Publications
If coordination of remediation and restoration under CERCLA is such a good idea, why is it not practiced more widely?
By Theodore D. Tomasi, Ph.D., Managing Principal, Business Director, Natural Resources and Enviromental Economics
Abstract
Decades of practice have demonstrated favorable outcomes when restoration is considered early in the remedial process, especially when parties have an opportunity to avoid litigation over natural resource damage (NRD) claims. However, these two separate processes are most often done sequentially – with clean up decisions for contaminated sites made during the remedial investigation and feasibility study process and restoration of injured resources during a subsequent natural resource damage assessment. Coordinating these processes offers many advantages for remediating and restoring hazardous waste sites. In this paper, we illustrate why this is true, and explore reasons why it is not practiced more universally. Coordination can generate savings by reducing the amount of time and money required to address natural resource damage claims and build trust among stakeholders. Yet, there are barriers to coordination, such as uncertainty over the benefits that restoration will generate, or the potential risk that undertaking coordination could be viewed as admitting to liability for harm to natural resources. Existing federal statutes also can be an obstacle because they bifurcate remediation and restoration. The economic, legal and policy issues relevant to the integration of remediation and restoration were examined, and how they might be used to encourage early coordination. Habitat equivalency analysis was used to illustrate the tangible natural resource service gains that can be achieved when the processes are coordinated. Selected site-specific examples were drawn upon where coordination occurred and documented. This information was augmented with the results of a survey of companies about their experience with coordination. Finally, we discuss the potential policy and legal approaches that might help bring remediation and restoration together and result in improved practices nationwide, and thereby provide benefits to industrial parties, government, and affected communities alike.
Introduction
Managing federal hazardous waste sites often involves two distinct processes: remediation (cleanup) initiated under the Remedial Investigation/Feasibility Study (RI/FS) process led by the US Environmental Protection Agency (EPA), and the restoration of injured natural resources under the natural resource damage (NRD) regime led by natural resource Trustees (Trustees). Whether these should be coordinated is a question that has been discussed for many years by potentially responsible parties (PRPs), state and federal regulators, and Trustees (Barnthouse and Stahl, 2002, 2017; Kapustka et al., 2015). Our argument is that, in most cases, the advantages of coordinating the remediation and restoration processes outweigh the disadvantages. Relevant illustrations are provided in support of the argument along with explanations of why coordination may not be practiced more universally.
Our experience is that coordination is either rare, or not widely discussed in the literature. Four hazardous waste sites were examined – St. Paul Waterway, WA; DuPont Newport, DE; the Duwamish Waterway, WA and a federal facility site – where claims for remedial costs and NRD were brought under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). These were selected because there was sufficient publicly available information to evaluate conditions that favor integrating remediation and restoration measures. To augment this information, we conducted an informal survey of approximately 50 companies on the frequency of coordination at their sites. Those results are provided in Section 3.
Unfortunately, CERCLA creates an inherent bias against the coordination of restoration projects with remedial investigations and remedy selection decisions. This is largely attributable to CERCLA’s statutory language requiring that restoration address injuries remaining after remediation has been completed. Despite these biases and other barriers discussed below, there still can be significant benefits to coordinating the remediation and restoration processes. We examine whether regulatory reform is needed to achieve the benefits of coordination we sometimes see in practice.
Federal cleanup is conducted under CERCLA (or Superfund) (Congress of the United States, 1980; 1986). Remediation is primarily directed at reducing risks to human health and the environment by taking actions at contaminated sites to reduce or eliminate exposures to hazardous substances. Under CERCLA EPA is responsible for remedial actions while conferring a separate natural resources restoration responsibility to federal, state, and tribal authorities that are designated as natural resource Trustees (Congress of the United States, 1980). EPA is not a Trustee.
Trustees may conduct natural resource damage and restoration assessments (NRDARs) and make claims against potentially responsible parties (PRPs) to restore natural resources and compensate for injuries to affected resources services. The distinction between NRD and NRDARs is that the former is typically the legal claim made for compensation (financial or restoration projects) whereas the latter is typically the technical process used to determine the amount and significance of the injury, and what level of restoration is needed to offset it.
The CERCLA statute has created complementary, but generally separate, regimes for cleaning up contaminated sites and restoring damaged natural resources. At the same contaminated site, the two regimes typically proceed on different tracks and timelines. Yet they both require an investigation of site conditions and an evaluation of the measures available to clean up and restore the services of injured natural resources. Further, the two regimes are directly linked, with cleanup activities affecting the magnitude of restoration needed.
While EPA is assigned primary federal responsibility for remediation, it also has an obligation to “notify the appropriate Federal and State natural resource trustees of potential damages resulting from releases under investigation … and to coordinate the assessments, investigations and planning (the NRDAR) with such Federal and State trustees” (42 U.S.C. § 9604(b) (2)) (U.S. Department of the Interior, 2007). Typically, the coordination required between EPA and resource Trustees does not occur until final plans for site cleanup have been selected and the Record of Decision (ROD) is prepared. The ROD is the official document in which EPA selects its remedy for a Superfund site after investigating site conditions and evaluating alternative remedies.
The primacy of EPA’s ROD remedy selection process can undermine the shared use of collected site data and the development of cleanup plans that serve the dual goals of protecting public health and restoring injured natural resources (U.S. Environmental Protection Agency, 1992). Many cleanup options at contaminated sites provide opportunities for redressing injuries to resources earlier by integrating cleanup and NRDAR, if it does not slow remediation or jeopardize regulatory requirements. This can achieve more rapid improvement of environmental conditions and result in more cost-effective cleanup and restoration plans.
A number of workshops have examined coordinating remediation and restoration, conducting early restoration (restoration implemented prior to the completion of the NRDAR process), and the interaction of ecological risk assessments and NRDAR (Gala et al., 2009; Sanders et al., 2016). Coordinating field sampling may achieve cost reductions. For example, adding samples to measure additional hazardous substances in the Remedial Investigation (RI) field program may achieve efficiencies in the collection of data useful for evaluating remedial options and for restoring natural resources. Identifying potential restoration measures during the remedial investigation could determine whether the site itself, nearby habitats or other options are suitable for restoration (Stahl et al., 2008; Kapustka et al., 2015).
Importantly, an evaluation could be made early in the remedial process to determine whether some remedial actions (excavation, capping, backfilling, planting covers on landfills, etc.) could be combined with onsite restoration to achieve an early and cost-effective restoration of injured natural resources. This would reduce the extent of injury to natural resources because the resource returns to baseline sooner (see Section 2). On-site restoration would also enhance the NRDAR preference for a close nexus between injured and restored resources.
Some US Federal Facilities (FF), subject to remedial requirements under the Resource Conservation and Reclamation Act (RCRA), have been placed on the National Priorities List (NPL) managed under EPA. When subjected to CERCLA requirements, the US Department of Energy (DOE) typically investigate sites to evaluate the Department’s potential liability for NRDs. The DOE developed guidance (U.S. Department of Energy, 1993) for integrating remediation and restoration, and later adopted specific policy to integrate NRDAR with the CERCLA remedial investigation processes (U.S. Department of Energy, 2012). The private sector PRP community has a long history of considering the protocol that can be built upon and applied more broadly to coordinate remediation and restoration at CERCLA sites (Ad-Hoc Industry Natural Resource Management Group, 2006).
Trustees are required to invite PRPs to participate (see 43 CFR 11) in the NRDAR. If PRPs elect to participate, the parties then agree on how to share data and work together in a “cooperative assessment”. Often, the PRPs in this arrangement fund an injury assessment and provide input on the selection of contractors and the design of investigations. The injury assessment provides the basis for determining the amount and type of restoration needed. Any injury assessment employs various laboratory and field measurements, often overlapping with those needed for ecological or human health risk assessment under a CERCLA RI (U.S. Department of the Interior, 1987a, b). Recognizing this overlap, duplication of sampling effort can be reduced, and cost savings (Barnthouse and Stahl, 2002) achieved because the same data can be used for multiple purposes if methods and chain of custody were considered for both purposes.
Read full paper here.
Ralph G. Stahl, Jeffrey Martin, Theodore Tomasi, Barbara J. Goldsmith,
If coordination of remediation and restoration under CERCLA is such a good idea, why is it not practiced more widely?, Journal of Environmental Management, Volume 340, 2023, 117964, ISSN 0301-4797, https://doi.org/10.1016/j.jenvman.2023.117964. (https://www.sciencedirect.com/science/article/pii/S0301479723007521)
Published
August 25, 2023
About The Author
Dr. Ted Tomasi has more than 40 years of experience as a natural resource economist, specializing in the valuation of... Full bio