EPA
United States
Environmental
Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9345.0-051
March 1992
ECO Update
Office of Emergency and Remedial Response
Hazardous Site Evaluation Division (OS-230)
Intermittent Bulletin
Volume 1, Numbers
The Role Of Natural Resource Trustees In The
Superfund Process
This Bulletin is intended to help Remedial 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
Superfund program.1
Authorities
CERCLA
The Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended
by the Superfund Amendments and Reauthorization 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 President of the United States as
the trustee for Federally protected or managed natural
resources on behalf of the public and requires the President
to:
1 All sections of this Bulletin have benefitted greatly from material
obtained from the Region 10 Natural Resource Trustee Notification and
Coordination Package (September 1989). The Package was prepared by
the National Oceanic and Atmospheric Administration Coastal Resource
Coordinator in cooperation with the Department of Interior Regional
Environmental Officer and the Region 10 Natural Resource Coordinator.
Notification and coordination packages are also available in many other
EPA Regions.
• Assess damages from releases of hazardous
substances,
• 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).
These functions are carried out by various trustees, as
discussed later in this Bulletin.
The law also directs EPA to coordinate with natural
resource trustees. This coordination includes:
• Prompt notification of potential injuries to natural
resources at Superfund sites and incidents
[§104(b)(2)];
In This Bulletin
Authorities 1
Who are the Natural Resource Trustees? 2
What is a Trust Resource? 4
Trustee Functions 5
How to Work with Trustees 7
Conclusion 10
ECO Update is a Bulletin series on ecological risk 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
-------
Coordination of assessments, investigations, and
planning [§104(b)(2)];
Notification of negotiations with potentially
responsible parties (PRPs), if the release of hazardous
substances may have resulted in injuries to trust
resources [§122(j)(l)]; and
Encouraging trustees to participate in the negotiations
[§1220X1)].
National Contingency Plan
As called for in CERCLA 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 jurisdiction. The NCP
also spells out the responsibilities of the trustees following
notification or discovery of a natural resource injury, loss,
or threat. Depending on the stage of 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
appropriate":
1. Conduct a preliminary survey of the area affected 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;
for restoration,
acquisition of
3. Carry out damage assessments; or
4. Devise and carry out a plan
rehabilitation, replacement, or
equivalent natural resources.3
The NCP describes the trustees' authority as including,
but not limited to, the following actions:
1. Requesting that the Attorney General seek
compensation from the responsible parties for the
damages assessed and for the cost of assessment
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
assessments and restorations for injured resources
or protection for threatened resources and to agree
to covenants not to sue, where appropriate.4
2 40 CFR Part 300.
3 40 CFR 300.615.
4 40 CFR 300.615.
The NCP also defines EPA responsibilities with respect
to natural resource coordination. EPA is required to carry
out the following notification and coordination activities:
• Make available any information that can assist
trustees in determining injuries to natural resources
[§300.160(a)(3)];and
• Coordinate with trustees in requiring PRPs to
comply with CERCLA information requests
[§300.615(d)(3)].
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
request of the trustee [§300.615(e)(2)].
Who Are The Natural Resource
Trustees?
By Executive Order 12580 and in the NCP, the
President has designated certain executive officers as
Federal trustees for natural resources. They include the
Secretaries of the Departments of Interior, Commerce,
Defense, Energy and Agriculture. In addition, SARA
Section 107(d) requires the Governor of each State to
designate State trustees; most Governors have done so.
Indian tribes also are trustees for their resources,
functioning much as State trustees for resources on or
related to tribal lands or for resources to which they
otherwise may have treaty rights. Figure 1 summarizes 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) management of Federally owned
land, or (c) both.
Secretary of Commerce
The NCP designates the Secretary of Commerce as
trustee for:
...natural resources managed or protected by the
Department of Commerce or by other federal agencies and
that are found in or under waters navigable by deep draft
vessels, in or under tidally influenced waters, waters of the
contiguous zone, the exclusive economic zone, and the
outer continental shelf, and in upland areas serving as
habitat for marine mammals and other protected
species...Examples of the Secretary's trusteeship include
marine fishery resources and their supporting ecosystems;
anadromous fish [saltwater fish that return to freshwater
streams to breed]; certain endangered species and marine
March 1992 • Vol. 1, No. 3
ECO Update
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mammals; and National Marine Sanctuaries and Estuarine
Research Reserves.5
The Secretary of Commerce has delegated the
Administrator of the National Oceanic and Atmospheric
Administration (NOAA) to act as the Department of
Commerce natural resource trustee. To facilitate
coordination between NOAA and EPA, NOAA has placed
Coastal Resource Coordinators in all of the coastal EPA
Regional Offices.
Secretary of the Interior
The Secretary of the Interior acts as trustee for natural
resources managed or protected by the Department of the
Interior (DOI).
Examples of the Secretary's trusteeship include
migratory birds; certain anadromous fish, endangered
species, and marine mammals; federally owned
minerals; and certain federally managed water
resources. The Secretary [is also] trustee for those
natural resources for which an Indian tribe would
otherwise act as trustee in those cases where the
United States acts on behalf of the Indian tribe6
DOI has delegated Regional Environmental Officers
from the Office of the Secretary as the principal trustee
contacts for their agency. The Regional Environmental
Officer coordinates with the following DOI bureaus on
trustee concerns: the U.S. Geological Survey, Bureau of
Mines, National Park Service, Minerals Management
Service, Bureau of Reclamation, Bureau of Land
Management, Fish and Wildlife Service, Bureau of Indian
Affairs, Office of Surface Mining Reclamation and
Enforcement, and the Office of the Solicitor.
In addition to fulfilling the Secretary's duties as natural
resource trustee, DOI is charged under CERCLA with
promulgating regulations for the assessment of natural
resource damages from releases of hazardous substances.
These regulations, found at 43 CFR Part 11, are currently
undergoing amendment.
Secretaries for Land-Managing Agencies
The NCP designates as trustees the Secretaries of
Departments that manage federally owned or administered
lands. The trusteeship applies to all "natural resources
located on, over, or under" these lands. These land-
managing agencies are co-trustees with the Department of
the Interior, Department of Commerce, and/or possibly the
State or Indian tribe for most of the living natural
resources. In addition to the Secretary of the Interior,
discussed above, these trustees include the Secretaries of
Agriculture, Defense, and Energy.
DOI is the largest Federal land-management agency.
Its land-management functions are carried out by the
Bureau of Land Management (public lands), National Park
5 40 CFR 300.600.
6 40 CFR 300.600.
Service (parks and monuments), Fish and Wildlife Service
(wildlife refuges), and the Bureau of Reclamation (water
projects). The Secretary of Agriculture, through the
USDA Forest Service, has jurisdiction over large tracts of
land (the National Forests) in all areas of the country. The
Secretary of Defense has trusteeship over all lands owned
or managed by the Department of Defense, including
facilities operated by the Navy, Army, Air Force, and
Defense Logistics Agency. The Secretary of Energy is
trustee for all lands owned or managed by the Department
of Energy.
Where Federal facilities contain uncontrolled
hazardous waste sites, the agency managing the property
may be held accountable as both the responsible party and
the natural resource trustee. Usually, however, the agency
will be co-trustee with another Federal agency, and some
of the potentially affected resources may also be under the
trusteeship of a State or an Indian tribe. When the
hazardous wastes are not on Federal property, the land-
managing agency's trustee role may be exercised if
contaminants from the site threaten resources on Federal
land. This could happen if, for example, a hazardous
waste site was located upstream of a Federal facility and
the stream transported contaminants onto the Federal
property.
State Trustees
According to CERCLA and the NCP, a State may act
as trustee for natural resources within the boundaries of the
State or for those resources belonging to, controlled by, or
appertaining to the State. Each State governor is required
under CERCLA to designate State officials who will act as
trustees. Usually, that official heads the agency
responsible for environmental protection or resource
conservation. A complete list of State-designated trustees
is available from EPA headquarters, DOI, and NOAA. If
there is any doubt as to who the State trustees are for a
specific site, the site manager should contact one of these
offices or their counterpart State agency.
Indian Tribes
The tribal chairman, the head of the governing 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, managed 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 the trustee
is, the site manager should contact the DOI Regional
Environmental Officer.
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Natural resources include "land,
fish, wildlife, biota, air, water, ground
water, drinking water supplies, and
other such resources."
What Is A Trust Resource?
CERCLA Section 101 (16) defines trust resources to
include:...Iand, fish, wildlife, air, water, ground water,
drinking water supplies, and other such resources
belonging to, managed by, held in trust by, appertaining
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
Natural Resource Trustees
Figure 1
Federal
State
Indian Tribes
State Governor
designated:
State Official
Tribal Chairman
designated:
Individual
or request
DOI Bureau of
Indian Affairs
as trustee
Secretary of
Interior
delegated:
Regional
Environmental
Officer
Secretary of
Commerce
delegated:
NOAA
Adminstrator
Secretary of
Agriculture
Secretary of
Energy
Fish and Wildlife
U.S. Geological Survey
National Park Service
Minerals Management Service
Burea of Reclamation
Bureau of Land Management
Bureau of Indian Affairs
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ECO Update
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an Indian tribe.
Trust resources include both species and places. Fish,
wildlife, migratory birds, and marine mammals are all
mentioned in CERCLA and the NCP as trust resources, as
are Natural Marine Sanctuaries and Estuarine Research
Reserves. DOI protects not only endangered species but
also National Parks and Monuments. The Departments of
Agriculture, Defense, and Energy are trustees for natural
resources that occur on their lands. In some cases, federal
agencies can be co-trustees for a particular natural
resource. Federal and State agencies also are frequently
co-trustees for natural resources.
Living Resources
In designating the Secretaries of Commerce and
Interior as natural resource trustees, the NCP gives
examples of the types of resources that fall under the
Secretaries' trusteeship. Included among these are marine
fishery resources, anadromous fish, endangered species,
migratory birds, and marine animals. In specifying marine
fishery resources as trust resources, the NCP adds the
phrase "and their supporting ecosystems." This
acknowledges the fact that protecting a living resource
entails not only preventing or mitigating contamination of
the protected species itself but also ensuring the continued
availability and quality of that species' habitat and food
sources.
CERCLA and the NCP use the comprehensive term
"biota" and the specific term "fish [and] wildlife" to define
the living resources covered under Federal trusteeship.
The NCP cities more specific types of resources such as
anadromous fish, endangered species, and marine
mammals only as examples of trust resources, not as a
definitive list. The clear implication of these references is
that the definition of what is a trust resource is left to the
trustee. To an extent, trustees' responsibilities may be
defined by the various statutes that they are charged with
enforcing or implementing, including the management of
land under their control. Within the bounds of those
statutes and land-management responsibilities, trustees
may interpret their CERCLA mandate to include whatever
biota "and their supporting ecosystems" that the trustees
consider appropriate. With regard to specific sites, the
EPA site manager should let the trustee agencies determine
whether trust resources are present and potentially affected
by a site.
Land, Air, Water, and Mineral Resources
In addition to living resources, CERCLA and NCP list
"land, ...air, water, ground water, drinking water supplies,
and other 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 actions aimed at nonliving
components of the environment. 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
representative 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 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.
CERCLA Section 104(b)(2) calls for coordination between
EPA and trustees on "assessments, investigations, and
planning"; in other words, at virtually all stages of the
process. This requirement applies to both the removal and
remedial actions, and to enforcement and Fund-lead sites.
Trustees' primary responsibilities include:
• Preliminary Natural Resource Survey (PNRS)
• 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 to conduct a PNRS or another form
of preliminary site survey. The request usually originates
with the RPM, but it also may come through a designated
EPA Natural Resource 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
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injury to trust resources. The PNRS, which may be
funded by EPA, is an effective, low-cost screening tool
to determine if trust resources 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 information 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,
and 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 time(s) for performing the PNRS.
Technical Assistance
While not a trustee responsibility under CERCLA,
several trustee agencies offer technical assistance at
Superfund sites. As well as furthering EPA's ecological
assessments, such activities support the trustee's larger
role in safeguarding natural resources. Advice and
technical assistance from trustee representatives can take
many forms. In most EPA Regional Offices, one or more
trustee representatives serve on Biological Technical
Assistance Groups (BTAGs),7which provide review and
advice on ecological issues in the assessment and
remediation of sites. Usually, trustee representatives are
also available 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 testing
organisms. FWS staff or NOAA Coastal Resource
Coordinators in coastal EPA Regional Offices may also act
as a source of technical assistance for ecological
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.
7 These groups are sometimes known by different names, depending
on the Region, and not all 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 Role of BTAGs in the Ecological Assessment (ECO
Update Vol. 1, No. 1).
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..."
Natural Resource Damage Assessment
If remedial actions are judged insufficient to protect
and restore natural resources injured by releases 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 resources, including the
reasonable costs of assessing such injury, destruction, or
loss resulting from such a release."8 These payments are
considered compensation, 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, not of 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;
* CERCLA Section 107(a)(4)(D).
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• Ascertains the magnitude of the injury or loss;
• Calculates the dollar value of the injury, loss,
and/or cost of restoration; and
• Develops a restoration plan.
EPA can facilitate the restoration of natural resource
damage issues during the RI/FS by coordinating 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/FS 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 CERCLA
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 contamination. 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 natural
resource trustees with information to use 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 NRD A 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 negotiations with responsible parties are
contemplated or in progress.
CERCLA Section 122(j) requires EPA to notify
Federal trustees of any negotiations regarding the release
of hazardous substances that may have resulted in natural
resource injury, while Section 122(j)(l) calls on EPA to
encourage Federal trustees to participate in negotiations
with responsible parties. In those cases where trustees
believe that they will need more information than EPA
proposes to collect as part of the ecological assessment,
they can negotiate with the responsible parties at the same
time as EPA negotiates for the RI/FS. Note that EPA does
not have the authority to negotiate on behalf of the
trustees. In addition, if in the settlement process the
responsible party requests a covenant not to sue for
natural resource injuries, only the natural resource trustee
or trustees, through the Department of Justice, can grant
such a covenant.
CERCLA Section 122(j)(2) provides the link between
remedial action decisions and the covenant 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
substances.
In other words, trustee concurrence with a settlement—
and, if appropriate, granting a covenant no to sue—is most
likely to be facilitated if the selected remedial action will
protect and restore trust resources. However, it should be
noted that a covenant is not necessary for every Operable
Unit at a site, so long as the Consent Decree for the
Remedial Design/Remedial Action (RD/RA) retains the
standard Reservation of Rights. The covenant is needed if
the PRP refuses to accept the Reservation and requires a
covenant not to sue as a condition of settlement. In these
circumstances, only the trustees can agree to the covenant.
The trustee's first priority is to see
that remedies are selected which
protect and restore trust resources.
How To Work With Trustees
As mentioned above, natural resource damages are
considered residual damages. The trustee's first priority is
to see that remedies are selected which protect and restore
trust resources. To be reasonably confident of obtaining a
covenant not to sue, a site manager should remain mindful
of four important responsibilities during the remedial
process:
• Adherence to the notification and coordination
provisions of CERCLA, the NCP, and any
Memoranda 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).
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Notification
When to Notify
CERCLA Section 104(b)(2) requires EPA to promptly
notify natural resource trustees of the potential for injuries
resulting from releases under investigation. Section 122(j)
requires notification regarding pending negotiations with
potentially responsible parties. In practice, site managers
should treat notification as a process rather than a one-time
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 site for inclusion on the National
Priorities List,
• Initiation of RI/F S negotiations,
• Receipt of the draft and final RI/FS workplans,
• Receipt of the draft RI/FS or any relevant interim
product such as the ecological assessment 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 workplans.
Notification should be in the form of a letter indicating
what activity is taking place or what product is available.
It could include copies of relevant documents for review,
an invitation to attend a meeting or a request for specific
action (such as review of a document).
Whenever trustees are expected to take some action, it
is important that notification take place early enough to
allow the trustee to respond in a timely manner, and that a
date is stated by which comments or actions are required.
Notification should be viewed not only as compliance
with statutory requirements, but as insurance toward
keeping projects on time and within budget.
Whom to Notify
As discussed earlier, trusteeship has been delegated to
five Federal Departments: Interior, Commerce;
Agriculture, Defense, and Energy. The site manager will
need to decide which trustees to notify regarding a specific
site, based on where the site is located, what habitats or
Federally managed lands are potentially exposed, and what
species are potentially exposed.
The descriptions of each Department's trusteeship, also
discussed earlier in the Bulletin, can be used as a sort of
checklist as to whom to notify. However, since no
checklist can be exhaustive, the general rule should be:
When in doubt, notify. If the site is not relevant to a
particular agency's trusteeship, the trustee representative
will inform the site manager and no further notification
will be needed. The site manager should request that the
trustee provide a written response as to their interest, or
lack of interest, in a site.
A second general rule is, Always notify the
Department of Interior trustee representative and, if
there is one in your Region, the NOAA Coastal
Resource Coordinator. These two agencies have
responsibility in a wide variety of Superfund sites. For
example, since migratory birds can utilize almost any
terrestrial or aquatic habitat, DOI may be a trustee at
almost any site. In addition, an aquatic habitat that is no
longer fished may still come under the jurisdiction 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, NOAA, and State/tribal
representatives will be the best judges as to whose 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 managers should notify the
USD A 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 contaminants might affect lands or resources
controlled by the Department of Energy, that agency's
trustee representative should be notified. EPA
Headquarters, DOI, or NOAA can assist in identifying the
appropriate individuals in each of these agencies for
notification purposes.
CERCLA also requires Notification 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 the States and Indian tribes. Most States have
designated threatened 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, DOI, NOAA all maintain a list
of State trustees, which may be helpful in identifying
appropriate offices for notification. 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.
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Coordination
Coordination involves a two-way communication
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
technical adequacy of ecological investigations,
• Assist the trustee in evaluating the actual or
potential injury to trust resources, and
• Identify remedial alternatives that include
appropriate actions to protect and restore natural
resources (and thus minimize the need to recover
residual damages).
Although coordination with trustees is a requirement,
site managers should also view it as an opportunity.
Operating through the BTAG or directly with the trustees,
the site manager can obtain expert advice and review of
work plans, data, and reports. This can be invaluable for
selecting environmentally 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
Natural Resource Damage Assessment. Nonetheless, a
properly designed ecological assessment may go a long
way toward resolving questions that might otherwise
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 soliciting
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
• The RD/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 characterization and risk
assessment particularly benefit from trustee input. While
EPA considered 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 aware that they risk the chance of
forfeiting this right to comment if reviews are not made in
a timely manner.
Site managers may also wish to consult with trustees
at other stages of the remedial process. Trustee
representatives may be able to provide technical advice 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, the site manager should plan on
contracting all trustees who have been notified at an earlier
stage of 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 organization. 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
manager 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
complimentary, responsibilities with respect to site
assessment. The ecological assessment portion of the
RI/FS is intended to determine if remedial action is
necessary and, if so, which remedial action is likely to be
most protective of environmental 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 representatives are generally aware of the
differences in the objectives and data needs between RI/FS
ecological assessment and the NRDA.
If there is a question as to the purpose of studies
recommended by natural resource trustees, the site manger
should consult with the BTAG or other technical support
personnel within EPA to determine what information is
needed to meet the objectives of the RI/FS. Wherever
possible, the site manger 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 from their
agencies' statutory mandates to protect or manage the
nation's natural resources. As such, trustee representatives
are often well versed in the requirements of Federal laws
pertaining to their trust resources, which may be ARARs
for a particular site. By consulting with trustee
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ECO Update
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representatives, a site manager 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 CERLCA process of assessing and remediating
uncontrolled hazardous waste sites to protect human health
and the environment. 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. 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. Although trustee
and EPA responsibilities differ, cooperation and
coordination are essential to the eventual success of the
remediation effort.
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