Unrted States
bnvircnmentai Protection
Office of
Soiio: Waste -r.a
Emercencv -?esc
&EPA ECO Update
Office of Emergency and Remedial Response
Hazardous Site Evaluation Division (OS-230)
Intermittent Bulletin
Volume 1, Number 3
The Role Of Natural Resource
Trustees In The Superfund Process
This Bulletin is intended to help Reme-
dial Project Managers (RPMs) and On-Scene
Coordinators (OSCs) work with natural resource
trustees during site assessment and remediation.
It explains the authority and responsibilities of
trustees, and the responsibilities of RPMs and
OSCs with respect to trustee issues. The goal of
this document is to help reduce delays and
ensure compliance with'relevant statutes by
increasing understanding of trustee issues as
they pertain to the Superfund program.1
Authorities
CERCLA
The Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as
amended by the Superfund Amendments and Reau-
thorization Act (SARA) (Part 101, section 16), defines
natural resources as "land, fish, wildlife, biota, air,
water, ground water, drinking water supplies, and
other such resources." CERCLA designates the Presi-
dent of the United States as the trustee for Federally
protected or managed natural resources on behalf of
the public and requires the President to:
Assess damages from releases of hazardous sub-
stances,
Pursue recoveries of damages and costs, and
Use the sums recovered to restore, replace, or
acquire the equivalent of the injured resource
(Section 107 (f)(l) of CERCLA).
In This Bulletin
Authorities 1
Who Are The Natural Resource Trustees? 2
What Is a Trust Resource? 5
Trustee Functions 6
How to Work With Trustees 9
Conclusion 11
1 All sections of this Bulletin have benefitted greatly horn
material obtained from the Region 10 Natural Resource Trustee
Notification and Coordination Package (September 1989). The
Package was prepared by the National Oceanic and Atmo-
spheric Administration Coastal Resource Coordinator in coop-
eration with the Department of Interior Regional Environmental
Officer and the Region 10 Natural Resource Coordinator. Noti-
fication and coordination packages are also available in many
other EPA Regions.
ECO Update is a Bulletin series on ecological assessment of Superfund sites. These Bulletins serve as supplements to Risk Assessment
Guidance for Superfund, Volume II Environmental Evaluation Manual (EPA/540-1-89/001). The information presented is intended as
guidance to EPA and other government employees. It does not constitute rulemaking by the Agency, and may not be relied on to
create a substantive or procedural right enforceable by any other person. The Government may take action that is at variance with
these Bulletins.
-------
i nese functions are earned out by various
trsustees. as discossed later in this Bulletin.
The law also directs EPA to coordinate with
natural resource trustees. This coordination includes:
Prompt notification of potential injuries to natu-
ral resources at Superfund sites and incidents
[§104(b)(2)l;
Coo'rdinatibnof assessments, investigations, and
planning [§104(b)(2)];
Notification of negotiations with potentially re-
sponsible parties (PRPs), if the release of hazard-
ous substances may have resulted in injuries to
trust resources (§122(j)(l)]; and
Encouraging trustees to participate in the nego-
tiations [§122(j)(D].
National Contingency Plan
AscaUedformOERCLA section 107(f),subpart
G of the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP)2 designates the
heads of authorized Departments and agencies as
trustees for natural resources and defines their juris-
diction. The NCP also spells out the responsibilities
of the trustees following notification or disco very of
a natural resource injury, loss, or threat Depending
on the stage in the remedial process and the nature of
the injury, loss, or threat, the trustees may do one or
more of the following, or "other actions as appropri-
ate":
(1) Conduct a preliminary survey of the area af-
fected by the discharge or release to determine if
trust resources under their jurisdiction are, or
potentially may be, affected;
(2) Cooperate with the OSC/RPM in coordinating
assessments, investigations, and planning;
(3) Carry out damage assessments; or
(4) Devise and carry out a plan for restoration,
rehabilitation, replacement, or acquisition of
equivalent natural resources.3
The NCP describes the trustees' authority as
including, but not limited to, the following actions:
(1) Requesting that the Attornev General seek : :rr-
pensaaon from the responsible rarr.es :cr :r.c
damages assessed and for the costs or an assess-
ment and of restoration planning; and
(2) Participating in negotiations between the United
States and potentially responsible parties (PRPs)
to obtain PRP-financed or PRP-conducted as-
sessments and restorations for injured resources
or protection for threatened resources and to
agree to covenants not to sue, where appropri-
- ate.4
The NCP also defines EPA responsibilities
with respect to natural resource coordination. EPA is
required to cany out the following notification and
coordination activities:
Make available any information that can assist
trustees in determining injuries to natural re-
sources [§300.160(a)(3)l; and
Coordinate with trustees in requiring PRPs to
comply with CERCLA information requests
[§300.615(d)(3)l. ~
In addition, EPA may:
' Issue administrative orders to pursue injunctive
relief against PRPs at the request of the trustee
[§300.615(e)(l)];and
Conduct removal or remedial actions at the re
quest of the trustee (§300.615(e)(2)].
Who Are The Natural Resource
Trustees?
By Executive Order 12580 and in the NCP, th
President has designated certain executive officers a
Federal trustees for natural resources. They indud
the Secretaries of the Departments of Interior, Con*
merce, Defense, Energy and Agriculture. In additioi
SARA Section 107(d) requires the Governor of eac
State to designate State trustees; most Covernoi
have done so. Indian tribes also are trustees for the
resources, functioning much as State trustees for n
J 40 CFR Part 300.
1 40 CFR 300.615.
« 40 CFR 300.615.
March 1992 Vol. 1, No. 3
ECOUpdai
-------
sources on or related to meal iar.cs or for resources to
which thev other*.vise may have treaty rights-. Figure
1 surninahzes the organization of trustee authority,
as discussed below.
Federal Trustees
Federal trustees are designated because of (a)
statutory responsibilities with regard to protection or
management of natural resources, or (b) manage-
ment of Federally owned land, or (c) both.
Secretary of Commerce
The NCP desig-
nates the Secretary of Com-
merce as trustee for
... natural resources man-
aged or protected by the De-
partment of Commerce or
by other federal agencies
and that are found in or
underwaters navigable by
deep draft vessels, in or
under tidally influenced
waters, waters of the con-
tiguous zone, the exclusive
economic zone, and the
outer continental shelf, and
in upland areas serving as
habitat for marine mam-
mals and other protected
species Examples of the
Secretary's trusteeship in-
clude marine fishery re-
sources and their support-
ing ecosystems; anad.ro-
mous fish [saltwater fish
that return to freskmtter
streams to breed]; certain
endangered species and
marine mammals; and Na-
tional Marine Sanctuaries
and Estuarine Research Re-
serves.5
. ne secretary orXorr.merce has^ele^:;:;-.; :r
Administrator of the N'adonai Oceanic and Acrrx
spheric Administration (N'OAA) to act as the De-jar
ment of Commerce natural resource trustee. To r'acl
tate coordination between NOAA and EPA, XOA.
has placed Coastal ResourceCoordinators in ail of th
coastal EPA Regional Offices.
40 CFR 300.600.
Natural Resource Trustees
Figure 1
Federal
State
Indian Tribes
State Governor
designated:
State Official
Tribal Chairman
-------
a sreciric sue. the sire rr.ar.aser should contact one of
these orfices or their counterpart Stace agency.
Indian Tribes
.-.The tribal chairman, the head of the govern-
ing body of an Indian tribe, or a person selected by the
chairman or the head of the governing body, may act
as trustee on behalf of the tribe. This individual is
trustee for the natural resources belonging to, man-
aged by, controlled by, or appertaining to the tribe.
At the tribe's request, the DOI Bureau of Indian
Affairs may act as trustee on the tribe's behalf. If there
is any doubt as to whether there is an Indian tribal
trustee for a specific site, or who that trustee is, the site
manager should contact the DOI Regional Environ-
mental Officer.
Natural resources include "land,
fish, wildlife, biota, air, water,
ground water, drinking water
supplies, and other such re-
sources."
What Is A Trust Resource?
CERCLA Section 101 (16) defines trust re-
sources to include:
... land,fishfwildlifefbiota,air,water,groundwater,
drinking water supplies, and. other such resources
belonging to, managed by, held in trust by, appertain-
ing to, or otherwise controlled, by the United States
(including the resources of the exclusive economic
zone defined by the Magnuson Fishery Conservation
and Management Act of 1976), any state or local
government, any foreign government, any Indian
tribe, or if such resources are subject to a trust
restriction on alienation, any member of an Indian
tribe.
; rust resources include beer. ?re::d< _r
places. Fish, wildlife, mi era tor,- birds, and rru-r.:
mammals are ail mentioned in CERCLA and the XC
as trust resources, as are National Marine Sanctuari<
and Estuarine Research Reserves. DOI protects n.
only endangered species but also National Parks an
Monuments. The Departments of Agriculture, D<
fense, and Energy are trustees for natural resource
that occur on their lands. In some cases, feder
agencies can be co-trustees for a particular natur;
resource. Federal and State agencies also are En
quently co-trustees for natural resources.
Living Resources
In designating the Secretaries of Commen
and Interior as natural resource trustees, the NC
gives examples of the types of resources that fa
under the Secretaries' trusteeship. Included amor
these are marine fishery resources, anadromous fis
endangered species, migratory birds, and mam
mammals. In specifying marine fishery resources;
trust resources, the NCP adds the phrase "and the
supporting ecosystems." This acknowledges the fa
that protecting a living resource entails not on
preventing or mitigating contamination of the pn
tected species itself but also ensuring the continue
availability and quality of that species' habitat ar
food sources.
CERCLA and the NCP use the comprehe
sive term "biota" and the specific term "fish [am
' wildlife" to define the living resources covered und
Federal trusteeship. The NCP cites more specii
types of resources such as anadromous fish, enda
gered species, and marine mammals only as e
amples of trust resources, not as a definitive 1L
The dear implication of these references is that t!
definition of what is a trust resource is left to tl
trustee. To an extent trustees' responsibilities may -
defined by the various statutes that they are chargt
with enforcing or implementing, including the ma
agement of land under their control Within t
bounds of those statutes and. land-management i
sponsibilities, trustees may interpret their CERCI
mandate to include whatever biota "and their si:
porting ecosystems" that the trustees consider appi
priate. With regard to specific sites, the EPA s
manager should let the trustee agencies detenru
ECO Update
March 1992 VoL 1. Ne
-------
vherher rrusc resources ^re present jr.a rcter.tiaily
affected bv a site.
Land, Air, Water, and Mineral Resources
In addition to living resources, CERCLA and
the NCP list "land, . . . air, water, ground water,
drinking water supplies, and other such resources"
as responsibilities of natural resource trustees. These
could include, for example, minerals controlled by
the Department of the Interior's Bureau of Land
Management, rivers protected under the Wild and
Scenic Rivers Act, coastal zone areas regulated or
administered by NOAA under the Coastal Zone
Management Act, and air quality over a National
Park. It is also important to remember that the phrase
"supporting ecosystem," as used in the NCP, implies
that protection of biotic resources often entails ac-
tions aimed at nonliving components of the environ-
ment. In fact, it is often difficult to separate living
from nonliving components, especially when soil,
sediments, and surface water are involved. As with
living resources, the determination is best left to the
appropriate Federal, State, or Indian tribal represen-
tative as to whether a given nonliving resource is a
trustee responsibility.
Natural resource trustees have
a broad mandate to protect and
restore resources under their
jurisdiction. Therefore, the
responsibilities of the trustees
are not restricted to any single
point in the Superfund process.
Trustee Functions
Natural resource trustees have a broad man-
date to protect and restore resources under their
jurisdiction. Therefore, the responsibilities of the
trustees are not restricted to any single point in the
Superfund rrocess. CIRC IA 5ec:ier, ".04 '?-': ::^
for coordination between EPA and cruscees on 'as-
sessments, investigations, and planning''; in other
words, at virtually ail stages of the process. This
requirement applies to both the removal and reme-
dial actions, and to enforcement and Fund-lead sites.
Trustees' primary responsibilities include:
Preliminary Natural Resource Survey (PN"RS)
Technical Assistance
Natural Resource Damage Assessment (NRDA)
Covenant Not to Sue
Preliminary Natural Resource Survey
(PNRS)
In accordance with the NCP §300.615 (c)(l),
and through Memoranda of Understanding between
EPA and both DOI and NOAA, EPA can request a
representative of one of these agencies toj:onduct a
PNRS or another form of preliminary sitesurvey. The
request usually originates with the RPM, but it also
may come through a designated EPA Natural Re-
source Coordinator, or a Section or Branch Chief.
A PNRS consists of a site survey and a brief
report identifying the natural resources, habitat types,
endangered or threatened species, and any potential
adverse effects or injury to trust resources. The
PNRS, which may be funded by EPA, is an effective,
low-cost screening tool to determine if trust re-
sources are involved at a site. It may be conducted at
any stage of the remedial process, from pre-listing to
pre-Record of Decision (ROD).
The earlier the PNRS information is available,
the more likely it can be used to ensure that remedial
alternatives are selected which effectively protect
natural resources of concern to trustees. If the PNRS
is conducted before RI scoping, it may provide infor-
mation useful for sampling design and other aspects
of the RI/FS ecological assessment If conducted after
completion of the RI and during the evaluation of
remedial alternatives for the FS, the PNRS may help
the trustees develop their position on a covenant not
to sue. Site managers should consult with trustee
representatives in their Region to determine the most
appropriate timeCs) for performing the PNRS.
March 1992 Vol. I, No. 3
ECO Update
-------
Technical Assistance
Natural Resource Damage Assessment
While not a trustee responsibility under CER-
CLA, several trustee agencies offer technical assis-
tance at Superfund sites. .As well as furthering EPA's
ecological assessments, "such activities support the
trustees' .larger role in safeguarding natural resources.
Advice and technical assistance from trustee repre-
sentatives can take many forms. In most EPA Re-
gional Offices, one or more trustee representatives
serve on Biological TechnicaT Assistance Groups
(BTAGs)/ which provide review and advice on eco-
logical issues in the assessment and remediation of
sites. Usually, trustee representatives are also avail-
able for individual consultation on technical issues.
Through Interagency Agreements, trustee agencies
often perform specific tasks relating to ecological
assessment of a site, such as field surveys, toxicity
testing, and detailed examination of field-collected
organisms. FWS staff or NOAA Coastal Resource
Coordinators in coastal EPA Regional Offices may
also act as a source of technical assistance for ecologi-
cal assessments in wetland and aquatic habitats.
It is important to understand that technical
assistance does not in any way commit a trustee to a
covenant not to sue. Furthermore, review of site
activities by trustees serving on the BTAG is not a
substitute for notification of the trustees.
Natural resource damages are
monetary payments "for injury
to, destruction of, or loss of
natural resources, including the
reasonable costs of assessing
such injury, destruction, or
loss..."
If remedial actions are judged insufficenc to
protect and restore natural resources injured by re-
leases from a Superfund site, or if the use of a natural
resource is lost or curtailed, natural resource trustees
may seek to collect damages from responsible parties.
Natural resource damages are monetary payments
"for injury to, destruction of, or loss of natural re-
sources, including the reasonable costs of assessing
such injury, destruction, or loss resulting from such a
release."8 These payments are considered compensa-
tion, not punitive damages, and are intended to cover
the past injury and residual costs or losses beyond
whatever restoration can be achieved through
remediation. Only responsible party funds can be
used to pay natural resource damages; Superfund
monies cannot be used for this purpose.
EPA site managers must recognize that the
natural resource damage assessment process is the
responsibility of the trustee agencies, noFof EPA. In
addition, EPA is not required to collect or fund the
collection of all the information needed to carry out a
natural resource damage assessment.._ In fact EPA
cannot collect information solely for the purpose of a
natural resource damage assessment However, it is
equally important to remember that CERCLA and
the NCP require prompt notification of, and close
coordination with, the trustees. Coordination entails
timely exchange of information between EPA and the
trustees to ensure the technical adequacy of EPA's
selected remedy with respect to natural resources.
Selection of remedial alternatives that adequately
protect and restore natural resources will in most
cases reduce the likelihood of expensive and time-
consuming natural resource damage proceedings
which could delay negotiated settlements.
The Natural Resource Damage Assessment
(NRDA) process:
Determines whether injury to, or loss of, trust
resources has occurred;
7 These groups are sometimes known by different names, depending on the Region, and not ail Regions have established BTAGs.
Readers should check with the appropriate Superfund manager for the name of the BTAG coordinator or other sources of technical
assistance in their Region. A more complete description of BTAG structure and function is available in The Rate of BTAGs in Ecological
Assessment (ECO UpSteVoL I. No. I).
1 CERCLA Section 107(a)(4XD).
ECO Update
March 1992 Vol. 1. No. 3
-------
Ascertains tne rr.3gr.ir.ide or the injury- or loss;
Calculates the dollar value or the injury, loss.
and/or cost of restoration; and
Develops a restoration plan.
EPA can facilitate the resolution of natural
resource damage issues during the RJ/FS by coordi-
nating"with trustees to ensure that data useful to both
EPA and the trustees are collected. When properly
designed, the ecological assessment portion of the
RI/F5 may help to determine whether
A discharge or release has occurred,
Trust resources have been affected,
Injury has occurred or is likely, and
Planned remedial responses will or will not be
sufficient to protect or restore the resources.
Collection of this information serves the CER-
CLA requirement that EPA undertake investigations
to identify the extent of danger to the environment
from the release of contaminants. It also serves the
additional requirement in CERCLA Section 104(b)(2)
that EPA coordinate assessments, investigations, and
planning with Federal and State trustees. A well-
designed ecological assessment, then, is part of the
process of determining the extent and degree of con-
tamination. It is an essential part of the decision
making process as to the need for and scope of any
remedial action. In addition, it can provide the natu-
ral resource trustees with information to vise during
their evaluation of possible injuries to trust resources.
Covenant Not to Sue
A trustee may choose to sue a responsible
party for the monetary damages calculated in the
MRDA plus the cost of conducting the assessment
Although this decision is wholly that of the trustee,
EPA's interest in the issue can be significant if nego-
tiations with responsible parties are contemplated or
in progress.
CERCLA Section 122(p requires EPA to notify
Federal trustees of any negotiations regarding the
release of hazardous substances that may have re-
sultedmnahj^al resource mjury,whileSectionl22(p(l)
ra\]g on EPA to encourage Federal trustees to partici-
pateinnegotiationswithresponsibleparties. In those
cases where trustees believe that they will need more
information than uPA proposes to coile;: .is rar:
the ecoiogicaiassessment, they can negotiate with:
responsible parties at the same time as EPA neg-
ates for the RI/FS. Note that EPA does not have c
authority to negotiate on behalf of the trustees.
addition, if in the settlement process the responsit
party requests a covenant not to sue for narui
resource injuries, only the natural resource trustee
trustees, through the Department of Justice, can gra
such a covenant
CERCLA Section 122(j)(2) provides the lr
between remedial action decisions and the covena
not to sue:
The Federal natural resource trustee may agree to
such a covenant if the potentially responsible party
agrees to undertake appropriate actions necessary to
protect and restore the natural resources damaged by
such release or threatened release of hazardous sub-
stances.
In other words, trustee concurrence wit!
settlementand, if appropriate, granting a coven;
not to sueis most likely to be facilitated if
selected remedial action will protect and restore tr
resources. However, it should be~noted~that a c<
enant is not necessary for every Operable Unit a
site, so long as the Consent Decree for the Remec
Design/Remedial Action (RD/RA) retains the st
dard Reservation of Rights. The covenant is neec
if the PRP refuses to accept the Reservation a
requires a covenant not to sue as a condition
settlement In these circumstances, only the trust
can agree to the covenant
The trustee's first priority is to
see that remedies are selected
which protect and restore trust
resources.
March 1992 Vol. I, No. 3
ECO'Uj
-------
How To Work With Trustees
As mentioned above, natural resource dam-
ages are considered residual damages. The trustee's j
first priority is to see that remedies are selected which ]
protect and restore trust resources. To be reasonably j
confident of obtaining a covenant not to sue, a site j
manager should remain mindful of four important '
responsibilities during the remedial process:
Adherence to the notification and coordination
pro visions of CERCLA, the NCP, and any Memo-
randa of Understanding between EPA and the
respective trustee;
Consultation with the BTAG or its equivalent in
the design and implementation of the ecological
assessment portion of the RI/FS;
Consultation with trustees on recommendations
for remedial alternatives; and
Compliance with environmental applicable or
relevant and appropriate requirements (ARARs).
Notification
When to Notify
CERCLA Section 104(b)(2) requires EPA to
promptly notify natural resource trustees of the po-
tential for injuries resulting from releases under in-
vestigation. Section 122(j) requires notification re-
garding pending negotiations with potentially re-
sponsible parties. In practice, site managers should
treat notification as a process rather than a onetime
event. As the Superfund process unfolds at a site, the
RPM will become aware of which trustees may have
an interest in the site (see the following section, Whom
to Notify). Site managers should plan on notifying
trustees of such key events as:
Site discovery,
Preliminary Assessment/Site Inspection,
Proposal of a site for inclusion on the National
Priorities List,
Initiation of RI/FS negotiations,
Receipt of the draft and final RI/FS workplans,
Receipt or" the draft RI rr or .ir.v r^r- n:--
ierim product such as the ecological assess
portion of the RI/FS,
Final RI/-FS,
Completion of the draft ROD,
Final ROD,
Initiation of RD/RA negotiations, and
Receipt of the draft and final RD / RA wo rkp la
Notification should be in the form of a let
indicating what activity is taking place or what pn
uct is available. It could include copies of relev.
documents for review, an invitation to attend a me
ing, or a request for specific action (such as review
a document).
Whenever trustees are expected to take so
action, it is important that notification take place ea
enough to allow the trustee to respond in a tim
manner, and that a date is stated by which comme
or actions are required. Notification should
viewed not only as compliance with statutory
quirements, but as insurance toward keepi
projects on time and within budget
Whom to Notify
As discussed earlier, trusteeship has been delega
to five Federal Departments: Interior, Commei
Agriculture, Defense, and Energy. The site mana;
will need to decide which trustees to notify regardi
a specific site, based on where the site is located, w
habitats or Federally managed lands are potentia
exposed, and what species are potentially expose
The descriptions of each Department's trt
eeship, also discussed earlier in the Bulletin, can
used as a sort of checklist as to whom to not
However, since no checklist can be exhaustive,
general rule should be: When in doubt, notify. If
site is not relevant to a particular agency's trust
ship, the trustee representative will inform the :
manager and no further notification will be need
The site manager should request that the tnif
provide a written response as to their interest, or L
of interest, in a site.
A second general rule is, Always notify
Department of Interior trustee representative a
if there is one in your Region, the NOAA Coa
Resource Coordinator. These two agencies h
responsibility in a wide variety of Superfund si
For example, since migratory birds can utilize aln
ECO Update
-------
ar.v terrestrial or acua tic habitat. DC! may be a trustee
at almost any site. In sedition, an aquatic habitat that
is no longer fished may still come under the jurisdic-
tion of a natural resource trustee. Also, as described
earlier in this bulletin, the trusteeships of the two
Departments overlap considerably (e.g., anadromous
fish, marine mammals, and.endangered species). DOI,
N'OAA, and State/.tribal representatives will be the
best judges -as: to whqse trust resources are at issue
with regard to a particular site.
If there is any reason to suspect that the site
may affect National Forests, the site manager should
notify the USDA trustee representative. If property
controlled by the U.S. Army, Navy, Air Force, or
Defense Logistics Agency is potentially exposed to
contaminants, the Department of Defense trustee
representative should be notified. If the site contami-
nants might affect lands or resources controlled by
the Department of Energy, that agency's trustee rep-
resentative should be notified. EPA Headquarters,
DOI, or NOAA can assist in identifying the appropri-
ate individuals in each of these agencies for notifica-
tion purposes.
CERCLA also requires notification of State
trustees, and in addition the site manager should
notify Indian trustees where a site potentially affects
natural resources on Indian lands. Often, Federal
trust resources are a co-trusteeship with States and
Indian tribes. Most States have designated threat-
ened or endangered species that do not appear on the
Federal list Trusteeship for other resources may be
limited to the State if their geographic distribution or
special value places them entirely within the State's
boundaries or jurisdiction. The site manager should
contact appropriate State liaisons to determine what
State trustee agencies to notify regarding a site. As
discussed earlier, EPA Headquarters,DOLandNOAA
all maintain a list of State trustees, which may be
helpful in identifying appropriate offices for notifica-
tion. The DOI representative also should be able to
help site managers contact Indian tribal trustees or
the Bureau of Indian Affairs if tribal trust resources
are potentially affected.
Coordination
Coordination involves a two-way communi-
cation between EPA and the trustee The specific
reasons for information exchange and coordination
with natural resource trustees are to:
Assist the site manager in determining the .eth-
nical adequacy of ecological investigations.
Assist the trustee in evaluating the acraai or
potential injury to trust resources, and
Identify remedial alternatives that include ap-
propriate actions to protect and restore natural
resources (and thus minimize the need to re-
cover residual damages).
Although coordination with trustees is a re-
quirement, site managers should also view it as an
opportunity. Operating through the BTAG or di-
rectly with the trustees, the site manager can obtain
expert advice and review of work plans, data, and
reports. This can be invaluable for selecting environ-
mentally protective remedies that allow projects to
proceed on schedule. It is important to emphasize
that ecological studies conducted as part of the RI/FS
are not intended as preliminary work toward a Natu-
ral Resource Damage Assessment Nonetheless, a
properly designed ecological assessment may go a
long way toward resolving questions that might oth-
erwise require lengthy NRDA-related proceedings
and delay or prevent a comprehensive settlement
with responsible parties.
At a minimum, the site manager should meet
the coordination requirements of CERCLA by solicit-
ing review comments from trustees on:
The draft and final RI/FS work plans,
The draft RI and FS,
The final RI and FS,
The Proposed Plan for remediation,
The draft ROD,
The final ROD, and
TheRD/RA.
Trustee involvement is especially valuable at
certain points in the Superfund process, such as the
scoping phase of the RI/FS and the review of the
ROD. The portions of the ROD dealing with site
characterizationandriskassessmentparticularly ben-
efit from trustee input While EPA considers trustee
input in deciding on remedial action, selection of the
remedy is the sole responsibility of EPA.
It is important that site managers emphasize
to trustees that any comments must be provided
within EPA timeframes to prevent the possibility of
the RPM missing management commitments and
delaying remediation. Trustees should also be a ware
that they risk the chance of forfeiting this right to
comment if reviews are not made in a timely manner.
Man* 1992 VoLl.No.3
10
ECO Update
-------
5'ite managers mav also '.vish :o consult with
:rustees at other stages of the remedial process. Trustee
representatives may be able to provide technical ad-
vice or services on specific issues before the review
step requires a more formal response.
At any stage of the Superfund process where
notifying trustees is advisable, thesitemanagershould
plan on contacting all trustees who have been notified
at an earner stage, etf the remedial process and who
have expressed an interest in reviewing the above
documents. If the trustees are members of the BTAG,
coordination can take place through that organiza-
tion. However, not all trustees are represented on
BTAGs. If other Federal, State, or Indian trustees
have been notified and have indicated that resources
under their trusteeship may be affected, the site man-
ager should provide copies of all relevant documents
to those trustees as well as to those on the BTAG.
Ensuring that coordination requirements have been
met is the responsibility of the site manager, not of
the trustee. The site manager should document all
coordination efforts with the trustees.
Coordination with natural resource trustees
does not mean that EPA must comply with all trustee
representatives' suggestions or recommendations
regarding a site. EPA and the trustees have different,
although complementary, responsibilities with re-
spect to site assessment The ecological assessment
portion of the RI/FS is intended to determine if
remedial action is necessary and, if so, which reme-
dial action is likely to be most protective of environ-
mental receptors. The ecological assessment need not
be designed to gather data appropriate for a natural
resource damage assessment, even though it may end
up being useful for that purpose. Trustee representa-
tives are generally aware of the differences in the
objectives and data needs between the RI/FS ecologi-
cal assessment and the NRO A.
If there is a question as to the purpose of
studies recommended by natural resource trustees,
the site manager should consult with the BTAG or
other technical support personnel within EPA to de-
termine what information is needed to meet the ob-
jectives of the RI/FS. Wherever possible, the site
manager should seek to obtain a consensus of experts,
including trustee representatives, before proceeding
with any plan to assess ecological effects at a site.
Compliance with ARARs
Many trustees derive their' authority irom
their agencies' statutory mandates to protect or man-
age the nation's natural resources. As such, trustee
representatives are often well versed in the require-
ments of Federal laws pertaining to their trust re-
sources, whichmaybe ARARs fora particular site. By
consulting with trustee representatives, a site man-
ager can obtain valuable advice on which laws and
regulations apply to a site. Compliance with such
requirements in the RD/RA may meet some or all of
the trustees' concerns and thus reduce the likelihood
of natural resource damage proceedings.
CERCLA and NCP provide for
prompt notification of, and
coordination with, trustees to
ensure that remedial actions are
selected that protect and restore
natural resources.
Conclusion
The role of the natural resource trustee is
integral to the CERCLA process of assessing and
remediating uncontrolled hazardous waste sites to
protect human health and the environment. CER-
CLA and the NCP provide for prompt notification of,
and coordination with, trustees to ensure that reme-
dial actions are selected that protect and restore natu-
ral resources. Trustee representatives can provide
valuable advice, comments, and technical support
during the remedial process, to help ensure that
projects remain on schedule and within budget Al-
though trustee and EPA responsibilities differ, coop-
eration and coordination are essential to the eventual
success of the remediation effort
ECO Update
U
March 1992 Vol.1, No. 3
------- |