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Attachment C ATTACHMENT C RESPONSE TO COMMENTS ATTACHMENT C RESPONSE TO COMMENTS INTRODUCTION This section responds to written comments received on the Access to the Region’s Core (ARC) project following the publication of the Final Environmental Impact Statement (FEIS) on November 7, 2008 and the close of the 30-day waiting period on December 8, 2008. This attachment is organized into three sections. The first section lists by name and date each of the resource agencies, elected officials, local governments, organizations and individuals that provided comments on the FEIS. The second section identifies all of the commenters that supported the project and then FTA analyzed each letter, consolidated and summarized the issues raised by each commenter, and provided an individual response to each commenter’s issues in the order listed in the first section. The third section is a copy of each of the twenty-five letters received. SECTION 1. LIST OF COMMENTERS RESOURCE AGENCIES 1. Amtrak, Eleanor Acheson , Vice President, General Counsel and Corporate Secretary, December 4, 2008 (AMTRAK) 2. United States Environmental Protection Agency, Region II, John Filippelli, Chief, Strategic Planning and Multi-Media Programs Branch, December 8, 2008 (USEPA) ELECTED OFFICIALS 3. Mayor of Harrisburg, PA, Stephen R. Reed, [addressed to Mary Peters, US Secretary of Transportation] December 2, 2008 (HARRISBURG) 4. New York City Council, Christine Quinn, Speaker, December 4, 2008 (NYC COUNCIL) 5. New Jersey Senate, Thomas H. Kean, Jr., December 8, 2008 (NJ SENATE) ORGANIZATIONS 6. Sive, Paget & Riesel, P.C. (C/S 12th Avenue, LLC), Mark Chertok, November 13, 2008 (SIVE) 7. Sive, Paget & Riesel, P.C. (C/S 12th Avenue, LLC), Mark Chertok, November 19, 2008 (SIVE2) 8. New York Building Congress, Richard Anderson, President, November 21, 2008 (NYBC) 9. National Association of Railroad Passengers, George L. Chilson, Chairman and Ross Capon, President & CEO [addressed to Mary Peters, US Secretary of Transportation], November 21, 2008 (NARP) 10. Jesco, Ken Pesta, Signature Account Manager, November 26, 2008 (JESCO) 11. McKirdy & Riskin, P.A., Joseph W. Grather, Esq., November 26, 2008 (MCKIRDY) 1 Access to the Region’s Core ROD 12. JCMS, Inc., Jayanta Dutta, December 1, 2008 (JCMS) 13. Sive, Paget & Riesel, P.C. (C/S 12th Avenue, LLC), Mark Chertok, December 2, 2008 (SIVE3) 14. George Harms Construction Co., Inc., Ed Nyland, President of Business Development, December 3, 2008 (GH CONSTR) 15. 34th Street Partnership, Dan Biederman, President, December 4, 2008 (34TH ST PART) 16. Alan M. Voorhees Transportation Center, Martin Robins, Senior Fellow, December 5, 2008 (VOORHEES) 17. NJ Alliance for Action, Phil Beachem, President, December 5, 2008 (NJ ALLIANCE) 18. Associated General Contractors of New Jersey, Brian N. Tobin, Executive Director, December 8, 2008 (AGCNJ) 19. Consolidated Edison of New York, Inc., John Banks, December 8, 2008 (CON ED) 20. Tri-State Transportation Campaign, Kyle Wiswall, Staff Attorney, December 8, 2008 (TRI STATE) 21. Lackawanna Coalition, David Peter Alan, Chair, December 8, 2008 (LACKAWANNA) INDIVIDUALS 22. John Kazanjian, November 12, 2008 (KAZANJIAN) 23. Mr. Anthony Scardino Jr., November 25, 2008 (SCARDINO) 24. Bernard B. Markey, December 5, 2008 (MARKEY) 25. Fred M. Perilstein, P.E., Consulting Engineer, December 8, 2008 (PERILSTEIN) 2 Attachment C SECTION 2. RESPONSE TO COMMENTS RECEIVED The following letters indicated support for the ARC Project, affirming the project’s potential to enhance public transit opportunities, provide additional transit capacity between New York and New Jersey, and promote economic growth of the region: Letter #4 - NYC COUNCIL, Letter#8 - NYBC, Letter #10 - JESCO, Letter #11 - MCKIRDY, Letter #12 - JCMS, Letter #14 - GH CONSTR, Letter #15 - 34TH ST PART, Letter #16 - VOORHEES, Letter #17 - NJ ALLIANCE, Letter #18 - AGCNJ, Letter #23 – SCARDINO. Letter #7 - SIVE2 Comment: points out a typographical error, Chapter 5.6 references Appendix 5.6 for additional information regarding air quality methodology and findings should instead reference Appendix 4.6. RESOURCE AGENCIES LETTER 1 – AMTRAK (AMTRAK) AMTRAK 1-1 Comment: FTA should extend the period of time for issuing the ROD until the Amtrak/NJ TRANSIT Memorandum of Agreement (MOA) has been signed and its terms incorporated into the ROD. AMTRAK 1-1 Response: FTA has considered and rejected the request to extend the prescribed time for issuing the ROD (according to the terms of 40 CFR 1506.10(d)). The subject MOA, which is currently being negotiated between Amtrak and NJ TRANSIT, was requested by FTA not as part of the NEPA process, but rather in order to limit the potential for cost increases and/or schedule delays as the project progresses through final design. FTA generally requires that a grantee agree on a term sheet with any third party, where the issues between the parties could affect the cost or schedule for the project, prior to approving entry into final design. That term sheet must be formalized in an executed agreement prior to FTA issuing a Full Funding Grant Agreement (FFGA). As the MOA negotiations are still on-going and not related to environmental uses, FTA will not delay issuing the ARC ROD. However, the FTA does intend that good faith efforts on the part of both NJ TRANSIT and Amtrak will result in the prompt completion of these negotiations and the execution of a term sheet prior to approving entry into final design. LETTER 2 – U.S. ENVIRONMENTAL PROTECTION AGENCY (USEPA) USEPA 2-1 Comment: USEPA is concerned about the relatively wide range of estimated acres (19.1 to 24.9) of long term impacts to wetlands and open waters. USEPA understands that final engineering specifications may refine this number; however, NJ TRANSIT will need to be more specific when describing wetlands impacts during permitting. USEPA 2-1 Response: 3 Access to the Region’s Core ROD The range of potential impacts is the result of unresolved final design issues (i.e., use of embankment vs. structure through the Meadowlands). These issues will be resolved during final design before any relevant US Army Corps of Engineers (USACE) and NJ Department of Environmental Protection (NJDEP) permits are issued. USEPA 2-2 Comment: The FEIS does not include a mitigation plan that can be examined by the public. The ROD should note that construction on the project cannot occur until a mitigation plan is finalized and underway. USEPA 2-2 Response: First, FTA would like to clarify that in an e-mail from USEPA on December 22, 2008, subsequent to the issuance of the FEIS, USEPA confirmed that they meant “construction of the project in regulated wetlands,” when they wrote “construction on the project” in their December 8, 2008 FEIS comment letter. FTA will accept USEPA’s comment in the revised manner. In response, the ARC ROD specifically requires that project construction cannot occur in regulated wetlands until a mitigation plan has been finalized and mitigation activities have started. FTA will review the mitigation plan and ensure that it will be available for public review and comment. The FEIS does not include a mitigation plan since there are issues that must be resolved during final design. During final design of the ARC project, and in support of the US Army Corps of Engineers (USACE) Section 404 (Clean Air Act) permitting process, NJ TRANSIT will prepare a wetlands mitigation plan that will be made available for public review. The plan will specify the steps to be taken to mitigate all of the project's impacts to regulated wetlands and open waters. The range of likely mitigations for wetlands impacts is discussed in the FEIS. The FEIS (Page 4.8-26) states that compensatory mitigation will be conducted pursuant to Compensatory Mitigation for Losses of Aquatic Resources Final Rule (40CFR Part 332) published in the Federal Register on April 10, 2008 as promulgated by the USACE. Mitigation of wetland and open water impacts will require the preparation and approval of a mitigation plan as part of the USACE Section 404 permitting process. The FEIS identified several viable options for providing compensatory mitigation: • The purchase of credits from a Federal and State approved wetland mitigation bank at the Oritani Marsh or Kane Tract; • Securing credits from an approved in-lieu fee program; • The development of an independent wetland mitigation site (permittee-responsible mitigation) that could include wetland establishment/creation, enhancement, and/or preservation at ratios acceptable to the USACE and NJDEP in consultation with the Meadowlands Interagency Mitigation Advisory Committee (MIMAC) in the same watershed as the proposed impacts; or • A combination thereof. 4 Attachment C The preferred option is to use the Federal and State Kane Tract wetland mitigation bank under development by the Meadowlands Conservation Trust. NJ TRANSIT will advance this mitigation approach and prepare a preliminary compensatory wetland mitigation plan for review and comment by MIMAC, which includes NJDEP and USACE. This will occur during the review phase of NJDEP and USACE permit applications. Information regarding anticipated permits can be found in FEIS Chapter 11. Concurrent with MIMAC review and comment, NJ TRANSIT will circulate the draft mitigation plan for public review and comment. Any party that commented on the ARC EIS process will be notified of the availability of the draft mitigation plan on the project’s web site as well as by individual letter. In conjunction with MIMAC and public review and comment, FTA will review and approve the mitigation plan, and the plan will be finalized and submitted by NJ TRANSIT to NJDEP and USACE for approval. Wetland mitigation will be conducted as approved and as conditioned within the issued permits. Continued coordination will take place with NJDEP and USACE to ensure compensatory mitigation compliance (FEIS Page 4.8-27). Public examination of the proposed final wetlands mitigation plan will occur during the USACE permitting process.
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