Coordination of CERCLA Remedial Actions and Natural Resource Injury Determinations

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 157-172

Page 157

Chapter 12

Coordination of CERCLA Remedial Actions

and Natural Resource Injury Determinations

12.1 Introduction

A review of the natural resource damage (NRD) matters around the country reveals t hat NR D claims

frequently arise under the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) for sites on the National Priorities List (NPL) undergoing remedial act ion. Some parties have

discovered that there are substantial benets for both potentially responsible parties (PRPs) and trustees to

coordinate work in the remedial action process under CERCL A with natural resource damage assessment

(NRDA). e Lavaca Bay, Texas, NPL site is a good example of a n eective coordination eort. Taking

advantage of this site, the assessment used an integrated approach that led to signicant cost savings.1 is

approach has been heralded as a model for the country of an ecient and cost-eective NRDA.

Section 12.2 of this chapter explains why coordination of the CERCLA remedia l action process and

NRDAs can be important. Section 12.3 describes the remedial action process. Section 12.4 outlines human

health and ecologica l risk assessments. Section 12.5 addresses the opportunities for coordination between

CERCLA remedial actions and NRDAs. Section 12.6 briey outlines some examples of coordinated eco-

logical risk assessments (ERAs) and NRDAs. Section 12.7 discusses challenges to coordination. Section

12.8 concludes with some promising next steps for coordination.

12.2 Why Coordination Is Important

Coordinating remedial action and NRDA for PRPs can save money, and for the public, it can expedite both

remedial investigations and cleanup and natura l resource injury restoration. With coordination of the two

eorts, eldwork and analyses can be designed in a way to simultaneously address the needs of remediation

and restoration and avoid work on substa ntially the sa me issues being carried out more than once—once

for the remedial investigation and feasibility study (RI/FS) and second for the NRDA. Beyond monetar y

eciency, coordination saves time, which benets both PRPs and trustees.

12.3 Remedial Action Process

Before tackling coordination of an NR DA with a remedial action, it is important to understand the reme-

dial action process. Remedial action is a complicated process with a long series of steps and requirements.

e process is presented in a summary display in Figure 12-1. More specically, the process is as follows.

12.3.1 Site Identif‌ication

e beginning of the remedia l action process is site identication. Sites come to the U.S. Environmental

Protection Agency’s (EPA’s) attention in a variety of ways. State agencies, citizens, and even self-disclosures

1. Texas General Land Oce et al., Damage Assessment and Restoration Plan and Environmental Assessment for the Point Comfort/Lavaca Bay

NPL Site—Ecological Injuries and Service Losses 20 (2001).

Page 158 Natural Resource Damage Assessment Deskbook

by current owners and operators are sources of information. CERCLA provides a right of petition for par-

ties aected or potentially aected by a release to request EPA to underta ke the rst step in investigation

of a site, a preliminar y assessment (PA).2 Once a petition has been lodged with EPA, if a PA has not been

conducted in t he past 12 months on t he site, EPA “shall within 12 months after receipt” of the petition

“complete an assessment or provide an explanation for why the assessment is not appropriate.”3

Figure 12-1. The Remedial Action Process

2. 42 U.S.C. §9605(d), ELR S. CERCLA §105(d). e regulations provide specic guidance regarding what should be included in a petition

and where such petitions should be sent. See 40 C.F.R. §300.420(b)(5).

3. 42 U.S.C. §9605(d), ELR S. CERCLA §105(d).

1. Preparation of Hazard Ranking

System (HRS) Package

2. Consideration of HRS Package by

EPA, States, and Tribes if involved

If EPA and State concur, list site on NPL

(After concurrence and notice and comment)

Results to NRDA

Site Inspection (SI)

3. Remedial Investigation (RI)

• Nature and extent of contamination

• Human Health Risk Assessment

• Ecological Risk Assessment

Establish cleanup levels based on risk and applicable or

relevant and appropriate standards (ARARs)

4. Feasibility Study (FS)

Consideration and Analysis of Remedial Action Alternatives

5. EPA Record of Decision

(Remedial Action Selected)

Implementation of the Remedial Action

e.g., control/minimize pollution

cleanup or eliminate contamination

Residual Injury to NRDA

Results to NRDA

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Preliminary Assessment (PA)