2010

66

target fishery is subject to Level II concentrations [Ref. 1, pp. 51592-51593, 51620-

51621].

This page of the HRS documentation record at proposal goes on to list 31 hazardous substances that meet 

the observed release criteria and have a bioaccumulation potential factor value of 500 or greater, any of 

which would have been sufficient to establish actual contamination within the fishery. In addition, the act 

of fishing for human consumption was documented within the area encompassed by the samples 

containing these substances, thereby establishing the threat to the fishery in accordance with HRS Section 

4.1.3.3. Thus, the site-specific information used in obtaining the HRS score for the human food chain 

threat of the surface water migration pathway, and for the overall site score, is consistent with the 

requirements of the HRS. 

Regarding HydroQual’s assertion that the “protectiveness” of the New York state health advisory is not 

included in the fishery evaluation, there is no provision in the HRS to consider the possible reduction in 

risk that might be caused by a fish advisory in an HRS evaluation.

Within the HRS sections directing the scoring of the human food chain threat (Sections 4.1.3.1, 4.1.3.2, 

and 4.1.3.3), there is only one provision for considering any kind of fish advisory, and it is for a closure of 

a fishery (i.e., ban on any consumption), not simply an advisory to limit consumption. This is in HRS 

Section 4.1.3.3, which states, in part:

Consider a fishery (or portion of a fishery) within the target distance limit of the 

watershed to be subject to actual human food chain contamination if any of the following 

apply:

. . .

The fishery is closed, and a hazardous substance for which the fishery has been closed 

has been documented in an observed release to the watershed from the site, and at least a 

portion of the fishery is within the boundaries of the observed release.

Under this provision, if a fish closure advisory has been issued which states that a specified area is closed 

to fishing (i.e., that no fishing for consumption is to take place there) and the other conditions stated 

above apply, the fishery is scored as if it were an active fishery that was contaminated due to the site (i.e., 

subject to actual contamination). Thus, the fish closure advisory acts to include the fishery in the HRS 

score, not to exclude it.

Additionally, section 3.11, Challenge to HRS, of this support document, details that the site-specific risk 

assessment will be performed as part of the Superfund process that occurs in a separate stage of the 

Superfund process. At that time, the information regarding site-specific risk will be considered. 

This comment has no effect on the HRS site score or the decision to place the site on the NPL.

3.18.2 Fishery in Mouth of Newtown Creek

Comment: ENVIRON asserted that potential access points for subsistence fishing are located upstream 

from the lower portions of the Creek and that “[s]ince PCBs were not detected in surface sediments, there 

is no Human Food Chain Threat associated with surficial sediments sampled near the mouth of Newtown 

Creek.”
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67

Response: The HRS evaluation of the human food chain threat, including the presence of at least a part of 

a human food chain fishery as actually contaminated, does not depend on the presence of a fishery 

associated with sediments in the mouth of Newtown Creek.

As detailed in section 3.18.1, Human Food Chain Fishery, of this support document, consistent with HRS 

Section 4.1.3.3, site-specific information was used in establishing that there is at least part of a human 

food chain fishery that is considered to be actually contaminated in Newtown Creek. HRS Section 4.1.3.3 

in part states to score a fishery as present at a site as follows:

Consider a fishery (or portion of a fishery) within the target distance limit of the 

watershed to be subject to actual human food chain contamination if any of the following 

apply:

• A hazardous substance having a bioaccumulation potential factor value of 500 or 

greater is present either in an observed release by direct observation to the watershed 

or in a surface water or sediment sample from the watershed at a level that meets the 

criteria for an observed release to the watershed from the site, and at least a portion of 

the fishery is within the boundaries of the observed release (that is, it is located either 

at the point of direct observation or at or between the probable point of entry and the 

most distant sampling point establishing the observed release).

. . .

The HRS does not require that the fishery be documented coextensive with the zone of contamination at 

the site.

Section 4.1.3.3, Human Food Chain Threat – Targets, of the HRS documentation record at proposal 

states:

Subsistence fishing has been observed in Newtown Creek at Dutch Kills, and crabbing 

for consumption has been observed at the end of Manhattan Avenue in Brooklyn [Ref. 7, 

p. 5; 21, p. 13; 22, pp. 1-2; 68, p. 3; 69, p. 1]. These locations are both within the zone of 

contamination for the Newtown Creek site [Figure 2 of this HRS documentation record]. 

Therefore, Actual Contamination is documented, and the target fishery is evaluated for 

Actual Human Food Chain Contamination. There are no media-specific benchmarks for 

sediment, so the target fishery is subject to Level II concentrations [Ref. 1, pp. 51592-

51593, 51620-51621].

As discussed in section 3.16.8, Contamination in Mouth of Creek, of this support document, 

contamination from the mouth to the rest of the Creek is contiguous, meaning that the boundary of the 

observed release is documented as extending from the mouth to the upper reaches of the Creek. 

Subsistence fishing at a particular portion of the Creek within the boundary of the observed release (i.e., 

the zone of contamination) was documented as cited above. As stated in HRS Section 4.1.3.3, the 

boundary of the observed release extends from the probable point of entry to the most distant sampling 

point establishing an observed release. As discussed in section 3.13 and 3.16 of this support document,

the entire contaminated sediment source was defined by those samples that meet the observed release 

criteria, including several samples in the mouth of the Creek. 

Regarding the statement that PCBs were not found in surface sediments in the mouth of the Creek, as 

stated above, the presence of an actually contaminated fishery for this site is based on HRS Section 

4.1.3.3, which directs the scorer to establish an actually contaminated fishery if:
Newtown Creek NPL Listing Support Document September 2010

68

A hazardous substance having a bioaccumulation potential factor value of 500 or greater 

is present either in an observed release by direct observation to the watershed or in a 

surface water or sediment sample from the watershed at a level that meets the criteria for 

an observed release to the watershed from the site . . .

Thus, in evaluating whether a fishery is subject to actual contamination, there is no restriction that the 

observed release be established in surface sediments. In addition, the presence of an actually 

contaminated fishery at this site is established not only by the presence of PCB contamination. Observed 

releases of several other hazardous substances with bioaccumulation potential factor values of 500 or 

greater, were used for this purpose; including benzo(a)anthracene, benzo(a)pyrene, pyrene, and other 

substances used to assign the human food chain threat score (see pages 50 and 51 of the HRS 

documentation record at proposal), all of which were also found in observed release samples from the 

mouth of the Creek (see section 3.16.8, Contamination in Mouth of Creek, of this support document). 

Therefore, the absence of PCB contamination in surface samples in the mouth of the Creek did not limit 

the identification of an actually contaminated fishery.

This comment has no effect on the HRS site score or the decision to place the site on the NPL.

3.18.3 Scoring of Migratory Fish

Comment: ELM asserted that EPA disregarded the findings of fish population studies in the Upper New 

York Bay that “conclude that the fish population is composed primarily of migratory fish, which likely do 

not spend a significant portion of their lives in the Creek.”

Response: In accordance with the provisions of the HRS, the migration characteristics of various fish 

within the scored fishery were not considered in the HRS evaluation of the fishery as a Level II fishery.

HRS Section 4.1.3.3, Human food chain threat-targets, is the only section within the HRS that refers to 

the length of time an organism spends within a Level I or Level II fishery. This section discusses the 

methodology for determining the level of actual contamination from samples, including tissue samples 

from essentially sessile, benthic organisms, as well as other specified aquatic organisms that meet the 

criteria for actual food chain contamination. When using tissue samples to determine if a fishery is Level 

I or Level II, this HRS section states in relevant part:

Use only those additional tissue samples and only those hazardous substances in the 

tissue samples that meet all the following criteria:

....

The tissue sample is from a species of aquatic human food chain organism that spends 

extended periods of time within the boundaries of the actual food chain contamination for 

the site and that is not an essentially sessile, benthic organism.

On page 46, the HRS documentation record at proposal identifies the fishery in the Creek as a Level II 

fishery, stating:

Blue-claw crabs, bluefish, weakfish, striped bass, and other species inhabit the creek, and 

fishing and crabbing for human consumption occurs [Ref. 7, pp. 2, 5; 8, p. 11; 21, p. 13; 

22, pp. 1-2; 24, p. 143; 52, p. 93; 68, p. 3; 69, p. 1]. Subsistence fishing has been 

observed in Newtown Creek at Dutch Kills, and crabbing for consumption has been 
Newtown Creek NPL Listing Support Document September 2010

69

observed at the end of Manhattan Avenue in Brooklyn [Ref. 7, p. 5; 21, p. 13; 22, pp. 1-2; 

68, p. 3; 69, p. 1]. These locations are both within the zone of contamination for the 

Newtown Creek site [Figure 2 of this HRS documentation record]. Therefore, Actual 

Contamination is documented, and the target fishery is evaluated for Actual Human Food 

Chain Contamination. There are no media-specific benchmarks for sediment, so the 

target fishery is subject to Level II concentrations [Ref. 1, pp. 51592-51593, 51620-

51621]. 

As discussed in section 3.18.1, Human Food Chain Fishery, of this support document, the above section 

of the HRS documentation record at proposal goes on to present documentation of the Level II 

contamination in the fishery, using sediment samples containing hazardous substances with a 

bioaccumulation potential factor value of 500 or more throughout the contaminated sediment source and 

the Creek. 

Thus, as sediment samples were used in the determination of the level of actual contamination for the 

scored Level II fishery, and not tissue samples, the migratory nature of the fish within the fishery was not 

a point of consideration in the scoring of the human food chain fishery.

This comment has no effect on the site score or the decision to place the site on the NPL. 

3.18.4 Resources

Comment: Tom Brooklyn, in support of the listing, commented on how the contamination in the Creek 

“is also adversely affecting the recreational quality of waters not only in the immediate area, but all over 

NYC waters . . .” 

Response: The HRS considers recreational use in a site evaluation when scoring the resources factor, 

however this factor was not included in the HRS evaluation (See HRS Section 4.1.2.3.3, Resources).

This comment has no effect on the site score or the decision to place the site on the NPL. 

3.18.5 Sensitive Environment

Comment: HydroQual expressed that “[g]iven that the Newtown Creek is designated by the State of New 

York as a Class SD water body suitable for fish survival, a Sensitive Environments Rated Factor of 5 for 

‘state designated areas for protection or maintenance of aquatic life’ is more appropriate for Newtown 

Creek, than the 100 EPA assigned.” HydroQual suggested that a site-specific, rather than a Harbor-wide, 

sensitive environments factor is more appropriate for Newtown Creek. According to HydroQual, the 

Newtown Creek 2007 Waterbody/Watershed Facility Plan concludes the following:

• There are no outstanding national resource waters, national marine sanctuaries, public drinking 

water intakes or their designated protection areas, or shellfish beds within the Newtown Creek 

waterbody or the East River.

• The Newtown Creek, its tributaries and branches, are not designated by the State of New York for 

recreational uses. There are no primary contact recreation waters such as bathing beaches in the 

waterbody.

GLA commented that it is unrealistic to evaluate Newtown Creek as a sensitive environment that has a 

potential to be restored to pre-development conditions. It added that the conditions of the Creek, a 

stagnant system within which freshwater tributaries have been eliminated, will undoubtedly remain for 

the foreseeable future.
Newtown Creek NPL Listing Support Document September 2010

70

Response: The sensitive environment value of a Level II sensitive environment for sensitive areas 

identified under the National Estuary Program has been appropriately assigned in accordance with the 

HRS. HRS Section 4.1.4.3.1, Sensitive environments, instructs the scorer to:

Evaluate sensitive environments along the hazardous substance migration path for the 

watershed based on three factors: Level I concentrations, Level II concentrations, and 

potential contamination.

HRS Section 4.1.1.2, Target distance limit, directs that for sites consisting solely of contaminated 

sediments with no identified source, the target distance limit is defined as follows:

If there is no clearly defined direction of flow, begin measuring the target distance limit 

at the center of the area of observed sediment contamination. Extend the target distance 

limit as an arc either for 15 miles along the surface water or to the most distant sample 

point that meets the criteria for an observed release to that watershed, whichever is 

greater. Determine the area of observed sediment contamination based on available 

samples that meet the criteria for an observed release. [emphasis added]

HRS Section 4.1.4.3.1.2, Level II concentrations, states “[a]ssign value(s) from Table 4–23 to each 

sensitive environment subject to Level II concentrations. Do not include sensitive environments already 

counted for Table 4–23 under the Level I concentrations factor for this watershed.”

HRS Table 4-23, Sensitive Environments Rating Values, contains the following listed sensitive 

environment and notes that it receives an assigned value of 100: “Sensitive areas identified under 

National Estuary Program or Near Coastal Waters Program.”

Page 37 of the HRS documentation record at proposal documents that:

Newtown Creek is a tidal arm of the New York-New Jersey Harbor Estuary that forms 

the northwestern-most border between the New York City boroughs of Brooklyn and 

Queens [Figures 1 and 2 of this HRS documentation record; Ref. 4, p. 1; 6, p. 1; 7, p. 3; 

8, pp. 9-10; 9, p. 3; 10, pp. 6-7]. It is tributary to the East River and includes five 

branches along its 3.5- to 4.3-mile reach: (from east to west) English Kills, East Branch, 

Maspeth Creek, Whale Creek, and Dutch Kills [Ref. 4, p. 1; 6, p. 1; 7, p. 5; 8, p. 10; 9, p. 

3; 11, p. 11; 12, pp. 52-53].

Page 53 of the HRS documentation record at proposal states :

Newtown Creek is part of the New York-New Jersey Harbor Estuary, which is a sensitive 

area identified under the National Estuary Program [Ref. 10, pp. 1-10]. Therefore, Actual 

Contamination is documented, and the target sensitive environment is evaluated for 

Actual Contamination. There are no media-specific benchmarks for sediment, so the 

target sensitive environment is subject to Level II concentrations [Ref. 1, pp. 51592-

51593, 51624-51625].

Reference 10 of the HRS documentation record at proposal, the official EPA Web site for the National 

Estuary Program, clearly identifies the New York-New Jersey Harbor Estuary as part of the National 

Estuary Program. The Web site also describes the East River as part of the core area of the New YorkNew Jersey Harbor Estuary, and in its description of that Estuary specifically states that it includes “the 
Newtown Creek NPL Listing Support Document September 2010

71

tidally influenced portions of all rivers and streams that empty into the [New York] Harbor.” Thus, 

because Newtown Creek empties into the East River, it is clearly part of the designated area.

Regarding HydroQual’s comment that, since the Creek is designated by the State as a Class SD water 

body suitable for fish survival, it would qualify as a 'state designated area for protection or maintenance 

of aquatic life,' while this would warrant an additional sensitive environment assigned value of 5 as 

directed by Table 4-23 of the HRS, this does not negate or preclude the National Estuary Program 

designation or the corresponding assigned value of 100. 

In reference to GLA's comment regarding the potential to restore Newtown Creek to pre-development 

conditions, this is a consideration that is typically addressed during the remediation stages and as such, is 

not part of the HRS scoring or NPL listing process.

This comment has no effect on the HRS score or the decision to place the site on the NPL.

3.18.6 Potential Environmental Targets

Comment: HydroQual stated that EPA’s HRS training materials indicate that potential contamination is 

established if no portion of the sensitive environment falls within an area that meets the criteria for an 

observed release. It added that the waters of the NY/NJ Harbor Estuary cannot be established as subject 

to potential contamination for a sensitive environment because the Estuary already meets the criteria for 

an observed release since “there are a number of Superfund sites within the NY/ NJ Harbor Estuary.”

Response: EPA did not score a sensitive environment subject to potential contamination within the 

environmental threat for the surface water migration pathway at this site. The New York-New Jersey 

Harbor Estuary was evaluated as a sensitive environment subject to actual Level II contamination.

However, despite the existence of contaminants originating at other nearby Superfund sites, a sensitive 

environment subject to potential contamination could have been scored at this site if the sensitive 

environment was not subject to actual Level I or Level II contamination. 

HRS Section 4.1.1.2, Target distance limit, directs the user to create a target distance limit (TDL):

The target distance limit defines the maximum distance over which targets are considered 

in evaluating the site. Determine a separate target distance limit for each watershed as 

follows:

• If there is no observed release to surface water in the watershed or if there is an 

observed release only by direct observation (see section 4.1.2.1.1), begin 

measuring the target distance limit for the watershed at the probable point of 

entry to surface water and extend it for 15 miles along the surface water from that 

point.

• If there is an observed release from the site to the surface water in the watershed 

that is based on sampling, begin measuring the target distance limit for the 

watershed at the probable point of entry; extend the target distance limit either 

for 15 miles along the surface water or to the most distant sample point that 

meets the criteria for an observed release to that watershed, whichever is greater.

. . . 
Newtown Creek NPL Listing Support Document September 2010

72

For sites consisting solely of contaminated sediments with no identified source, 

determine the target distance limit as follows:

. . . 

If there is no clearly defined direction of flow, begin measuring the target distance limit 

at the center of the area of observed sediment contamination. Extend the target distance 

limit as an arc either for 15 miles along the surface water or to the most distant sample 

point that meets the criteria for an observed release to that watershed, whichever is 

greater. Determine the area of observed sediment contamination based on available 

samples that meet the criteria for an observed release.

This same section then describes the evaluation of targets:

For these contaminated sediment sites, include only those targets (for example, intakes, 

fisheries, sensitive environments) that are within or contiguous to the hazardous 

substance migration path and located, wholly or partially, within the target distance limit 

for the site. Determine whether these targets are subject to actual or potential 

contamination as follows:

• If a target is located, partially or wholly, within the area of observed sediment 

contamination, evaluate it as subject to actual contamination, except as otherwise 

specified for fisheries in section 4.1.3.3 and wetlands in section 4.1.4.3.1.1.

- If a drinking water target is subject to actual contamination, evaluate it 

using Level II concentrations. If a human food chain target or 

environmental target is subject to actual contamination, evaluate it using 

Level I or Level II concentrations, as appropriate (see sections 4.1.3.3 

and 4.1.4.3.1).

• If a target is located, partially or wholly, within the target distance limit for the 

watershed, but not within the area of observed sediment contamination, evaluate 

it as subject to potential contamination.

HRS Section 4.1.4.3.1, Sensitive environments, directs the scorer to:

[e]valuate sensitive environments along the hazardous substance migration path for the 

watershed based on three factors: Level I concentrations, Level II concentrations, and 

potential contamination.

Determine which factor applies to each sensitive environment as specified in section 

4.1.2.3, except: use ecological-based benchmarks (Table 4–22) rather than health-based 

benchmarks (Table 3–10) in determining the level of contamination from samples. In 

determining the level of actual contamination, use a point of direct observation anywhere 

within the sensitive environment or samples (that is, surface water, benthic, or sediment 

samples) taken anywhere within or beyond the sensitive environment (or anywhere 

adjacent to or beyond the sensitive environment if it is contiguous to the migration path).

HRS Section 4.1.2.3, Drinking water threat targets, states:

. . . If the actual contamination is based on an observed release by direct observation, use 

Level II concentrations for that intake. However, if the actual contamination is based on 
Newtown Creek NPL Listing Support Document September 2010

73

an observed release from samples, determine which level applies for the intake by 

comparing the exposure concentrations from samples (or comparable samples) to healthbased benchmarks as specified in sections 2.5.1 and 2.5.2. Use the health-based 

benchmarks from table 3–10 (section 3.3.1) in determining the level of contamination 

from samples. For contaminated sediments with no identified source, evaluate the actual 

contamination using Level II concentrations.

HRS Section 4.1.4.3.1.1, Level I concentrations, then instructs the scorer to “[a]ssign value(s) from Table 

4–23 to each sensitive environment subject to Level I concentrations.” HRS Section 4.1.4.3.1.2, Level II 

concentrations, instructs the scorer to “[a]ssign value(s) from Table 4–23 to each sensitive environment 

subject to Level II concentrations. Do not include sensitive environments already counted for Table 4–23 

under the Level I concentrations factor for this watershed.” HRS Section 4.1.4.3.1.3, Potential 

contamination, directs the scorer to “[a]ssign value(s) from Table 4–23 to each sensitive environment 

subject to potential contamination. Do not include sensitive environments already counted for Table 4–23 

under the Level I or Level II concentrations factors.”

The HRS has no requirement to consider whether a sensitive environment is subject to contamination 

from a Superfund site other than the site being evaluated. The HRS scores a sensitive environment based 

on the highest level of contamination to which the sensitive environment is subject. Had the New YorkNew Jersey Harbor Estuary not already been subject to Level II contamination attributed to the Newtown 

Creek site, the Estuary’s partial presence within the TDL would have made it eligible for evaluation as a 

sensitive environment subject to potential contamination from the site.

If EPA were to exclude a target from evaluation for one site based on the fact that it was also subject to 

contamination migrating from a second site, this would amount to neglect of the actual or potential 

contaminant exposure the target may receive from the first site.

This comment has no effect on the HRS site score or the decision to place the site on the NPL.

3.19 HRS Site Rescoring

Comment: HydroQual argued that a site score of less than 28.50 could be established on the basis of 

sensitive environment and hazardous waste quantity factor considerations only. 

Regarding assertions related to the rescoring presented in Table 1 of HydroQual’s comments, it argued

that using all of the other factors assigned by EPA with the exception of the site-specific sensitive area 

factor and hazardous waste quantity factor, the HRS could be as low as 16.7, as compared with the site 

score of 50 as presented in the HRS documentation record at proposal.

Response: As established in sections 3.15, 3.16, and 3.17 of this support document, the HRS score and 

supporting factors of the likelihood of release, waste characteristics, and targets factors were properly 

considered according to the HRS. Therefore, rescoring them with the commenter’s suggested values is 

not appropriate.

This comment has no effect on the HRS site score or the decision to place the site on the NPL.
Newtown Creek NPL Listing Support Document September 2010

74

4. Conclusion

The original HRS score of this site was 50.00. Based on the above response to comments, the score 

remains unchanged. The final scores for the Newtown Creek site are:

Ground Water Not Scored

Surface Water 100.00

Soil Exposure Not Scored

Air Not Scored

HRS Site Score 50.00
Attachment 1
 

Alternate Evaluation Tables 
Table A

Alternate Evaluation Background Concentrations

Surface Samples (0'-2') - February 2009

Newtown Creek, Brooklyn/Queens, NY

Background Concentrations 

SAT2 Sample No. NC-SD107A NC-SD108A NC-SD109A NC-SD110A NC-SD111A NC-SD112A Maximum 

Backgroun

EPA Sample No. (M)B5E77 (M)B5E79 (M)B5E81 (M)B5E83 (M)B5E85 (M)B5E87 

Date: 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments 

Reference(s) 23, p. 26; 24, p. 

76; 25, pp. 67, 72 

23, p. 26; 24, p. 

75; 25, pp. 67, 

24, p. 78; 25, pp. 

67, 72 

23, p. 26; 24, p. 

77; 25, pp. 67, 

23, p. 27; 24, p. 

80; 25, pp. 67, 

23, p. 27; 24, p. 

79; 25, pp. 67, 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 12.3 J 3.2 12.3 J 

Cadmium 1.6 UJ 1.6 1.5 UJ 1.5 1.5 UJ 1.5 1.6 UJ 1.6 1.6 UJ 1.6 1.6 UJ 1.6 1.6 U

Chromium 71.9 J 3.1 68.4 J 3.0 67 J 3.1 75 J 3.2 67.6 J 3.3 67.8 J 3.2 75 J 

Copper 98.4 J 8.0 98.4 J Lead 112 J 3.1 103 J 3.0 104 J 3.1 110 J 3.2 102 J 3.3 112 J 

Nickel 27.9 J 12.4 28.8 J 12.1 26 J 12.3 29.8 J 12.6 28.4 J 13.1 28.8 J 12.8 29.8 J 

Silver 2.4 J 3.2 2.4 J Zinc 217 J 18.6 216 J 18.1 205 J 18.5 231 J 18.9 210 J 19.7 217 J 19.2 231 J 

Reference(s) 29, pp. 46, 60-63, 

92-93 

29, pp. 47, 60-

63, 93 

29, pp. 48, 60-

63, 93-94 

29, pp. 49, 60-

63, 94 

29, pp. 50, 60-

63, 94-95 

29, pp. 23, 60-

62, 79 

VOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL

 Chlorobenzene 25 UJ 25 24 U 24 22 U 22 24 U 24 25 U 25 24 U 24 25 U

 Isopropylbenzene 25 UJ 25 24 U 24 22 U 22 24 U 24 25 U 25 24 U 24 25 U 

Reference(s) 35, pp. 17, 22, 95, 

208-209 

35, pp. 17, 96, 

210-211 

35, pp. 17, 97, 

211-212 

35, pp. 17, 98, 

213-214 

35, pp. 17, 99, 

214-215 

35, pp. 17, 100, 

216-217 

SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL

 Acenaphthene 520 U 520 550 U 550 550 U 550 560 U 560 540 U 540 560 U  Fluorene 520 U 520 550 U 550 550 U 550 560 U 560 540 U 540 560 U  Phenanthrene 25 J 520 24 J 550 19 J 550 20 J 560 23 J 540 560 U 

 Anthracene 520 U 520 550 U 550 550 U 550 560 U 560 540 U 540 560 U  Fluoranthene 42 J 520 41 J 550 35 J 550 43 J 560 46 J 540 560 U 

 Pyrene 49 J 520 45 J 550 34 J 550 44 J 560 48 J 540 560 U 

 Butylbenzylphthalate 520 U 520 550 U 550 550 U 550 560 U 560 540 U 540 560 U  Benzo(a)anthracene 33 J 520 30 J 550 27 J 550 30 J 560 35 J 540 560 U 

 Chrysene 36 J 520 32 J 550 27 J 550 28 J 560 31 J 540 560 U 

 Bis(2-ethylhexyl)phthalate 520 U 520 550 U 550 550 U 550 560 U 560 540 U 540 560 U 

 Benzo(b)fluoranthene 36 J 520 35 J 550 32 J 550 35 J 560 42 J 540 560 U 

 Benzo(a)pyrene 36 J 520 31 J 550 29 J 550 29 J 560 34 J 540 560 U 

 Indeno(1,2,3-cd)pyrene 29 J 520 28 J 550 27 J 550 27 J 560 27 J 540 560 U 

 Benzo(g,h,i)perylene 31 J 520 27 J 550 24 J 550 24 J 560 28 J 540 560 U 

Reference(s) 35, pp. 23-25, 

116-117, 234-

35, pp. 23-25, 

118-119, 236-

35, pp. 23-25, 

120-121, 238-

35, pp. 23-25, 

122-123, 240-

35, pp. 23-25, 

124-125, 242-

PCBs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL

 Aroclor-1242 110 UJ 110 100 U 100 110 U 110 110 U 110 110 U 110 110 U 110 110 U Aroclor-1254 110 UJ 110 100 U 100 110 U 110 110 U 110 110 U 110 110 U 110 110 U Reference(s) 35, pp. 29-32, 

140, 248 

35, pp. 29, 141, 

248 

35, pp. 29, 142, 

248 

35, pp. 29, 143, 

249 

35, pp. 29, 144, 

249 

35, pp. 29, 145, 

249 

CRQL - Contract required quantitation limit U - not detected SQL - Sample quantitation limit J - qualified data mg/kg - milligrams per kilogram ug/kg - micrograms per kilogram 
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

Observed Release Concentrations 

SAT2 Sample No. Background Level NC-SD01A NC-SD03A NC-SD21A NC-SD22A NC-SD23A 

EPA Sample No. (M)B5DJ5 (M)B5DJ9 (M)B5DN5 (M)B5DN7 (M)B5DN9 

Date: 2/11/2009 2/11/2009 2/25/2009 2/25/2009 2/25/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 

Comments MS/MSD MS/MSD 

Reference(s) 23, pp. 8-9; 24, p. 2; 25, 

pp. 25-26 

23, p. 9; 24, p. 3; 25, 

pp. 25-26 

23, p. 19; 24, p. 23; 25, 

pp. 40, 47 

23, p. 18; 24, p. 22; 25, 

pp. 40, 49 

23, p. 19; 24, p. 26; 25

pp. 40, 47 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL 

Arsenic 12.3 

Cadmium 1.6 U 3.5 1.3 6.1 1.4 3.5 1.5 

Chromium 75 

Copper 129.3 J 

Lead 149.8 J 

Nickel 29.8 

Silver 4.5 J 

Zinc 231 

Reference(s) 28, pp. 10, 55-57, 63 28, pp. 11, 55-57, 66 28, pp. 12, 55-57, 66 

VOCs (ug/kg, dry weight) Chlorobenzene 25 U Isopropylbenzene 25 U Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL

 Acenaphthene 560 U Fluorene 560 U Phenanthrene 560 U 600 440 1,200 420 Anthracene 560 U 780 440

 Fluoranthene 560 U 1,100 440 1,300 420 1,300 480

 Pyrene 560 U 1,400 480

 Butylbenzylphthalate 560 U 670 480 Benzo(a)anthracene 560 U 730 440 630 420 820 480

 Chrysene 560 U 680 440 650 420 740 480

 Bis(2-ethylhexyl)phthalate 560 U 640 440 4,200 480 Benzo(b)fluoranthene 560 U 710 440 760 420 1,100 480

 Benzo(a)pyrene 560 U 690 440 630 420 820 480

 Indeno(1,2,3-cd)pyrene 560 U 670 480 Benzo(g,h,i)perylene 560 U 710 480 Reference(s) 30, pp. 25-26, 61 30, pp. 33-34, 68-69 33, pp. 90-91, 265 

PCBs (ug/kg, dry weight) Aroclor-1242 110 U Aroclor-1254 110 U Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD25A NC-SD26A NC-SD27A NC-SD28A NC-SD29A NC-SD30A 

EPA Sample No. (M)B5DP3 (M)B5DP5 (M)B5DP7 (M)B5DP9 (M)B5DQ1 (M)B5DQ3 

Date: 2/25/2009 2/25/2009 2/25/2009 2/25/2009 2/25/2009 2/25/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments 

Reference(s) 23, p. 19; 24, p. 28; 25, 

pp. 41, 47 

23, p. 19; 24, p. 29; 25, 

pp. 41, 47 

23, p. 19; 24, p. 30; 25, 

pp. 41, 47 

23, p. 19; 24, p. 31; 25, 

pp. 41, 48 

23, p. 19; 24, p. 33; 25, 

pp. 41, 48 

23, p. 19; 24, p. 32; 25

pp. 41, 48 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 36.8 1.3 2.0 0.9416196 4.2 1.4 5.0 1.4 4.1 1.5 6.2 1.4 

Chromium 395 2.6 Copper 1,280 6.6 

Lead 

Nickel 348 10.5 

Silver 

Zinc 2,170 15.8 

Reference(s) 28, pp. 14, 55-57, 68 28, pp. 15, 55-57, 68 28, pp. 16, 55-57, 69 28, pp. 17, 55-57, 69-70 28, pp. 18, 55-57, 70 28, pp. 19, 55-57, 71 

VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL 

Acenaphthene Fluorene Phenanthrene Anthracene Fluoranthene 640 460 Pyrene 720 460 Butylbenzylphthalate Benzo(a)anthracene Chrysene Bis(2-ethylhexyl)phthalate 3,400 460 1,100 460 

Benzo(b)fluoranthene Benzo(a)pyrene Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) 33, pp. 96, 271 33, pp. 19, 193 

PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD32A NC-SD33A NC-SD34A NC-SD35A NC-SD36A NC-SD37A 

EPA Sample No. (M)B5DQ7 (M)B5DQ9 (M)B5DR1 (M)B5DR3 (M)B5DR5 (M)B5DR7 

Date: 2/25/2009 2/25/2009 2/25/2009 2/25/2009 2/25/2009 2/25/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments 

Reference(s) 23, p. 19; 24, p. 35; 25, 

pp. 41, 48 

23, p. 19; 24, p. 36; 25, 

pp. 41, 48 

23, p. 19; 24, p. 37; 25, 

pp. 41, 48 

23, p. 19; 24, p. 39; 25, 

pp. 41, 50 

23, p. 19; 24, p. 38; 25, 

pp. 43, 48 

23, p. 19; 24, p. 40; 25

pp. 43, 50 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 5.8 1.6 5.4 1.6 5.2 1.6 17.0 1.6 8.2 1.8 

Chromium Copper 520 3.5 1,010 8.0 667 9.1 

Lead 

Nickel 140 5.6 173 12.9 

Silver 

Zinc Reference(s) 28, pp. 21, 55-57, 72 28, pp. 22, 55-57, 73 28, pp. 36, 55-57, 74 28, pp. 37, 55-57, 74-75 28, pp. 38, 55-57, 75 28, pp. 39, 55-57, 76 VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL 

Acenaphthene Fluorene Phenanthrene 980 300 Anthracene 820 300 Fluoranthene 3,200 300 Pyrene 2,900 300 Butylbenzylphthalate Benzo(a)anthracene 1,800 300 Chrysene 1,600 300 Bis(2-ethylhexyl)phthalate 950 550 

Benzo(b)fluoranthene 1,100 300 Benzo(a)pyrene 1,000 300 Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) 33, pp. 102-103, 276-

277 

33, pp. 33, 206 

PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD39A NC-SD40A NC-SD41A NC-SD42A NC-SD43A NC-SD44A 

EPA Sample No. (M)B5DS1 (M)B5DS3 (M)B5DS5 (M)B5DS7 (M)B5DS9 (M)B5DT1 

Date: 2/26/2009 2/26/2009 2/26/2009 2/26/2009 2/26/2009 2/26/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments MS/MSD 

Reference(s) 23, p. 21; 24, p. 42; 25, 

pp. 55, 64 

23, p. 21; 24, p. 43; 25, 

pp. 55, 64 

23, p. 21; 24, p. 44; 25, 

pp. 55, 64 

23, p. 21; 24, p. 45; 25, 

pp. 55, 64 

23, p. 21; 24, p. 46; 25, 

pp. 55, 64 

23, p. 21; 24, p. 47; 25

pp. 55, 64 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 8.3 1.6 32.3 1.7 7.5 1.6 5.4 1.9 6.5 1.6 7.0 1.7 

Chromium 375 3.4 Copper 753 8.1 2,160 8.4 769 7.8 643 9.4 802 7.9 1,060 8.5 

Lead 

Nickel 290 13.5 

Silver 

Zinc 2,140 20.2 

Reference(s) 29, pp. 3, 60-62, 64 29, pp. 4, 60-62, 64-65 29, pp. 5, 60-62, 65 29, pp. 6, 60-62, 68 29, pp. 7, 60-62, 68 29, pp. 8, 60-62, 69 

VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) 

Acenaphthene Fluorene Phenanthrene 

Anthracene Fluoranthene Pyrene 

Butylbenzylphthalate Benzo(a)anthracene Chrysene Bis(2-ethylhexyl)phthalate Benzo(b)fluoranthene Benzo(a)pyrene Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD46A NC-SD47A NC-SD48A NC-SD49A NC-SD50A NC-SD51A 

EPA Sample No. (M)B5DT5 (M)B5DT7 (M)B5DT9 (M)B5DW1 (M)B5DW3 (M)B5DW5 

Date: 2/26/2009 2/26/2009 2/26/2009 2/26/2009 2/26/2009 2/26/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments 

Reference(s) 23, p. 21; 24, p. 49; 25, 

pp. 56, 64 

23, p. 21; 24, p. 50; 25, 

pp. 56, 64 

23, p. 21; 24, p. 51; 25, 

pp. 56, 64 

23, p. 22; 24, p. 53; 25, 

pp. 57, 64 

23, p. 22; 24, p. 52; 25, 

pp. 56, 65 

23, p. 22; 24, p. 55; 25

pp. 57, 65 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Arsenic 197 3.9 

Cadmium 11.8 1.6 13.5 1.4 13.2 1.5 14.9 1.6 8.2 1.2 94.6 1.9 

Chromium 848 3.9 Copper 1,670 8.1 1,730 7.2 1,850 7.6 1,840 7.9 1,360 5.8 11,000 9.7 

Lead 

Nickel 184 11.6 197 12.2 181 12.6 1,420 15.5 

Silver 

Zinc 6,530 23.3 

Reference(s) 29, pp. 10, 60-62, 70 29, pp. 11, 60-62, 71 29, pp. 12, 60-62, 72 29, pp. 13, 60-62, 72 29, pp. 14, 60-62, 73 29, pp. 15, 60-62, 73-7

VOCs (ug/kg, dry weight) Result SQL 

Chlorobenzene 69 J 31 Isopropylbenzene Reference(s) 34, pp. 40-41, 150, 204

205 

SVOCs (ug/kg, dry weight) Result SQL 

Acenaphthene Fluorene Phenanthrene Anthracene Fluoranthene 760 500 

Pyrene 680 500 

Butylbenzylphthalate Benzo(a)anthracene Chrysene Bis(2-ethylhexyl)phthalate Benzo(b)fluoranthene Benzo(a)pyrene Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) 34, pp. 95, 254 PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD53A NC-SD54A NC-SD55A NC-SD56A NC-SD57A NC-SD93A 

EPA Sample No. (M)B5DW9 (M)B5DX1 (M)B5DX3 (M)B5DX5 (M)B5DX7 (M)B5E49 

Date: 2/26/2009 2/26/2009 2/26/2009 2/26/2009 2/27/2009 2/27/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments Dup. (SD57A) 

Reference(s) 23, p. 22; 24, p. 57; 25, 

pp. 58, 65 

23, p. 22; 24, p. 56; 25, 

pp. 59, 65 

23, p. 23; 24, p. 59; 25, 

pp. 59, 65 

23, p. 22; 24, p. 58; 25, 

pp. 60, 65 

23, p. 25; 24, p. 61; 25, 

pp. 65, 73 

23, p. 25; 24, p. 61; 25

pp. 65, 67 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 189 3.6 

Cadmium 124 1.8 26.5 2.0 62.2 2.2 44.1 2.1 36.1 2.7 38.5 2.8 

Chromium 1,000 3.6 616 4.3 448 4.3 393 5.6 Copper 12,100 8.9 2,660 9.8 5,310 10.8 4,170 10.6 2,530 13.7 2,680 14.1 

Lead 

Nickel 1,420 14.2 328 15.7 695 17.2 514 17.0 361 22.0 378 22.6 

Silver 

Zinc 7,340 21.4 2,530 23.5 4,440 25.9 3,370 25.5 2,850 33.0 2,990 33.9 

Reference(s) 29, pp. 17, 60-62, 75 29, pp. 18, 60-62, 75-76 29, pp. 19, 60-62, 76-77 29, pp. 20, 60-62, 77 29, pp. 21, 60-62, 77-78 29, pp. 44, 60-63, 91 

VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Acenaphthene Fluorene Phenanthrene Anthracene Fluoranthene Pyrene Butylbenzylphthalate Benzo(a)anthracene Chrysene Bis(2-ethylhexyl)phthalate Benzo(b)fluoranthene Benzo(a)pyrene Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD59A NC-SD60A NC-SD61A NC-SD62A NC-SD63A NC-SD64A 

EPA Sample No. (M)B5DY1 (M)B5DY3 (M)B5DY5 (M)B5DY7 (M)B5DY9 (M)B5DZ1 

Date: 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments MS/MSD 

Reference(s) 23, p. 25; 24, p. 63; 25, 

pp. 65, 74 

23, p. 25; 24, p. 62; 25, 

pp. 65, 74 

23, p. 25; 24, p. 65; 25, 

pp. 66, 71 

23, p. 25; 24, p. 64; 25, 

pp. 66, 75 

23, p. 25; 24, p. 67; 25, 

pp. 66, 71 

23, p. 25; 24, p. 66; 25

pp. 66, 71 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 36.5 2.5 40.0 2.3 17.0 2.5 4.3 0.7 11.4 2.2 21.8 1.0 

Chromium 381 5.0 411 4.6 Copper Lead 737 4.6 838 5.0 Nickel 341 20.1 360 18.4 281 20.0 138 6.0 182 8.0 

Silver 

Zinc 2,910 30.2 3,190 27.6 2,220 30.0 3,560 9.0 1,650 26.7 1,880 12.0 

Reference(s) 29, pp. 31, 60-63, 81 29, pp. 32, 60-63, 81-82 29, pp. 33, 60-63, 82-83 29, pp. 34, 60-63, 85 29, pp. 35, 60-63, 85-86 29, pp. 36, 60-63, 86 

VOCs (ug/kg, dry weight) Result SQL 

Chlorobenzene Isopropylbenzene 78 12 Reference(s) 

35, pp. 38, 154 

SVOCs (ug/kg, dry weight) Result SQL Result SQL 

Acenaphthene Fluorene Phenanthrene Anthracene Fluoranthene 7,900 2,400 

Pyrene 12,000 2,400 2,100 2,100 Butylbenzylphthalate Benzo(a)anthracene 3,900 2,400 

Chrysene 3,600 2,400 

Bis(2-ethylhexyl)phthalate 16,000 2,400 11,000 2,100 Benzo(b)fluoranthene 2,700 2,400 

Benzo(a)pyrene 2,800 2,400 

Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) 35, pp. 56-57, 176-177 35, pp. 108, 228 

PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD66A NC-SD67A NC-SD68A NC-SD69A NC-SD94A NC-SD70A 

EPA Sample No. (M)B5DZ5 (M)B5DZ7 (M)B5DZ9 (M)B5E01 (M)B5E51 (M)B5E03 

Date: 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 2/27/2009 

Depth (ft) 0-2 0-2 0-2 0-2 0-2 0-2 

Comments Dup. (SD69A) 

Reference(s) 23, p. 25; 24, p. 68; 25, 

pp. 66, 71 

23, p. 26; 24, p. 70; 25, 

pp. 66, 76 

23, p. 26; 24, p. 71; 25, 

pp. 66, 76 

23, p. 26; 24, p. 72; 25, 

pp. 66, 77 

23, p. 26; 24, p. 72; 25, 

pp. 66, 77 

23, p. 26; 24, p. 73; 25

pp. 66, 78 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 6.2 J 1.9 42.9 1.5 60.0 1.5 41.7 1.9 56.0 1.9 140 1.6 

Chromium 461 3.1 526 3.0 406 3.9 500 3.8 982 3.2 Copper Lead 759 3.0 910 3.9 973 3.8 1,440 3.2 Nickel 361 12.3 428 12.1 357 15.6 429 15.3 709 12.8 

Silver 

Zinc 1,700 22.6 3,450 18.4 3,940 18.2 2,930 23.3 3,490 22.9 5,900 19.2 

Reference(s) 29, pp. 38, 60-63, 87-88 29, pp. 39, 60-63, 88 29, pp. 40, 60-63, 88-89 29, pp. 41, 60-63, 89 29, pp. 45, 60-63, 91-92 29, pp. 42, 60-63, 90 

VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL 

Acenaphthene 1,700 1,400 

Fluorene Phenanthrene 4,900 1,400 

Anthracene 1,900 1,400 Fluoranthene 880 860 3,300 1,400 

Pyrene 1,200 860 5,000 1,400 Butylbenzylphthalate Benzo(a)anthracene 2,000 1,400 Chrysene 1,800 1,400 Bis(2-ethylhexyl)phthalate 6,000 860 9,000 1,400 54,000 7,900 

Benzo(b)fluoranthene 1,500 1,400 Benzo(a)pyrene 1,500 1,400 Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) 35, pp. 58, 178 35, pp. 60-61, 180 35, pp. 8, 11, 62, 181-

182 

35, pp. 64, 184 

PCBs (ug/kg, dry weight) 

Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table B

Alternate Evaluation Observed Release Concentrations

Surface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD74A NC-SD75A NC-SD76A 

EPA Sample No. (M)B5E11 (M)B5E13 (M)B5E15 

Date: 2/25/2009 2/25/2009 2/25/2009 

Depth (ft) 0-2 0-2 0-2 

Comments 

Reference(s) 23, p. 18; 24, p. 21; 25, 

pp. 43, 49 

23, p. 19; 24, p. 24; 25, 

pp. 43, 47 

23, p. 19; 24, p. 25; 25, 

pp. 43, 47 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL 

Arsenic 

Cadmium 5.8 1.5 3.3 1.5 13.3 2.2 

Chromium Copper 595 11.1 

Lead 

Nickel Silver Zinc Reference(s) 28, pp. 41, 55-57, 77 28, pp. 42, 55-57, 77 28, pp. 43, 55-57, 78 VOCs (ug/kg, dry weight) Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Acenaphthene Fluorene Phenanthrene Anthracene Fluoranthene Pyrene Butylbenzylphthalate Benzo(a)anthracene Chrysene Bis(2-ethylhexyl)phthalate Benzo(b)fluoranthene Benzo(a)pyrene Indeno(1,2,3-cd)pyrene Benzo(g,h,i)perylene Reference(s) PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level chosen from the hig
Table C

Alternate Evaluation Background Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

Background Concentrations

SAT2 Sample No. NC-SD107B NC-SD108B NC-SD109B NC-SD110B NC-SD111B NC-SD112B Maximum 

Background

Direction 

EPA Sample No. (M)B5E78 (M)B5E80 (M)B5E82 (M)B5E84 (M)B5E86 (M)B5E88 of Bias

Date: 3/10/2009 3/10/2009 3/10/2009 3/10/2009 3/10/2009 3/10/2009

Depth (feet) 4.0-6.0 4.0-5.0 4.0-6.0 4.0-6.0 4.0-6.0 4.0-5.5

Comments

Reference(s) 23, p. 33; 24, p. 

81; 25, pp. 82-83

23, p. 33; 24, p. 

82; 25, pp. 82-83

23, p. 33; 24, p. 

83; 25, pp. 82-83

23, p. 33; 24, p. 

84; 25, pp. 82-83

23, p. 33; 24, p. 

85; 25, pp. 82-83

23, p. 33; 24, p. 

86; 25, pp. 82-83

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQLAntimony 16.5 UJ 16.5 16.7 UJ 16.7 16.2 UJ 16.2 17.2 UJ 17.2 16 UJ 16.0 18.2 UJ 18.2 18.2 UJ No Bias

Arsenic 14.4 J 2.8 14.1 J 2.8 14.2 J 2.7 13.1 J 2.9 15.3 J 2.7 13.6 J 3.0 15.3 J No Bias

Cadmium 1.4 UJ 1.4 1.4 UJ 1.4 1.4 UJ 1.4 1.4 UJ 1.4 2.1 J 1.3 1.5 UJ 1.5 2.1 J No Bias

Chromium 94.6 J 2.8 74.9 J 2.8 92.1 J 2.7 85 J 2.9 134 J 2.7 95.4 J 3.0 134 J No Bias

Cobalt 12.8 J 13.8 13.3 J 13.9 12.7 J 13.5 11.9 J 14.3 12 J 13.3 11.9 J 15.2 13.3 J No Bias

Nickel 37.2 J 11.0 34.9 J 11.1 41.4 J 10.8 34 J 11.5 38.6 J 10.7 41.5 J 12.1 41.5 J No Bias

Selenium 9.6 UJ 9.6 9.7 UJ 9.7 9.5 UJ 9.5 10 UJ 10.0 9.3 UJ 9.3 10.6 UJ 10.6 10.6 UJ No Bias

Reference(s) 36, pp. 2-5, 14-15 36, pp. 2-4, 8, 16-

17

36, pp. 2-4, 9, 17 36, pp. 2-4, 10, 17-

18

36, pp. 2-4, 11, 18-

19

36, pp. 2-4, 12, 19

VOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL

 Acetone 50 33 150 45 75 36 85 45 130 43 110 42 150 Chloroform 16 U 16 23 U 23 18 U 18 22 U 22 21 U 21 21 U 21 23 U

 Chlorobenzene 16 U 16 23 U 23 18 U 18 22 U 22 21 U 21 21 U 21 23 U

 Isopropylbenzene 16 U 16 23 U 23 18 U 18 22 U 22 21 U 21 21 U 21 23 U

Reference(s) 46, pp. 108, 281-

282

46, pp. 109, 283-

284

46, pp. 110, 284-

285

46, pp. 111, 285-

286

46, pp. 112, 287-

288

46, pp. 113, 288-

289

SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL

 Acetophenone 41 J 440 41 J 510 42 J 450 38 J 450 55 J 450 90 J 490 510 U No Bias Naphthalene 43 J 440 37 J 510 35 J 450 29 J 450 25 J 450 49 J 490 510 U No Bias 2-Methylnaphthalene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 23 J 490 510 U No Bias

 1,1'-Biphenyl 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 490 U 490 510 U No Bias

 Acenaphthylene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 33 J 490 510 U No Bias

 Acenaphthene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 17 J 490 510 U No Bias

 Dibenzofuran 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 490 U 490 510 U No Bias

 Fluorene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 15 J 490 510 U No Bias

 Phenanthrene 16 J 440 510 U 510 14 J 450 450 U 450 450 U 450 80 J 490 510 U No Bias

 Anthracene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 45 J 490 510 U No Bias

 Carbazole 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 490 U 490 510 U No Bias

 Fluoranthene 38 J 440 16 J 510 31 J 450 450 U 450 14 J 450 490 U 490 510 U No Bias Pyrene 440 U 440 21 J 510 38 J 450 450 U 450 14 J 450 210 J 490 210 J No Bias Benzo(a)anthracene 30 J 440 17 J 510 28 J 450 450 U 450 14 J 450 130 J 490 510 U No Bias Chrysene 30 J 440 510 U 510 27 J 450 450 U 450 450 U 450 140 J 490 510 U No Bias Bis(2-ethylhexyl)phthalate 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 1,200 U 490 1,200 U No Bias

 Benzo(b)fluoranthene 32 J 440 510 U 510 32 J 450 450 U 450 450 U 450 170 J 490 170 J No Bias Benzo(k)fluoranthene 16 J 440 510 U 510 450 U 450 450 U 450 450 U 450 51 J 490 510 U No Bias

 Benzo(a)pyrene 32 J 440 510 U 510 23 J 450 450 U 450 450 U 450 150 J 490 510 U No Bias Indeno(1,2,3-cd)pyrene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 81 J 490 510 U No Bias

 Dibenzo(a,h)anthracene 440 U 440 510 U 510 450 U 450 450 U 450 450 U 450 26 J 490 510 U No Bias

 Benzo(g,h,i)perylene 22 J 440 510 U 510 17 J 450 450 U 450 450 U 450 98 J 490 510 U No Bias

Reference(s) 46, pp. 119-120, 

296-298

46, pp. 121-122, 

298-300

46, pp. 123-124, 

300-302

46, pp. 125-126, 

302-303

46, pp. 127-128, 

304-305

46, pp. 129-130, 

305-307

PCBs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Aroclor-1242 85 U 85 98 U 98 88 U 88 88 U 88 87 U 87 94 U 94 98 U Aroclor-1254 85 U 85 98 U 98 88 U 88 88 U 88 87 U 87 94 U 94 98 UReference(s) 46, pp. 139, 310 46, pp. 140, 311 46, pp. 141, 311 46, pp. 142, 311 46, pp. 143, 311 46, pp.144, 312

CRQL - Contract required quantitation limit U - not detectedSQL - Sample quantitation limit J - qualified datamg/kg - milligrams per kilogramug/kg - micrograms per kilogram
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

Observed Release Concentrations 

SAT2 Sample No. Background Level NC-SD01B NC-SD07B NC-SD08B NC-SD09B NC-SD10B NC-SD13B N

EPA Sample No. B5DJ6 B5DK8 B5DL0 (M)B5DL2 (M)B5DL4 B5DM0 (

Date: 2/11/2009 2/17/2009 2/17/2009 2/17/2009 2/17/2009 2/18/2009 

Depth (feet) 3.5-4.0 4.0-6.0 4.0-6.0 4.0-6.0 4.0-4.8 4.0-6.0 

Comments 

Reference(s) 23, p. 9; 24, p. 2; 25, 23, p. 12; 24, p. 7; 25, 23, p. 12; 24, p. 8; 25, 23, p. 12; 24, p. 9; 25, 23, p. 13; 24, p. 10; 25, 23, p. 15; 24, p. 13; 25, 23, p. 3

Metals (mg/kg, dry weight) Result SQL Result SQL Resu

Antimony 18.2 U Arsenic 15.3 Cadmium 2.1 20.3 1.2 27.4 1.3 28.9 

Chromium 134 Cobalt 13.3 

Nickel 41.5 Selenium 10.6 U 

Reference(s) 27, pp. 30, 52, 60 27, pp. 32, 52, 61 37

VOCs (ug/kg, dry weight) Acetone 150 Chloroform 23 U Chlorobenzene 23 U Isopropylbenzene 23 U Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

 Acetophenone 510 U Naphthalene 510 U 3,000 1,500  2-Methylnaphthalene 510 U 910 390 2,300 1,500

 1,1'-Biphenyl 510 U

 Acenaphthylene 510 U

 Acenaphthene 510 U 15,000 1,500 

 Dibenzofuran 510 U 10,000 1,500  Fluorene 510 U 580 390 24,000 1,500 

 Phenanthrene 510 U 1,800 390 84,000 1,500 

 Anthracene 510 U 87,000 1,500  Carbazole 510 U 10,000 1,500  Fluoranthene 510 U 640 480 1,100 390 56,000 1,500 Pyrene 210 J 1,200 390 41,000 1,500

 Benzo(a)anthracene 510 U 600 480 520 390 18,000 1,500

 Chrysene 510 U 600 480 24,000 1,500 Bis(2-ethylhexyl)phthalate 1,200 U 1,400 480 5,100 440 3,700 390 1,900 420 4,000 1,500  Benzo(b)fluoranthene 170 J 530 480 12,000 1,500 

 Benzo(k)fluoranthene 510 U 4,500 1,500

 Benzo(a)pyrene 510 U 610 480 9,500 1,500  Indeno(1,2,3-cd)pyrene 510 U 4,900 1,500

 Dibenzo(a,h)anthracene 510 U

 Benzo(g,h,i)perylene 510 U 3,600 1,500 

Reference(s) 30, pp. 27-28, 63 31, pp. 89, 207 31, pp. 95, 211 31, pp.100-101, 214-215 31, pp.107, 219 32, pp. 32-33, 101-102 PCBs (ug/kg, dry weight) Result SQL Result SQL Aroclor-1242 98 U 120 92

 Aroclor-1254 98 U 220 82 

Reference(s) 31, pp. 125, 228 31, pp. 131, 230 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD17B NC-SD18B NC-SD19B NC-SD21B NC-SD22B NC-SD23B NC-SD24B 

EPA Sample No. (M)B5DM8 (M)B5DN0 (M)B5DN2 (M)B5DN6 (M)B5DN8 (M)B5DP0 (M)B5DP2 

Date: 3/13/2009 3/13/2009 3/13/2009 3/16/2009 3/16/2009 3/17/2009 3/17/2009 

Depth (feet) 4.0-5.0 4.0-6.0 4.0-6.0 4.0-5.0 4.0-5.0 3.0-3.5 2.5-3 

Comments 

Reference(s) 23, p. 38; 24, p. 91; 25, 23, p. 38; 24, p. 90; 25, 23, p. 38; 24, p. 92; 25, pp. 23, p. 41; 24, p. 96; 25, 23, p. 41; 24, p. 98; 25, 23, p. 44; 24, p. 100; 25, pp. 23, p. 44; 24, p. 99; 25, 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Antimony Arsenic Cadmium 17.5 1.4 27.1 1.4 19.7 1.0 Chromium Cobalt Nickel 540 10.0 310 9.9 545 10.5 378 7.7 Selenium 44.2 8.7 Reference(s) 37, pp. 3, 11, 17 37, pp. 3, 12, 18 37, pp. 3, 13, 19 42, pp. 6, 18-19, 23 42, pp. 7, 18-19, 23-24 42, pp. 8, 18-19, 24-25 42, pp. 9, 25 VOCs (ug/kg, dry weight) Acetone Chloroform Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Acetophenone 530 430 

Naphthalene 13,000 10,000 8,000 430 560 410 2,800 430 2-Methylnaphthalene 6,000 430 520 410 2,500 430 1,1'-Biphenyl 1,200 430 Acenaphthylene 610 430 

Acenaphthene 17,000 10,000 6,100 430 560 410 1,800 430 

Dibenzofuran 11,000 10,000 4,700 430 1,100 430 

Fluorene 21,000 10,000 9,600 430 690 410 3,100 430 Phenanthrene 78,000 10,000 47,000 430 2,900 410 540 440 10,000 430 

Anthracene 32,000 10,000 6,100 430 930 410 3,500 430 Carbazole 680 430 

Fluoranthene 590 450 53,000 10,000 31,000 430 8,200 430 

Pyrene 37,000 10,000 21,000 430 5,500 430 Benzo(a)anthracene 17,000 10,000 9,200 430 2,800 430 Chrysene 14,000 10,000 8,600 430 2,700 430 

Bis(2-ethylhexyl)phthalate Benzo(b)fluoranthene 11,000 10,000 4,800 430 1,800 430 Benzo(k)fluoranthene 1,800 430 670 430 Benzo(a)pyrene 4,300 430 1,500 430 Indeno(1,2,3-cd)pyrene 1,700 430 710 430 

Dibenzo(a,h)anthracene 640 430 

Benzo(g,h,i)perylene 1,300 430 640 430 

Reference(s) 46, pp. 34, 213 46, pp. 38-39, 216-217 46, pp. 42-43, 219-221 46, pp. 46, 223-224 46, pp. 48, 226 46, pp. 50-51, 227-229 PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD27B NC-SD28B NC-SD29B NC-SD30B NC-SD31B NC-SD32B NC-SD33B 

EPA Sample No. (M)B5DP8 (M)B5DQ0 (M)B5DQ2 (M)B5DQ4 (M)B5DQ6 (M)B5DQ8 (M)B5DR0 

Date: 3/18/2009 3/18/2009 3/19/2009 3/19/2009 3/19/2009 3/19/2009 3/20/2009 

Depth (feet) 2.75-3.25 2.0-3.0 4.0-5.5 4.0-6.0 3.5-4.0 3.5-4.0 3.5-4.5 

Comments MS/MSD 

Reference(s) 23, p. 48; 24, p. 104; 25, 23, p. 48; 24, p. 103; 25, 23, p. 50; 24, p. 108; 25, 23, p. 50; 24, p. 106; 25, 23, p. 50; 24, p. 107; 25, 23, p. 50; 24, p. 109; 25, 23, p. 53; 24, p. 111; 25, 23

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Antimony Arsenic Cadmium Chromium 721 2.5 Cobalt Nickel 178 6.5 808 9.9 363 9.0 1,150 9.6 1,830 10.5 634 9.9 637 9.0 

Selenium Reference(s) 38, pp. 6, 19 38, pp. 3, 7, 19 38, pp. 3, 8, 20 38, pp. 3, 9, 20-21 38, pp. 3, 10, 21 38, pp. 3, 14, 23-24 38, pp. 3, 15, 24 

VOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL 

Acetone Chloroform 1,600 1,400 

Chlorobenzene Isopropylbenzene 1,300 1,200 1,600 1,300 

Reference(s) 39, pp. 30, 81 39, pp. 32, 84-85 39, pp. 33, 85-86 SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Acetophenone Naphthalene 700 280 620 410 2,300 410 1,100 420 

2-Methylnaphthalene 590 280 2,100 410 10,000 410 5,700 420 790 390 1,1'-Biphenyl 830 410 Acenaphthylene Acenaphthene 550 280 890 410 2,500 410 570 420 

Dibenzofuran 1,100 410 Fluorene 810 280 1,100 410 1,800 410 970 420 

Phenanthrene 3,700 280 790 420 3,800 410 12,000 410 9,100 420 1,100 440 2,200 390 

Anthracene 1,200 280 960 410 Carbazole Fluoranthene 2,500 280 1,600 410 2,300 410 830 440 1,400 390 

Pyrene 1,800 280 2,200 410 4,300 410 1,100 440 1,600 390 Benzo(a)anthracene 1,100 280 1,100 410 1,800 410 550 440 860 390 Chrysene 1,100 280 800 410 2,300 410 480 440 700 390 Bis(2-ethylhexyl)phthalate 22,000 410 9,400 410 6,900 420 6,600 440 6,900 390 

Benzo(b)fluoranthene 580 280 680 410 1,100 410 660 390 Benzo(k)fluoranthene Benzo(a)pyrene 570 280 580 410 1,100 410 Indeno(1,2,3-cd)pyrene Dibenzo(a,h)anthracene Benzo(g,h,i)perylene 560 410 Reference(s) 39, pp. 39-40, 93-94 39, pp. 41, 96 39, pp. 43-44, 97-98 39, pp. 47-48, 100-102 39, pp. 51, 104-105 39, pp. 55, 108-109 40, pp. 7-8, 46-47 

PCBs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL 

Aroclor-1242 920 81 1,100 81 650 85 370 75 

Aroclor-1254 Reference(s) 39, pp. 67, 117 39, pp. 71, 118 39, pp. 77, 119 40, pp. 18, 56 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD38B NC-SD39B NC-SD93B NC-SD42B NC-SD45B NC-SD46B NC-SD47B 

EPA Sample No. (M)B5DS0 (M)B5DS2 (M)B5E50 (M)B5DS8 (M)B5DT4 (M)B5DT6 (M)B5DT8 

Date: 3/25/2009 3/25/2009 3/25/2009 3/25/2009 3/25/2009 3/25/2009 3/25/2009 

Depth (feet) 2.0-3.0 4.0-5.5 4.0-5.5 4.0-6.0 4.0-6.0 4.0-6.0 4.0-5.5 

Comments Dup. (SD39B) 

Reference(s) 23, p. 58; 24, p. 113; 25, 23, p. 58; 24, p. 114; 25, pp. 23, p. 58; 24, p. 114; 25, 23, p. 58; 24, p. 115; 25, 23, p. 59; 24, p. 116; 25, 23, p. 59; 24, p. 117; 25, 23, p. 59; 24, p. 118; 25, 23, p

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL R

Antimony 

Arsenic 109 1.6 152 2.7 157 2.4 621 2.1 1Cadmium 70.7 1.4 65.1 1.4 86.4 1.3 95.3 1.4 82.4 1.2 67.1 1.1 9

Chromium 703 2.7 828 2.5 1,060 2.7 875 2.4 8Cobalt Nickel 558 11.3 815 10.8 1,200 10.2 421 6.6 1,490 10.8 1,640 9.6 5,010 8.5 1Selenium 12.6 5.7 

Reference(s) 41, pp. 3-5, 20-21 41, pp. 3-4, 6, 21 41, pp. 3-4, 18, 29 41, pp. 3-4, 7, 21-22 41, pp. 3-4, 8, 22-23 41, pp. 3-4, 12, 25 41, pp. 3-4, 13, 25-26 4VOCs (ug/kg, dry weight) Acetone Chloroform Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL R

Acetophenone Naphthalene 2,600 1,100 2-Methylnaphthalene 2,700 1,100 1,1'-Biphenyl Acenaphthylene Acenaphthene 4,500 2,000 Dibenzofuran Fluorene 5,800 2,000 Phenanthrene 3,200 1,900 3,000 830 7,000 2,000 1,600 420 1,400 360 4,700 1,100 9Anthracene 6,500 2,000 530 420 Carbazole Fluoranthene 660 450 2,500 1,900 2,000 830 16,000 2,000 1,300 420 910 360 2,000 1,100 5

Pyrene 3,100 1,900 Benzo(a)anthracene 1,700 830 11,000 2,000 830 420 570 360 Chrysene 1,200 830 11,000 2,000 750 420 520 360 1,300 1,100 Bis(2-ethylhexyl)phthalate 6,700 450 24,000 1,900 27,000 830 5,700 420 7,200 360 3,900 1,100 7

Benzo(b)fluoranthene 930 830 6,500 2,000 550 420 Benzo(k)fluoranthene Benzo(a)pyrene 840 830 7,400 2,000 580 420 Indeno(1,2,3-cd)pyrene 3,000 2,000 

Dibenzo(a,h)anthracene Benzo(g,h,i)perylene 3,000 2,000 Reference(s) 44, pp. 19, 127 44, pp. 21, 128-129 44, pp. 43-44, 149 44, pp. 23-24, 130-131 44, pp. 25-26, 132-133 44, pp. 27, 134 44, pp. 31, 137-138 PCBs (ug/kg, dry weight) Result SQL Result SQL Result SQL R

Aroclor-1242 300 87 660 82 730 71 5Aroclor-1254 Reference(s) 44, pp. 61, 159 44, pp. 65, 160 44, pp. 66, 160 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD50B NC-SD51B NC-SD52B NC-SD53B NC-SD54B NC-SD55B NC-SD56B 

EPA Sample No. (M)B5DW4 (M)B5DW6 (M)B5DW8 (M)B5DX0 (M)B5DX2 (M)B5DX4 (M)B5DX6 

Date: 3/26/2009 3/31/2009 3/26/2009 3/31/2009 3/26/2009 3/31/2009 3/31/2009 

Depth (feet) 3.0-3.5 4.0-6.0 4.0-5.5 4.0-5.5 4.0-5.5 4.0-6.0 4.0-6.0 

Comments MS/MSD 

Reference(s) 23, p. 61; 24, p. 120; 25, 23, p. 65; 24, p. 124; 25, 23, p. 62; 24, p. 121; 25, 23, p. 65; 24, p. 125; 25, 23, p. 62; 24, p. 122; 25, 23, p. 65; 24, p. 126; 25, 23, p. 65; 24, p. 128; 25, 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL 

Antimony 53.2 16.9 43.5 17.3 

Arsenic 442 2.4 481 2.8 394 2.7 

Cadmium 53.9 1.2 158 1.4 105 1.4 

Chromium 840 2.4 1,080 2.8 904 2.7 

Cobalt 77.2 13.9 

Nickel 4,690 9.7 4,570 11.1 2,660 10.9 Selenium 35.3 9.7 Reference(s) 41, pp. 4, 15, 27 43, pp. 4, 6, 25 41, pp. 4, 16, 27-28 41, pp. 4, 17, 28 43, pp. 4, 11, 28-29 

VOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL 

Acetone Chloroform Chlorobenzene 28,000 1,500 Isopropylbenzene 3,600 1,500 9,600 1,400 Reference(s) 45, pp. 3, 110 45, pp. 4, 112 45, pp. 5, 113 

SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Acetophenone Naphthalene 5,700 1,200 1,600 470 920 440 4,700 900 9,400 1,900 86,000 7,100 5,200 960 

2-Methylnaphthalene 4,200 1,200 2,600 470 1,500 440 2,000 900 7,500 1,900 29,000 7,100 4,800 960 1,1'-Biphenyl Acenaphthylene Acenaphthene 1,700 1,200 720 470 730 440 1,100 900 4,200 1,900 9,900 7,100 1,500 960 

Dibenzofuran Fluorene 1,700 1,200 720 470 990 440 3,800 1,900 1,400 960 Phenanthrene 7,700 1,200 4,200 470 3,800 440 3,600 900 16,000 1,900 15,000 7,100 7,000 960 Anthracene 1,900 1,200 560 440 4,100 1,900 1,400 960 Carbazole Fluoranthene 4,000 1,200 1,300 470 1,500 440 1,500 900 9,400 1,900 3,100 960 

Pyrene 5,300 1,200 2,000 470 2,400 440 2,400 900 13,000 1,900 8,200 7,100 4,500 960 Benzo(a)anthracene 2,300 1,200 750 470 1,000 440 3,800 1,900 1,900 960 

Chrysene 2,500 1,200 810 470 840 440 920 900 4,200 1,900 1,800 960 

Bis(2-ethylhexyl)phthalate 4,000 470 6,600 440 6,300 900 19,000 1,900 Benzo(b)fluoranthene 1,500 1,200 570 470 730 440 3,200 1,900 1,500 960 

Benzo(k)fluoranthene Benzo(a)pyrene 1,600 1,200 620 470 680 440 3,200 1,900 1,700 960 

Indeno(1,2,3-cd)pyrene Dibenzo(a,h)anthracene Benzo(g,h,i)perylene Reference(s) 44, pp. 37-38, 142-144 45, pp. 26-27, 141-143 44, pp. 39-40, 144-146 45, pp. 28, 143-144 44, pp. 41-42, 146-147 45, pp. 30, 145-146 45, pp. 32-33, 147-148 PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD59B NC-SD60B NC-SD63B NC-SD94B NC-SD65B NC-SD67B NC-SD68B 

EPA Sample No. (M)B5DY2 (M)B5DY4 (M)B5DZ0 (M)B5E52 (M)B5DZ4 (M)B5DZ8 (M)B5E00 

Date: 3/31/2009 3/31/2009 4/1/2009 4/1/2009 4/1/2009 3/31/2009 4/1/2009 

Depth (feet) 4.0-5.5 4.0-5.5 4.0-6.0 4.0-6.0 4.0-6.0 4.0-6.0 3.5-4.5 

Comments Dup. (SD63B) 

Reference(s) 23, p. 66; 24, p. 131; 25, 23, p. 65; 24, p. 130; 25, 23, p. 67; 24, p. 133; 25, 23, p. 67; 24, p. 133; 25, 23, p. 67; 24, p. 134; 25, 23, p. 66; 24, p. 132; 25, 23, p. 68; 24, p. 135; 25, pp. 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Antimony 53.6 19.3 49.6 18.0 46.8 17.9 49.3 18.9 52.9 18.1 

Arsenic Cadmium Chromium Cobalt Nickel Selenium 58 7.4 Reference(s) 43, pp. 4, 14, 30 43, pp. 4, 15, 31 43, pp. 4, 16, 31-32 43, pp. 4, 22, 35-36 43, pp. 4, 17, 32 43, pp. 4, 19, 33-34 VOCs (ug/kg, dry weight) Result SQL Result SQL 

Acetone 

Chloroform Chlorobenzene Isopropylbenzene 7,400 1,300 1,900 1,900 

Reference(s) 45, pp. 14, 126 45, pp. 15, 128 

SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL Result SQL 

Acetophenone Naphthalene 1,600 750 61,000 7,700 1,600 1,000 78,000 8,300 85,000 11,000 

2-Methylnaphthalene 1,600 750 31,000 7,700 2,700 1,500 2,400 1,000 1,500 1,000 28,000 8,300 18,000 11,000 1,1'-Biphenyl Acenaphthylene Acenaphthene 1,500 750 12,000 7,700 9,200 8,300 

Dibenzofuran Fluorene 1,500 750 Phenanthrene 6,000 750 24,000 7,700 4,300 1,500 4,700 1,000 2,600 1,000 32,000 8,300 36,000 11,000 

Anthracene 1,500 750 8,300 7,700 11,000 8,300 14,000 11,000 Carbazole Fluoranthene 2,800 750 8,100 7,700 1,900 1,500 1,700 1,000 15,000 8,300 30,000 11,000 Pyrene 3,700 750 14,000 7,700 4,000 1,500 2,900 1,000 1,800 1,000 22,000 8,300 34,000 11,000 Benzo(a)anthracene 1,700 750 1,000 1,000 9,700 8,300 20,000 11,000 Chrysene 1,500 750 1,000 1,000 9,000 8,300 17,000 11,000 

Bis(2-ethylhexyl)phthalate 11,000 1,500 6,800 1,000 7,700 1,000 

Benzo(b)fluoranthene 1,000 750 29,000 J 11,000 Benzo(k)fluoranthene Benzo(a)pyrene 1,200 750 21,000 11,000 Indeno(1,2,3-cd)pyrene 13,000 11,000 Dibenzo(a,h)anthracene Benzo(g,h,i)perylene Reference(s) 45, pp. 38-39, 152-153 45, pp. 40, 154-155 45, pp. 42, 156-157 45, pp. 54, 167-168 45, pp. 45, 158-159 45, pp. 46, 159-161 45, pp. 48-49, 161-163 

PCBs (ug/kg, dry weight) Aroclor-1242 Aroclor-1254 Reference(s) 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c
Table D

Alternate Evaluation Observed Release Concentrations

Subsurface Samples - February-April 2009

Newtown Creek, Brooklyn/Queens, NY

SAT2 Sample No. NC-SD74B NC-SD75B NC-SD76B NC-SD92B 

EPA Sample No. (M)B5E12 (M)B5E14 (M)B5E16 (M)B5E48 

Date: 3/16/2009 3/16/2009 3/16/2009 3/16/2009 

Depth (feet) 4.0-4.5 3.5-4.0 4.0-6.0 4.0-6.0 

Comments Dup. (SD76B) 

Reference(s) 23, p. 41; 24, p. 97; 25, 23, p. 40; 24, p. 94; 25, 23, p. 41; 24, p. 95; 25, 23, p. 41; 24, p. 95; 25, pp. 

Metals (mg/kg, dry weight) Result SQL Result SQL Result SQL Result SQL 

Antimony Arsenic Cadmium Chromium 768 2.8 699 2.6 Cobalt Nickel 809 11.0 392 10.3 662 10.3 579 10.2 Selenium Reference(s) 42, pp. 12, 18-19, 27 42, pp. 13, 18-19, 27-28 42, pp. 14, 18-19, 28 42, pp. 15, 18-19, 28-29 VOCs (ug/kg, dry weight) Acetone Chloroform Chlorobenzene Isopropylbenzene Reference(s) SVOCs (ug/kg, dry weight) Result SQL Result SQL Result SQL 

Acetophenone Naphthalene 1,100 430 520 400 

2-Methylnaphthalene 1,200 430 1,1'-Biphenyl Acenaphthylene Acenaphthene 1,100 430 650 400 Dibenzofuran 820 430 Fluorene 1,500 430 850 400 Phenanthrene 7,500 430 2,900 400 510 410 Anthracene 2,500 430 Carbazole Fluoranthene 6,500 430 2,400 400 650 410 Pyrene 4,200 430 3,100 400 680 410 Benzo(a)anthracene 2,200 430 1,500 400 Chrysene 2,000 430 1,300 400 Bis(2-ethylhexyl)phthalate 9,100 400 

Benzo(b)fluoranthene 1,200 430 1,200 400 Benzo(k)fluoranthene Benzo(a)pyrene 950 430 850 400 Indeno(1,2,3-cd)pyrene 570 400 Dibenzo(a,h)anthracene Benzo(g,h,i)perylene 520 400 Reference(s) 46, pp. 64-65, 240-241 46, pp. 68-69, 244-245 46, pp. 72, 249 PCBs (ug/kg, dry weight) Result SQL Result SQL Result SQL 

Aroclor-1242 240 89 470 77 200 79 Aroclor-1254 Reference(s) 46, pp. 103, 261 46, pp. 105, 261 46, pp. 106, 261 

CRQL - Contract required quantitation limit SQL - Sample quantitation limit mg/kg - milligrams per kilogram U - not detected ug/kg - micrograms per kilogram J - qualified data Background level c