Exhibit D: Environmental Risks, Regulations and Permits

Transcription

1 Table 1 lists the major environmental regulations and permits that could be encountered during project development. Table 2 illustrates potential environmental risks associated with the NTE Concession Facility, their likelihood, allocation and relevant agencies and regulations. The Risk Mitigation Strategy is the prescribed action resulting from commitments contained in the project-specific environmental clearance documents (to the extent known limited to Segment 1 and part of Segment 2 from Sta to Sta at present), the strategy being to comply with those requirements. The Risk Sensitivity Analysis discusses the likelihood of an unanticipated issue arising in that environmental category, and describes whether the response would be routine or would trigger permitting or agency coordination requirements, additional costs or possible delays. Any design change requiring a NEPA reevaluation could be another vehicle for litigation. Recent SAFETEA-LU legislation gives the FHWA an option to publish evidence of a NEPA finding and to give potential protestors a 180-day period to intervene, after which time no legal challenges would be heard. It may be prudent to pursue this protection following any EA reevaluation approval. Table 3 presents an environmental risk qualification methodology that will be applied to address the CDA requirements North Tarrant Express Exhibit D 1

2 Table 1: Environmental Regulations and Permits NTE Concession Facility Resource Category/Issue Applicable Regulation(s) Agency Involved Project Action/Permit Required General National Environmental Policy Act (NEPA) Socioeconomics / Environmental Justice Indirect and Cumulative Effects E.O Environmental Justice E.O Limited English Proficiency 's Guidance for Indirect and Cumulative Impacts (ICI) Noise Noise Abatement Criteria Air Quality Clean Air Act (CAA) and amendments EPA Cultural Resources National Historic Preservation Act (NHPA) Texas Antiquities Code (TAC) Texas Historical Commission (THC) State Historical Preservation Officer (SHPO) Advisory Council on Historic Preservation (ACHP) Native American Grave Protection and THC Repatriation Act (NAGPRA) SHPO Various tribal officers Wildlife Migratory Bird Treaty Act (MBTA) U.S. Fish and Wildlife Historical and Recreational Resources/Section 4(f) Properties Threatened/Endangered Species Vegetation Prepare NEPA document reevaluation(s) as necessary to assess changes in the approved document and schematic based on refined design, ATCs, et cetera. Comprehensive review of environmental permits, issues and commitments required for modifications to project design. Prepare Environmental Permits, Issues and Commitments (EPIC) sheets for inclusion in construction plan sets. Continuing public involvement activities may be required in order to inform the public of the project status to ensure that community sensitivities are recognized and addressed, and that commitments are fulfilled. Develop process and procedures for handling public involvement requirements. Ensure that any reevaluations address socioeconomic and environmental justice issues. Ensure any reevaluations address indirect and cumulative effects if changes from environmental clearance document would be substantially different. Based on findings of NEPA process (EA for 1A and 1B Draft Environmental Commitments for 1C), 10 noise workshops for 10 noise walls would be required. Review noise wall commitments to ensure that design is compatible. Coordination with construction crews to ensure that noise issues are minimized in the vicinity of sensitive receivers. Respond to comments or complaints from the public in an appropriate manner (could include on-site monitoring, meetings with affected residents). DFW is a non-attainment area with regard to air quality. Air quality issues and compliance requirements would be addressed in reevaluation document, as appropriate. Determine need for additional survey work on additional properties, Project Specific Locations (PSLs). Coordinate with THC/SHPO under terms of Programmatic Agreement regarding any accidental discoveries. Establish project protocols for issue resolution associated with accidental discoveries. Follow through on any NEPA document commitments related to NRHP-eligible properties, SALs, historical markers, et cetera (Section 106 clearance obtained for ROW and APE associated with EA for 1A and 1B). Perform any necessary cultural resource surveys, evaluations, testing, and mitigation in those areas outside the footprint of the Project ROW shown on the schematics as defined in the original NEPA Approval and within the area of potential effects. NTEMP would coordinate all necessary Antiquities Permits through TxDOT. Antiquities Permits would be obtained from THC for archeological surveys, testing, monitoring, and data recovery, as necessary. Pursue historic Section 4(f) clearances for issues that arise during design phase. Provides framework for dealing with accidental discovery during construction of burial remains. Requires efforts to avoid impacts to migratory birds or nests during the nesting season (March-August). Service (USFWS) May require pre-construction surveys, relocation of nests or fledglings to an approved wildlife rehabilitator. Section 4(f) of the Department of Comply with Section 4(f) mitigation commitments including construction of visual barrier at North Richland Hills Tennis Center Transportation Act as amended U.S. Dept. of Interior ROW acreage replacement of North Richland Hills land Construct metal and brick fence at LD Bell High School as determined through Section 4(f) coordination Perform any additional coordination required to address potential impacts from design changes. Endangered Species Act (ESA) USFWS No potential habitat previously identified. Develop procedures for dealing with accidental discovery during construction. Executive Order on Invasive Species (EO 13112) Review landscape and aesthetics plan to ensure compliance. North Tarrant Express Exhibit D 2

3 Resource Category/Issue Applicable Regulation(s) Agency Involved Project Action/Permit Required Executive Memorandum on Beneficial Review landscaping plan focus on use of native and locally adapted species. Landscaping State Endangered Species Act -Texas Parks and Wildlife Department (TPWD) MOU on Replacement of Unregulated Habitat TPWD Water Resources Federal Clean Water Act (CWA) Sections 9 and 10 of the Rivers and Harbors Act (RHA) U.S. Army Corps of Engineers (USACE) Texas Commission for Environmental Quality (TCEQ) Groundwater/Water Wells Standard Specifications-Item 103- Disposal of Wells Floodplains Local floodplain ordinances Local floodplain Hazardous Materials Airway-Highway Coordination Comprehensive Environmental Response Compensation and Liability Act (CERCLA) Resource Conservation and Recovery Act (RCRA) General due diligence to ASTM standards Federal Aviation Administration (FAA) guidance administrators TCEQ FAA Review commitments regarding replacement of non-regulated habitat. Update reevaluation based on current TPWD state-listed species, MOU requirements as appropriate Riparian vegetation impacted but no mitigation proposed in 1A, 1B, or 1C (mitigation for impacts required for segment farther east) Review CWA Section 404 permit requirements. No pre-construction notification (PCN) documents needed (all impacts fall within NWP limits) for 1A, 1B, and 1C. Coordinate with USACE and TCEQ as appropriate. Assess and address additional permit needs if required due to any design modifications Review mitigation requirements and implement as appropriate. CWA Section 401 (state water quality certification) compliance evaluated by TCEQ monitor temporary and permanent BMPs. Prepare and review Stormwater Pollution Prevention Plan (SW3P) to comply with Section 402 of CWA. Establish protocols to communicate SW3P requirements to construction personnel. Submit Notice of Intent to TCEQ. No crossings of navigable waterways (Sections 9 and 10 of RHA) anticipated. Review plans to ensure that plan is in place to plug and abandon any well in the ROW consistent with TxDOT standards. Coordinate with local floodplain administrators, as necessary, regarding detention requirements and impacts to identified flood elevations and Flood Insurance Rate Maps (FIRMs). Complete Phase 1 ASTM site assessment for properties to be acquired. Establish protocols to deal with discovery during construction. Continue coordination regarding construction of elevated project features in the vicinity of DFW Airport. North Tarrant Express Exhibit D 3

4 The acronym list below defines the abbreviations used in Table ACHP Advisory Council on Historic Preservation 2. ASTM American Society of Testing and Materials 3. BMPs Best Management Practices (Stormwater) 4. CWA Clean Water Act 5. DHHS Department of Health and Human Services 6. DOI Department of the Interior 7. DOT Department of Transportation 8. EA Environmental Assessment 9. ECMP Environmental Compliance Management Plan 10. EJ Environmental Justice 11. ENV Environmental Affairs Division (TxDOT) 12. EPA Environmental Protection Agency 13. EO Executive Order 14. ESA Endangered Species Act 15. ESAs Environmental Site Assessment (Phase I ESA) 16. FEMA Federal Emergency Management Agency 17. FHWA Federal Highway Administration 18. FPPA Farmlands Protection Policy Act 19. FWCA Fish and Wildlife Coordination Act 20. HUD Housing and Urban Development (Department) 21. ICI Indirect and Cumulative Impacts 22. IP Individual Permit (USACE) 23. LEP Limited English Proficiency 24. LPST Leaking Petroleum Storage Tank 25. MBTA Migratory Bird Treaty Act 26. MOA Memorandum of Agreement 27. MOT Maintenance of Traffic 28. MOU Memorandum of Understanding 29. MS4 Municipal Separate Storm Sewer System 30. NAAQS National Ambient Air Quality Standards 31. NCTCOG 32. NEPA National Environmental Policy Act 33. NHPA National Historic Preservation Act 34. NRCS Natural Resources Conservation Service 35. NRHP National Register of Historic Places 36. NWP Nationwide Permit (USACE) 37. PA Programmatic Agreement 38. PCN Pre-Construction Notification 39. PSL Project Specific Location 40. SHPO State Historic Preservation Office 41. SW3P Storm Water Pollution Prevention Plan 42. TAC Texas Antiquities Code 43. TCEQ Texas Commission on Environmental Quality 44. THC Texas Historical Commission 45. URARPAPA Uniform Relocation Assistance and Real Property Acquisition Policies Act of USACE United States Army Corps of Engineers 47. WOTUS Waters of the United States Table 2: Potential Environmental Risks Before/ NTP 2 Risk Description Potential Consequences Likelihood Risk Allocation Risk Mitigation Strategy Risk Sensitivity Analysis Wetlands/WOTUS (CWA - 404, USASCE) Delay. Based on EA for Segment 1 and Draft Environmental Commitments for part of Segment 2, no Individual Permits or PCN required. If permits required by Developer changes, assume minimum 45 days for USACE review of PCN IP total estimated delay-- up to 18 months. Medium Developer Review design to ensure that permitting assumptions were correct. Coordinate with Enviro. Compliance staff regarding construction methods in creeks/drainages. Anticipate low incidence of additional construction impacts at WOTUS to require subsequent 404 NWP (no PCNs). State Water Quality Certification (CWA - 401, TCEQ with USACE review) Obtain state 401 certification concurrent with 404 processing, if PCN or IP become necessary due to design changes. Temporary BMPs required for erosion and sedimentation control Permanent BMPs for water quality (Total Suspended Solids) required. File notice of intent, prepare and implement SW3P, obtain General Permit for Construction. Comments rarely received on submittal assume 30 days. Medium Developer Include temporary BMPs for erosion and sedimentation control, and permanent BMPs for Total Suspended Solids to comply with Section 401. Comply with state water quality certification. Include temporary BMPs for erosion and sedimentation control, plus permanent BMPs for Total Suspended Solids to comply with Section 401 select BMPs that do not require additional right-ofway. Anticipate recurring issues requiring field inspector vigilance and continuous upkeep. Prepare SW3P, review MS4 requirements. Anticipate recurring issues requiring field inspector vigilance and continuous upkeep. Before/ SW3P (CWA TPDES - TCEQ) High Developer Comply with TPDES General Permit for Construction including SW3P BMPs.. North Tarrant Express Exhibit D 4

5 Before/ NTP 2 Risk Description Potential Consequences Likelihood Risk Allocation Risk Mitigation Strategy Risk Sensitivity Analysis State-Listed Threatened/Endangered Species and non-regulated habitat (TxDOT/TPWD - MOUs/MOAs on State Listed Species and Unregulated Habitat) Federally Listed Threatened/ Endangered Species and MBTA (ESA/FWCA USFWS) Based on EA for Segment 1 and Draft Environmental Commitments for part of Segment 2, no permits are anticipated. No compensatory mitigation is proposed for impacts to riparian vegetation at Sulphur Branch. For reevaluation processing, 45 day NEPA document review for TPWD. Based on EA for Segment 1 and Draft Environmental Commitments for part of Segment 2, no T&E permits needed. No additional review of reevaluation anticipated. Low Developer / TxDOT Minimize clearing of vegetation restore vegetation after earthwork. None anticipated urban area with few listed species. Low Developer Comply with MBTA and avoid clearing of trees and brush during nesting season (March to August) or monitor any clearing of vegetation for signs of active nests during nesting season. Given unpredictable timeline for completing ROW acquisition, plan to stage vegetation clearing for construction where necessary to minimize or eliminate clearing between March and August. Consider right of use agreements with property owners to facilitate clearing prior to acquisition. Low likelihood of additional noise walls and different locations. Noise Impacts and Mitigation (TxDOT's Guidelines for Analysis and Abatement of Highway Traffic Noise (TxDOT and FHWA) Delay, additional cost if Developer-proposed modifications result in the need for an additional noise wall. For each currently proposed noise barrier (2 in Segment 1 and 8 in part of Segment 2), noise workshop with affected property owners can occur at any time--a vote would be taken on whether or not the benefited landowners desire for a noise wall to be built. File well capping log with TxDOT and TWDB. Minimal time issues. High Developer Build 2 proposed noise walls (Segment 1) and 8 proposed noise walls (within Segment 2 limits and as specified in Draft Environmental Commitments document), if approved at workshops (likely). Water Wells (TxDOT Standard Specs for Construction and Maintenance of Highways -Item 103 Disposal of Wells - TWDB State Well Inventory, TxDOT) Historic Properties, Archeological Sites, projects affecting Tribal lands ( 106 of the NHPA-also requires federal agencies to coordinate with Tribal leaders if Tribal lands are affected TAC - TxDOT ENV, THC/SHPO, FHWA, Tribal leaders if applicable PA = TxDOT ENV, THC, FHWA, ACHP MOU between TxDOT and THC) Low Developer Cap wells according to Item 103 TxDOT Standards and Specs. Low likelihood of encountering issues. Before/ Delay, additional cost. Section 106 coordination complete for Segment 1 according to EA. No information available for Segment 2. Any additional properties would need to be surveyed and cleared by the THC/SHPO prior to construction. Potential for additional discovery of cultural resources. High likelihood if large PSLs are acquired in riverine settings. TAC survey permit for archeological sites would have quick turnaround (usually 1 week). Report review is generally timely (within 30 days of submittal). Historic review can generally be completed under the PA (by ENV) without submittal to the SHPO (unless NRHP-eligible sites are identified). Low Developer (Off-site PSLs)/ TxDOT (within ROW) If an historic property or archeological site is encountered during construction, Developer shall cease work and initiate post-review discovery procedures under the PA and MOU TxDOT approval and notification required to recommence work. A property discovered during construction within the project ROW shown on the schematics in the original NEPA approval that was missed during the NEPA review could have a negative effect on the schedule (6-12 months)--suggest language be in the proposal to ensure that TxDOT would be responsible for that risk. Exclude all costs dealing with historic properties within the project ROW shown on the schematics in the original NEPA approval. Exclude any testing/data recovery costs that may be incurred for archeological clearance work within proposed ROW. Propose predictive model for site incidence at identified PSLs, to determine risk of encountering unanticipated sites prior to binding agreements with landowners. North Tarrant Express Exhibit D 5

6 Before/ NTP 2 Risk Description Potential Consequences Likelihood Risk Allocation Risk Mitigation Strategy Risk Sensitivity Analysis Hazardous Materials (ASTM Standard ESA standards to be used TCEQ/EPA = not regulation per se but due diligence process) Delay, additional cost. Potential to encounter residual hydrocarbons (leaking underground storage tanks) during construction. Asbestos paint at 2 bridges. Coordinate with TxDOT ENV to approve cleanup process relevant regulatory agency depending on contaminant and nature of hazardous materials problem. High Developer/ TxDOT Comply with Hazardous Materials Management Plan [Earthtech lead] accidental discovery during construction could affect cost- -suggest excluding responsibility from Developer scope. Phase I ESAs recommended for (at a minimum) UST/LPST sites according to database corridor search. Hazardous material/ hydrocarbon discovery during construction is not uncommon in urban areas where substantial utility excavation or drilling of bridge columns is anticipated. Review geotech logs and groundwater depth to evaluate potential areas of concern. Provide Spanish language translation for future public involvement, if requested. Before/ E.O Federal Actions to Address EJ in Minority and Low- Income Populations DHHS Poverty Guidelines E.O Improving Access to Services for Persons with LEP (TxDOT/FHWA oversight) Indirect and cumulative project effects (TxDOT's Guidance for Indirect and Cumulative Impacts - TxDOT/FHWA) Based on EA for Segment 1 and Draft Environmental Commitments for part of Segment 2, project complies (advanced right-of-way acquisition underway for properties in Segment 2 in part to comply with EJ guidance). Ensure that any additional public involvement is made available to non- English speakers. No timeline issues anticipated. Low Developer None anticipated beyond continual public outreach and ensuring that TxDOT completes Advanced Right-of-Way acquisition program. None anticipated. ICI analysis appears to be adequate in EA for Segment 1. If inadequate ICI evaluation in current NEPA document for Segment 2, reevaluation may be expected to remedy that deficit (risk). Low TxDOT None anticipated beyond ECMP compliance. If concerns about system-wide effects of tolling raised by TxDOT/FHWA, a reevaluation could be required to add a system-wide analysis of tolling and equity/environmental justice issues. A clear exclusion should be included in proposal. Before/ Publicly-owned recreational resources historic age properties ( 4(f) of the DOT Act 1966, Sec (f) (49 U.S.C. 303) - FHWA/US DOI) Additional coordination with the City of North Richland Hills will likely be required. Based on Segment 1 EA, commitments appear to be established for Section 4(f) mitigation. For part of Segment 2, 1,800 linear feet of metal fence with brick posts is required to be constructed at LD Bell High School as Section 4(f) mitigation. Delay, additional cost if Developer-directed changes result in impacts. High Developer/ TxDOT/Local Governments Avoid additional impacts to publicly-owned recreational resources, historic sites or NRHP properties. Build visual barrier adjacent to Tennis Center. Acquire mitigation property. Coordinate with City regarding upgrade of center median. Construct 1,800 linear feet of specific fence type as established in Section 4(f) mitigation documentation at LD Bell High School. 4(f) and 6(f) impacts anticipated. Commitment to build 800'x10' "visual screen" adjacent to Tennis Center, allow City to pay for upgrade of median barrier to 6' visual barrier. Property replacement for Tennis Center "take" suggested near Community Center (<1 ac). Construct 1,800 linear feet of specific fence type as established in Section 4(f) mitigation documentation at LD Bell High School. Anticipate commitment to coordinate with local floodplain administrators. Floodplains (Executive Order Floodplain Management - FEMA, Local Floodplain Administrator) Relocations/Displacements (Civil Rights Act of 1987, URARPAC of 1970, HUD Act of TxDOT Relocation Assistance) Coordination with local administrators should be completed prior to the initiation of construction activities. Assume CDC coordination process completed if applicable for Segment 1 or 2). No additional permits anticipated. Parcel by parcel process-- potential for condemnation hearings appears to be relatively low. Advanced Right-of-Way acquisition process underway for 87 residences within part of Segment 2 between and Low Developer/ TxDOT/Local Government Follow SW3P provisions and requirements, any local floodplain commitments. Before/ Low Developer/ TxDOT Provide relocation assistance in conjunction with ROW acquisition. Follow TxDOT guidance. Slower than anticipated ROW acquisition due to excessive condemnations could impact construction phasing, initial mobilization, MOT. Advanced right-of-way acquisition program for part of Segment 2 will reduce delays. North Tarrant Express Exhibit D 6

7 Before/ NTP 2 Risk Description Potential Consequences Likelihood Risk Allocation Risk Mitigation Strategy Risk Sensitivity Analysis FPPA of 1981 AD 1006 Coordination with NRCS None anticipated Low Developer None anticipated. None anticipated. Air Quality (NAAQS TCEQ) Low potential for reevaluation documents to require revisions to air quality analysis (unless added capacity design change). Low TxDOT/ NCTCOG Requirements would include standard dust control practices. Additional analysis in reevaluation document(s) only anticipated if added capacity proposed (not the case at present). None anticipated. North Tarrant Express Exhibit D 7

8 Table 3: Environmental Risk Qualification Environmental Risks Wetlands/WOTUS State Water Quality Certification Stormwater Pollution Prevention Plan State Listed Threatened/Endangered Species and Nonregulated Habitat Federally-Listed Threatened/ Endangered Species and MBTA Noise Impacts and Mitigation Water Wells Historic Properties, Archeological Sites, Projects Affecting Tribal Lands Hazardous Materials Environmental Justice/Limited English Proficiency Indirect and Cumulative Impacts Section 4(f) Resources (Publicly-owned Recreational Resources; Historic Age Properties) Floodplains Relocations/Displacements Farmlands Air Quality North Tarrant Express Exhibit D 8