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Superfund

Natural Resource Damages: Notification and Coordination Activities

Notification and coordination with natural resource trustees

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EPA Policy and Procedure

EPA's policy is to encourage participation by all affected Trustees at every stage in the Comprehensive Environmental response, Compensation, and Liability Act (CERCLA) or the Oil Pollution Act (OPA) response and enforcement process. Coordination with Natural Resource Trustees will make sure environmental impacts are fully addressed and will facilitate timely settlement of any, and all, liabilities. Through the exchange of information regarding site conditions and response action impacts, EPA and Trustees can provide for more efficient use of resources, reduce costs and reduce the time to reach final settlement. If natural resource liability is not resolved in connection with a settlement, and if there are residual injuries to natural resources after a CERCLA response, the Trustees may pursue a separate claim for NRD. Coordination activities also help Trustees identify actions that may trigger the Statute of Limitations for NRD actions.

EPA's Trustee notification and coordination efforts focus on achieving three goals:

  • Providing Trustees with the information needed to meet their legal obligations for action.
  • Sharing information to better protect public health and the environment.
  • Reducing the time for settlement of all liabilities.

EPA has entered into interagency agreements, known as Memoranda of Understanding (MOUs), with some Trustees. These agreements specify the information to be provided at each stage of the Superfund response process. In particular, the MOUs delegate the notification and coordination duties within each agency and indicate the type of information to be shared and the period for providing the information.

Under the NCP, Trustees are responsible for designating appropriate contacts to receive notifications [40 CFR §300.615(b)]. They provide this information to the Regional Response Teams. Trustees may provide technical assistance to the lead agency to prevent and/or minimize the risk of injury to natural resources from either releases of hazardous substances or discharges of oil. Trustees are also tasked with conducting preliminary surveys to determine if Trust Resources are, or potentially may be, affected; cooperating with EPA in coordinating assessments, investigations and planning; and carrying out Natural Resource Damage Assessments (NRDAs) and restoration [40 CFR §300.615(c)].

CERCLA NRDA regulations provide that a Trustee should assist the lead response agency in identifying other Trustees whose resources might have been affected [43 CFR §11.20(c)]. The regulations also state that if there is a response activity at a site, the Trustees should coordinate their assessment with the lead response agency and document their coordination efforts in their Assessment Plan [43 CFR §§11.22(b), 11.23(f)(1), 11.31(a)(3)].

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Statute of Limitations for Natural Resource Damage Claims

Under CERCLA Section 113(g)(1), with respect to NPL sites, Federal Facilities and facilities at which a remedial action under CERCLA is otherwise scheduled, NRD actions must start within three years of the completion of the remedial action (excluding operation and maintenance). At all other sites, actions for NRD must begin within three years of the later of:

  • The date of discovery of the loss and its connection to the release; or
  • The date on which DOI NRDA regulations were promulgated.

For Tribal Trustees, the deadline for filing claims is the later of:

  • The expiration of the otherwise applicable period of limitations; or
  • Two years after the United States gives written notice to the governing body of the Tribe that it will not present a claim on behalf of the Tribe or fails to present a claim within the time limitations specified elsewhere in the statute [CERCLA §126(d)].

Under OPA Section 1017(f)(1), a claim for NRD must be filed within three years of the date of completion of an NRDA under OPA Section 1006(c)

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Key Notification and Coordination Procedures

EPA, through communication with many of the Trustees, has identified key notification and coordination procedures throughout the removal and remedial processes to assist Natural Resource Trustees.

For more information on EPA notification and coordination activities, please refer to the "NRD Slide Show" on the sidebar of this page.

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Superfund Removal Actions

Notify Trustees of: Removal Activity Coordinate with Trustees:
  • Releases of threatened releases
  • Location of releases
Discovery
  • Invite/encourage involvement in response
  • RSE Results
Removal Site
Evaluation (RSE)
 
  • Plans and negotiations
Assessment of RSE Results
against Regulatory Criteria
  • Coordinate assessments, evaluations,
    and inspections
  • Removal action
  • Adverse impacts of removal action
Removal Action
in Progress
  • Provide Action Memorandum for site
  • Provide opportunity to review and comment
    on removal action documentation
  • Completion of removal action
Removal Action
Complete
 

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OPA Removals

Notify Trustees of: Removal Activity   Coordinate with Trustees:
  Discovery  
  • Spills or threatened spills
  • Location of spills
Entry into Tracking System
  • Invite/encourage involvement
    in response
  OSC Notified of Spill  
  • Removal Action

State, Local Agency
or PRP Takes Lead
with EPA oversight

Federal OSC
Takes Lead
  • Coordinate assessments,
    evaluations, and inspections
  • Completion of removal action
Removal Complete
  • Provide opportunity to review
    and comment on documentation

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Superfund Remedial Actions

Notify Trustees of: Remedial Activity Coordinate with Trustees:
  • Releases or threatened releases
  • Location of releases
  • Initiation/termination of discovery
Discovery
  • Invite/encourage involvement in response
  • Respond to requests for enforcement
  • Exchange PRP Information and coordinate CERCLA §104 requests
  Site Assessment  
  • Request for PA/SI
  • Initiation/termination of PA/SI
  • Completion of draft and final documents
Preliminary Assessment/
Site Investigation (PA/SI)
  • Provide PA checklist
  • Coordinate assessments, evaluations, investigations and planning
  • Provide opportunity to participate in human health and ecological
    risk screening
  • Proposal for inclusion on NPL
NPL Listing
  • Provide national lists and site-specific information supporting
    NPL listing
  Remedial Planning  
  • Initiation/Termination of RI/FS activities
  • Receipt of draft and final work plans
  • Completion of draft and final RI/FS reports
  • Development of human health and
    ecological risk assessment
Remedial Investigation/
Feasibility Study (RI/FS)
  • Provide opportunity for Trustees to comment on work plans,
    RI/FS reports, remedial alternatives, ARARs and the proposed plan
  • Coordinate necessary assessments with Trustees
  • Initiation/Termination of ROD
Record of Decision (ROD)
  • Provide opportunity for Trustees to comment on ROD
  • Provide opportunity to review and comment on negotiated
    draft agreements
  • Provide copy of final ROD
  Remediation  
  • Initiation/Termination of RD/RA negotiations
  • Completion of draft and final work plans/documents
Remedial Design/
Remedial Action (RD/RA)
  • Provide opportunity to review draft work plan and RD/RA documents
  • Invite/encourage Trustee involvement in planning response actions
  • Provide opportunity for Trustee to negotiate with PRPs
  • Construction Completion determination
Construction Completion  
  Operation & Maintenance
(O&M)
  • Provide opportunity for commitment on O&M plans
  Post-Remediation  
  • Notice of Intent to Delete Final Notice of Deletion,
    or Notice of Intent of Partial Deletion
NPL Deletion
  • Provide opportunity to particiapte in close-out activities
  • Provie opportunity to comment on draft close-out report
  • Provide copy of Five-Year Review report
Five-Year Review
  • Provide copy of Five-Year Review report

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