**Northeast Regional NRDA Workshop**

**May 30 -- June 1, 2006**

**The Hotel Viking**

**Newport, Rhode Island**

**Final Report**

At the 2004 National Cooperative Damage Assessment Workshop, trustee and
industry (or Potentially Responsible Party/PRP) participants expressed
great interest in continuing the dialogue on damage assessment in
regional settings across the country. In response, there was a
commitment to organize a series of regional workshops. The objective of
these workshops is to allow practitioners to explore ways to improve
efficiency and coordination while also reducing conflict in natural
damage assessment and restoration (NRDA or NRD) cases. Ultimately, these
workshops are intended to be stepping stones to future discussions on
damage assessment practice outside the context of cases.

The Northeast Regional Workshop (*see [Agenda](../nrda/Agenda.pdf) and
[Registrants List](../nrda/Registrants%20List.pdf))* the third in this
series of regional workshops, was held on May 30 --June 1, 2006 in
Newport, Rhode Island. The workshop brought together approximately
one-hundred practitioners and regional representatives from government
trustees (Federal/state/Indian tribal), industry, and response agencies.

**[Pre-Meeting -- May 30]{.underline}**

**["NRDA 101" - Discussion and Q&A Session]{.underline}**

Participant feedback from the Southeast/Gulf Regional Workshop and the
level of participation in the Great Lakes Regional Workshop clearly
indicated a need for basic NRDA education. With this need in mind, the
evening before the workshop began, an optional session was hosted for
NRDA practitioners interested in learning about and discussing the
elements of the NRDA process. (S*ee [NRD 101 Basics
Presentation](../nrda/NRD%20101%20Basics%20Presentation.pdf), [NRD 101
Basics References](../nrda/NRD%20101%20Basics%20References.pdf), [NRD
101 Restoration Scaling
Presentation](../nrda/NRD%20101%20Restoration%20Scaling%20Presentation.pdf),
and [NRD 101 Restoration Scaling
Bibliography](../nrda/NRD%20101%20Restoration%20Scaling%20Bibliography.pdf)*)

Marana Valdez of Organizational Learning Associates, one of the workshop
facilitators, opened the session by providing the background and goals
for the workshop and this session. Dale Young, NRD Program Director with
the State of Massachusetts' Executive Office of Environmental Affairs
and Chair of the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO[^1]) NRD Focus Group, hosted the NRD 101
session. Dale asked participants to introduce themselves and asked how
many attendees had worked on NRD cases, either settled or implemented
cases. Approximately 10 people (25% of attendees) that they have been
involved in NRD cases. .

Eric English of National Oceanic and Atmospheric Administration hosted
the Restoration Scaling session. *(See biographies for [Dale
Young](../nrda/Dale%20Young%20Bio.pdf) and [Eric
English](../nrda/Eric%20English%20Bio.pdf))*

Approximately 40% of the workshop participants attended this session.

***Questions and Answer***

*To Dale Young:*

Q Is there ever a case where trustees can use funds other than to
restore -- if settled under CERCLA and OPA?

A No. I do not know of any cases under CERCLA and OPA where NRD can go
to general funds. CERCLA/OPA require that NRD funds be used to restore,
replace, or acquire the equivalent of the injured resources. Dale and
other respondents pointed to state law provisions (e.g., MA, NH, ME,
obscure provision for NY for oil spills) as examples that may not be as
restrictive as federal law, but state policy is to use funds for
restoration.

Q One attendee asked about the concept of "controlling" respecting
trustee jurisdiction. For example, would the state oversee resources due
to hunting?

A The state would still have oversight of resources regardless of
hunting season or any other recreational activity.

Q What is the nature and scope for Indian tribal resources?

A To address NRD concerns as a trustee, the Indian tribe must be
federally recognized as such. If the Indian tribe uses resources for
cultural purposes, the resources need not necessarily be on tribal
lands. Tribal resource rights may also be governed by existing US-Indian
tribal treaties.

Q Are there Federal resources that are not state resources?

A Generally not. Typically, it is the reverse of this. For example,
states typically have oversight authority over groundwater -- the
Federal trustees generally do not.

Q Can Federal trustees influence Federal PRPs, e.g., like DOE and DOD?

A Federal agencies cannot sue each other, but Federal trustees can
influence incorporation of restoration concerns, for example, into the
remediation process. This has occurred in the State of Virginia with the
U.S. Navy, for example.

Q Does the issue of 1980 CERCLA timeline by which trustee actions may
hold (e.g. the wholly before pre-enactment provision) also apply to
state actions?

A If a case is brought solely under state law, the CERCLA provisions do
not apply. Depending on the specifics of the case and the time period of
the release and injuries, States and Federal trustees, under CERCLA, may
have the opportunity to go further back in time; however, it becomes a
practical matter as to whether and to what extent state trustees can
assess injury.

Q Can you further explain the concept of baseline?

A Perhaps this is a discussion for an advanced course, NRD 102? Note
that baseline is an important and well-defined term under the NRD
regulations, i.e., the condition of natural resources and services but
for the incident. The challenge becomes whether we have the capability
to define "baseline" at the site in question. Baseline is significant in
that it serves as a benchmark for restoration.

*To Eric English:*

Q Regarding resource-to-resource scaling, there is often a reluctance to
provide compensation using out-of-kind resources. If out-of-kind
restoration appears to be the most appropriate approach, what is the
best way assure people that the resources being provided truly
compensate for the resources lost?

A If people are reluctant to accept out-of-kind compensation, it could
be an indication that the value of the proposed compensatory project is
low. Restoration scaling ultimately should reflect the value people
place on gains and losses. If there is a discrepancy between what people
want and the results of a scaling exercise, then the details of the
scaling exercise may require better explanation. Alternatively, the
metrics applied in the scaling exercise may not be appropriate and need
to be refined.

Q Is it possible to synthesize information from past scaling exercises
for the benefit of future cases?

A It is a good idea, and we are exploring ways to do that.

Q Are there any downsides of HEA?

A One downside is whether HEA reflects what people want versus what
scientists want. Scientists have a better understanding of ecosystem
services, but they may not select ecosystem metrics that correspond to
services most important to the public. Ultimately, it is the public
which must be compensated. Also, HEA works well when there is the
ability for compromise in a cooperative setting. The most difficult
challenge for HEA is developing tradeoffs for one habitat versus
another. Selecting metrics that capture ecological services equally well
in two different habitats is difficult. Of course, HEA is for ecological
uses and cannot address human-use issues. Please refer to the references
provided regarding the most appropriate use of HEA (Allen, Chapman and
Lane, 2005; Jones and Pease, 1997; Dunford, Ginn and Desvousges, 2004).

Q Are stated preference methods more resource intensive and expensive?

A Often they can be. They generally require a level of preparation and
rigorous analyses that is more involved than a simple HEA that relies on
information from the literature.

Q Do stated preference methods capture the full range of the publics
concerns and values?

A Stated preference surveys must simplify the available options in order
to avoid excessive burden on respondents. However, the options presented
in surveys are developed based on focus groups and pre-tests which
should address the full array of potential options and values. What
appears in the survey should represent all options relevant to
accurately assessing public preferences as determined in the focus
groups and pre-tests.

Q How do you determine which injury or loss is most important? To fish,
to the public, etc.? As an economist, do you have a hierarchy of what's
important?

A Generally, there is not a significant overlap in assessing ecological
and human-use losses. Assessment and restoration can therefore be
undertaken separately and without defining any order of importance.
However, in some situations, there may be a double counting issue, for
example, assessing oyster reef losses may be approached from either an
ecological or recreational perspective. In these cases both types of
loss have equal importance and must be addressed, but it is possible
that a single restoration project will fully compensate for the two
types of loss.

**[Day 1 -- May 31]{.underline}**

**[Workshop Introduction]{.underline}**

**[Workshop Goals and Agenda]{.underline}**

**[Interview Themes]{.underline}**

Iris Ioffreda and Marlana Valdez of Organizational Learning Associates
opened the two-day workshop by highlighting the workshop goals and
themes. Participants were asked to introduce themselves and their
affiliations.

Iris emphasized that while the genesis of these regional workshops was
the San Diego Cooperative Assessment Workshop, the focus of the regional
workshops is to discuss the breadth of issues involving NRDA, not just
cooperative approaches. Through dialogue, as provided by this workshop
and future opportunities, however, the workshop planners do hope that
more cases can be moved forward using a cooperative framework or
approach. Earlier regional workshops accomplished the goal of moving
cases forward cooperatively, and the workshop planners hope that the
Northeast Regional Workshop will offer additional opportunities to
integrate cooperative approaches and strategies into case work.

Iris explained the objectives of this workshop:

-   To provide regional practitioners with an opportunity to focus on
    issues and challenges pertinent to the region, including discussion
    of respective stakeholder interests;

-   For participants to explore creative solutions to problems and
    identify opportunities to improve the response and NRDA process.

-   For participants to discuss how affected parties might enhance their
    interaction and coordination, effectively addressing challenges and
    opportunities.

-   To develop and improve working relationships among practitioners in
    the region from various stakeholder groups.

-   To bridge the gap between less experienced and experienced
    practitioners.

Marlana presented background information on the workshop and how it was
designed. Nine people from the different sectors represented at the
workshop were interviewed to determine the most pressing challenges in
NRDA practice in the Northeast region and what participants hoped the
workshop would achieve. The interview data was broken done into themes
as follows:

**1. States**

States expressed a desire to learn more about the NRDA process and to
learn from other states' experiences. How have other states that have
established program found the funding for those programs. States with
fledgling programs want to learn from experienced practitioners.

**2. Confusion**

Lack of clarify about federal agencies/trustees/industry

A. Asserting jurisdiction

B. Timelines and operational procedures, particularly EPA

C. How much flexibility in procedure

D. How RPs are chosen -- some and not others

E. Little information about who does what in what states.

**3. Complex sites**

A. DOD facilities

B. Historical and complex sites

C. Large and complex sediment sites

D. Municipalities as RP

**4. Science**

Concern about measuring resource loss -- human, cultural, natural. How
accurate do measures need to be when working toward settlement ?

**5. Issues specific to the Northeast**

A. Groundwater issues

B. Working with the Coast Guard

C. Finding restoration alternatives in urbanized areas

**What Participants Wanted at the Workshop \--**

> 1\. Specific tools for improving NRDA. No broad brush strokes but
> specific information on what has worked and what hasn't. "We tried
> this; we tried that."
>
> 2\. Sharing of ideas among states with nascent NRDA programs -- how to
> elevate status. Money, staff, other resources.
>
> 3\. Meet counterparts in other states, and NRDA reps for feds, tribes,
> industry -- opportunities for networking.
>
> 4\. Clarity about how federal agencies operate.
>
> 5\. Ideas about how to move focus from cleanup to restoration or
> better integrate remediation and restoration.

Iris discussed various resources available to workshop participants,
including biographies and presentations as well as contact and status
information for state trustee programs. *(See [State Trustee
Efforts](../nrda/State%20Trustee%20Efforts.pdf))* She indicated that
there would be sufficient Q&A time available to voice or write down
questions for the speakers as well as to meet and greet fellow
practitioners.

Marlana set the ground rules for the workshop, requesting that
participants follow the ground rules to encourage open, honest dialogue:

-   Be present and engaged, participate fully

-   Open and respectful dialogue

    -   Listen

    -   Speak honestly

    -   It's OK to disagree.

-   No attribution -- all affiliations left at the door

-   In terms of discussions -- refrain from discussing case or site
    sensitive issues. Reference specific cases and past case approaches
    only when doing so will further the audience's understanding

-   Refrain from solicitations or marketing of products and services.

In addition to the presentations, the workshop offered a series of
posters on unique NRD programs, initiatives, and cases highlighting
cooperation, including:

-   [*NRD in Massachusettes*](../nrda/NRD%20in%20Massachusettes.ppt)

-   [*Promoting Efficient NRDs in Small
    Spills*](../nrda/Promoting%20Efficient%20NRDs%20in%20Small%20Spills.ppt)

-   [*Regional Cleanup and Restoration Initiative in Upper Delaware
    Estuary*](../nrda/Regional%20Cleanup%20and%20Restoration%20Initiative%20in%20Upper%20Delaware%20Estuary.ppt)

-   [*Athos I - Delaware River Oil
    Spill*](../nrda/Athos%20I%20-%20Delaware%20River%20Oil%20Spill.ppt)

-   [*Chalk Point Cooperative Assessment, Patuxtent,
    MD*](../nrda/Chalk%20Point%20Cooperative%20Assessment,%20Patuxtent,%20MD.pdf)

-   *[North Cape Poster 1](../nrda/North%20Cape%20Poster%201.ppt) and
    [Poster 2](../nrda/Norh%20Cape%20Poster%202.ppt)*

Marlana ended the introduction by introducing the Keynote speaker \-- W.
Michael Sullivan, Director, Rhode Island Department of Environmental
Management.

**[Workshop Introduction/Keynote Address]{.underline}**

W. Michael Sullivan, Director of the Rhode Island Department of
Environmental Management, opened the meeting. (S*ee [Michael Sullivan's
Presentation](../nrda/Michael%20Sullivan%20Presentation.pdf) and
[Biography](../nrda/Michael%20Sullivan%20Bio.pdf)*) Mr. Sullivan thanked
the organizers for giving him the opportunity to give the keynote
address. His interest and past experience has focused on using policy to
direct science. Mr. Sullivan spoke about Rhode Island's legacy from DOD
(e.g., the Navy) and landfill sites (in North Smithfield near the
Blackstone River) as well as spills such as the North Cape. Director
Sullivan noted that with vision, commitment, sound partnerships

and persistence, progress has and can be made -- he discussed a variety
of environmental goals achieved to date. He underscored that NRD can
best be achieved through cooperative efforts among the parties involved.

Mr. Sullivan's goal is to make Rhode Island fishable, swimmable, and
playable despite having the hardest working rivers in the country.
Empowered by the Governor of Rhode Island and with the help of other
agencies, he hopes to achieve this mission. Mr. Sullivan thanked
everyone who worked so diligently with the State of Rhode Island to
restore its natural resources, imploring all to continue the struggle to
work cooperatively, especially in times when funding and staff resources
are limited. The keys to future success also lie in establishing strong
partnerships that allow parties to share resources, among other things.

**[Stakeholder Perspectives on NRDA Issues]{.underline}**

The morning's panel discussions focused on response and NRDA concerns
from the perspectives of the various stakeholders involved in a site.
Panelists representing trustees, industry, and the response community
were asked to address the following questions:

1.  What challenges and opportunities does each stakeholder group
    confront in working with a site? That is, what does each stakeholder
    group need to understand about other stakeholder groups involved in
    the site?

2.  To ensure a productive outcome, what does each stakeholder need from
    the others involved in the site?

3.  Similarly, what can each stakeholder offer to others involved in the
    site?

4.  How might we improve the response and NRDA process?

Marlana Valdez outlined these four questions and introduced the
moderator, Tom Brosnan, Atlantic Branch Chief with NOAA's Office of
Response & Restoration.

***Panel Session: Stakeholder Perspectives***

Tom Brosnan, Atlantic Branch Chief with NOAA's Office of Response and
Restoration and moderator of this panel, welcomed the workshop audience.
Tom highlighted that the purpose of this panel is to communicate the
perspectives of each stakeholder community. To advance the science (or
practice) of NRDA, there is a need to be more candid and increase
communication and expectations between disciplines, stakeholders, and
the public. Hoping to draw candid commentary and diverse perspectives
from the panelists, he said this is a unique panel reflecting a
collection of provocative speakers, deep thinkers, and cross-dressers.
Tom introduced each panelist.

Tom then proceeded to give his presentation on cooperative NRD. (S*ee
[Tom Brosnan's Presentation](../nrda/Tom%20Brosnan%20Presentation.pdf)
and [Biography](../nrda/Tom%20Brosnan%20Bio.pdf))* After briefly
highlighting the NRD process vis-à-vis the prior evening's training, Tom
explained some of the essential elements and benefits of cooperative
assessments. Tom encouraged folks to become familiar with and take
advantage of cooperative opportunities, citing NOAA's web site on this
topic that could help guide such efforts. See
<http://www.darp.noaa.gov/partner/cap/index.html>

Barbara J. Goldsmith, President of Barbara J. Goldsmith & Company,
followed with a comparison of industry's national practice versus
progress in the Northeast Region. (S*ee [Barbara Goldsmith's
Presentation](../nrda/Barbara%20Goldsmith%20Presentation.pdf) and
[Biography](../nrda/Barbara%20Goldsmith%20Bio.pdf))* Since 1988, Barbara
has also served as Director of the Ad-Hoc Industry Natural Resource
Damage Group, a multi-sector group of companies. Barbara noted that many
settlements in the Northeast appear to be cash-outs as opposed to
restoration implementation, that there is a potpourri of Federal and
state laws governing similar processes, many injuries are focused on
groundwater and soil, and cooperative assessment are only now starting
to emerge. She indicated that many important sites and actions can
inform us such as New Bedford Harbor, the Housatonic and Hudson Rivers,
the North Cape oil spill, and New Jersey statutory and regulatory
changes governing natural resources. Barbara indicated that the real
challenge in the Northeast is to determine how to resolve NRD not just
for easy sites but complicated sites. To this end, there needs to be a
sound foundation for a working relationship (see this and follow-up
slides on this topic). Nationally, this may mean a flexible, more
unified NRD practice. She cited the on-going DOI Federal Advisory
Committee Act, or FACA, process that may help to achieve greater
consistency in the CERCLA NRD process with OPA NRD process (see:
<http://restoration.doi.gov/faca.html>). Site-specifically, there ought
to be, among other things, a framework for decision making, identified
endpoints, measures of success, open dialogue, and joint problem
solving. Barbara closed her brief time by referring to various resources
available to folks (see last slide).

Sharon Brooks, Associate Economist with the Natural Resources Damages
Unit of the Division of Fish, Wildlife and Marine Resources within the
New York State Department of Environmental Conservation, discussed state
trustee achievements and interests. (S*ee [Sharon Brooks'
Presentation](../nrda/Sharon%20Brooks%20Presentation.pdf) and
[Biography](../nrda/Sharon%20Brooks%20Bio.pdf))* Sharon, who is a member
of the ASTSWMO NRD Focus Group, provided a short history, description,
and activities of ASTSWMO, an organization that helps address
consistency of issues and practice and provides a forum for dialogue
with all stakeholders. (See Footnote 1) Sharon highlighted a wealth of
workshops and materials sponsored and produced by ASTSWMO that may also
be of great use to NRD and response practitioners. Sharon underscored
some major challenges facing the states, namely better coordination and
funding. Sharon challenged industry to step up to the plate if they are
truly interested in cooperation and resolving their liability.

Tom noted the solid EPA presence at this workshop when introducing Rich
Cavagnero, Deputy Director of the Office of Site Remediation and
Restoration (OSRR) in USEPA Region 1, New England, who came to talk
about his region's organization, philosophy, and approach. (S*ee [Rich
Cavagnero's' Presentation](../nrda/Rich%20Cavagnero%20Presentation.pdf)
and [Biography](../nrda/Rich%20Cavagnero%20Bio.pdf))* Rich highlighted
the need for better measures of success, the need and capacity to work
together with the trustees early on in the response process to expedite
remediation and restoration concerns, the pressure to assess cost versus
benefit, and the fact that there are a lot of public expectations, at
times contradictory, on EPA and Superfund lately. *(See [OSWER Directive
9285.6-08 "Principles"
slide](../nrda/Rich%20Cavagnero%20Presentation.pdf))* Rich underscored
various activities in the Northeast region that are focused on
addressing some of the more seminal concerns under Superfund.

William (Bill) H. Hyatt, Jr., Partner at Kirkpatrick & Lockhart
Nicholson Graham LLP, spoke in the role of common counsel for PRP
groups. (S*ee [Bill Hyatt's
Presentation](../nrda/Bill%20Hyatt%20Presentation.pdf) and
[Biography](../nrda/William%20Hyatt%20Bio.pdf))* He described some of
the dynamics affecting PRPs, noting that there is no single "PRP
perspective," but there are common themes. Bill indicated that while
there is a good understanding of the cleanup program (response process),
that is not true of NRD. He underscored the need for education. He also
stressed that there is fear of NRD because liability is potentially
daunting and not well understood. Part of the problem is the lack of
success stories or communicating such stories. Bill stated that the
problem is that PRPs are common from many different perspectives but
have various agendas and experiences. It is therefore imperative to
communicate that we need to do things right the first time, to allow for
creative solutions, and to provide opportunities for building trust by
working together. Bill focused on the PRP's objectives when entering an
NRD, and factors favoring and disfavoring cooperative agreements *(see
[presentation slides](../nrda/Bill%20Hyatt%20Presentation.pdf))*. Bill
highlighted the challenges respecting how best to apply baseline, how
best to integrate remediation with restoration, and the notion that NRD
can't be done more expeditiously. These and other concerns also surfaced
in the early years in the cleanup process, but now that many PRPs have
worked through cleanup processes, they are no longer central issues in
the remediation area. These perceptions, however still appear to apply
to NRD.

Sherry Krest, Environmental Contaminants Program Leader with the U.S.
Fish & Wildlife Service's Chesapeake Bay Field Office, focused her talk
on the natural challenges and opportunities respecting personnel and
processes. (S*ee [Sherry Krest's
Presentation](../nrda/Sherry%20Krest%20Presentation.pdf) and
[Biography](../nrda/Sherry%20Krest%20Bio.pdf))* She noted that personnel
and process issues arise both in the context of integrating restoration
into the response process and also during the remaining NRDA process.
Sherry hoped that the audience would come away with the nuggets of her
last slide, that is to be flexible and realistic, to think outside the
box, to accept a level of risk, to respect other opinions and interests,
to share resources, to find a common goal, to talk about restoration
projects early and often, and to get the "snakes out on the table" (to
lay out concerns truthfully).

Charles (Chuck) Nace, Environmental Toxicologist, Technical Support
Team, Emergency and Remedial Response Division, USEPA Region 2, talked
about his region's perspective and approach. *(See [Chuck Nace's
Presentation](../nrda/Chuck%20Nace%20Presentation.pdf) and
[Biography](../nrda/Charles%20Nace%20Bio.pdf))* Chuck was open to
learning how to incorporate more NRD concerns into the cleanup process
in EPA Region 2. Chuck discussed his region's issue of how to
incorporate trustee concerns in the cleanup process given statutory
requirements and constraints. He stated that there is a desire and
mechanism to better communicate with the trustees through, for example,
via broadcast e-mails of RODs (Records of Decisions) to the Department
of the Interior. Based on Chuck's Passaic River experience, he
underscored that the more that EPA puts into coordination, the more they
get out of it.

***Questions and Answers***

*To Tom Brosnan:*

Q Is it required that trustees have a funding agreement in place before
undertaking a cooperative assessment?

A Cooperative assessments span a wide spectrum of experience and a
funding agreement is not a de facto requirement for trustees to
participate. However, the trustees' experience is that cooperative
assessments are most successful when supported by a funding agreement.
We believe that dedicated funding enables the trustees to fully
participate and can expedite the assessment, ultimately saving money in
the long-term.

*To Barbara Goldsmith:*

Q How do you move from a process-focused to restoration-focused
approach?

A To do this, you have to have a backdrop of a strong framework that
governs liability. Trustees need to show PRPs that they can
expeditiously resolve NRDs and provide certainty. Of course, much is a
function of the people involved in working on the case.

Q How does a company or PRP disclose its perceived liability?
Externally? Internally? Trustees often have to spend considerable
resources documenting/determining liability. If this process was
expedited, we could get to restoration faster.

A No response provided.

Q Since NRDA and restoration are liability-driven from a company
perspective and since company attorneys fight to "avoid" such liability,
how do companies override their liability concerns in order to develop a
cooperative action? Is it only "clear" to the company when a liability
determination is inevitable?

A No response provided.

Q Will the DOI advisory committee (the FACA) be recommending regulatory
or statutory changes regarding NRDA? Are such changes under discussion?

A No response provided.

*To Billl Hyatt:*

Q What would you consider a "successful precedent" in the NRD field?

A Success is a settlement that everyone buys into by consensus. There
need to be more settlements, which then need to be advertised.

Q When would PRPs feel they have a good deal?

A There is a direct parallel between remediation and NRDA. History
likely need to have learning curve for comfort. Ultimately, any
settlement occurs because the parties feel that the expense they have
undertaken is reasonable in relation to their exposure. I think the
problem is that private parties have difficulty quantifying their
exposure. As I said, the New Jersey formula is an example of how doing
that can inspire settlements.

Q Regarding a question posed to Rich Cavaegnero respecting good or bad
examples of integration of remediation with restoration.

A New Jersey has done a commendable job regarding groundwater formula,
which is arbitrary, but provides a down and dirty means to get to
settlement that is perceived fair. This eliminates process and goes to
settlement, providing certainty and predictability.

Q When dealing with multi-party/multi-contaminant problems where only a
minority of companies is known and viable and these companies are seen
as minor contributors to the problem, how and why would that minority of
companies want to "cooperate"?

A The same principles apply to evaluating a settlement in this context
as in a simple traffic accident in the sense that the private parties
will make the comparison described above. What factors might motivate a
settlement (or a cooperative NRDA)? Early definition, with minimal
process, of the exposure, recognition of orphan causes of the NRD, cost
savings from the lack of extensive process. I also think that
disparities between the values trustees and private parties place on
assets (private parties value land at a dollar, the trustees believe
that as a natural resource, the land is worth \$100) allows leveraging
which promotes settlements. In the end, there has to be a feeling of
trust that the two sides are being fair to each other.

Q My understanding is a successful NRDA process depends upon all parties
and trustees being reasonable, there being a consensus, shared
objectives, and a focus on restoration. What if parties or trustees are
unreasonable, there is no consensus, there are different objectives, and
there is little focus on restoration?

A See my answer above. This is the dynamic you try to avoid. I would
continue to engage, try to build trust, and hope for changes of heart. I
think that approach applies on both sides of the table.

Q Is it necessary to have a legally-binding, cooperative agreement
before entering into a cooperative assessment?

A From the private party perspective, probably yes, but minimally. I am
in favor of baby steps, getting to the table, starting working together,
even on tiny things, to start accomplishing things and to give parties
an opportunity to measure each other's reasonableness. If the demands
for a cooperative agreement are too high, the private parties may well
be driven away from the table. I think that a cooperative assessment
should be viewed as building a relationship rather than as an
enforcement exercise (even though in fact it is both). I think talking,
agreeing on the littlest things, is a key ingredient in building the
relationship. Making of list of expectations and then seeing how you can
put the two together, could be an example.

*To Sharon Brooks:*

Q Any suggestions as to how to get all parties talking about resource
\"services\", early and often? This seems to be anathema to many
trustees.

A Take each case on its own. Find a solution regarding case
circumstances. The states cannot force this issue.

Q How do states coordinate with Federal trustees at non-NPL (National
Priority List) sites? At

state-lead sites? At Brownfields?

A In New York, we coordinate the same regardless of site status since it
is usually the same individuals involved. There may, in some instances,
be a more of state-led or different levels of involvement due to the
nature of injuries, extent of injuries or other aspects of the case. 
Exception is made to Brownfield sites, in NY there is presently no
provision for NRD in the state regulations.

Q Why isn\'t more effort focused on resolving NRDA issues and promoting
restoration at these less complex sites versus NPL mega sites?

A Given existing constraints, prioritization is a reality. I believe
NRDA practitioners work very hard to resolve all sites or cases eligible
for resolution. NPL sites, in general, are larger, more\
contaminated and impact larger segments of the public than other sites
and therefore are appropriately priorities.

*To Sherry Krest:*

Q Do you feel that trustees need to compromise their goals when NRD
liability is negotiated in the context of "integrated remedy" consent
decree with EPA? Would trustees feel pressure if the EPA process is
moving well and trustees may need to compromise?

A The trustees need to have some basic level of information to move
forward. The issue is how you integrate restoration concerns if the
remedy is not nailed down.

A The trustees need to have some basic level of information to move
forward. The issue is how you integrate restoration concerns if the
remedy is not nailed down.

Q What role should legal staff play in the cooperative assessment
process? When should they or should they not be involved?

A In cooperative cases that I have worked on, the technical people
determine the injury and choose the preferred restoration option. It is
the responsibility of trustee representative to inform their legal
council of the technical decisions that are being made during the
process. The legal team is engaged when the decisions are finalized and
ready to be documented and memorialized.

Q Are there settled cases that can be reviewed using "integrated
remedies" in the Maryland-Delaware area? If so, what are they?

A Halby Chemical (Wilmington, DE) and Spectron (Elkton, Maryland)

Q Please explain how you settled the case without agreeing on injury.
For example, what were the dynamics of the discussion? How was the
injury addressed in the settlement document? How did the trustees
address the injury issue during the public review?

A We (RP and Trustees) focused on restoration. Once we selected a
project and scaled it, we found that it would have cost more to argue
over the difference in the injury numbers than to increase the size of
the restoration project. Therefore, we agreed to disagree and moved
forward with implementation. In the Final Report entitled "Acute
Mortality to Birds' (March 2001), there are two numbers used -- an RP
number (285) and a Trustee number (361) when determining the number of
ruddy ducks killed. The production forgone was 384 for the Trustees and
303 for the RP. In the DARP, the Trustee number is referenced because it
was used to scale the restoration project. The case is the Chalk Point
Oil Spill, Swansons Creek, Maryland.

Q Can you provide suggestions to possibly use common experts for
trustees and PRPs?

A It depends on what expertise you're looking for. I suggest asking
other NRDA practitioners who they recommend for a particular task or
study.

*To All Trustees:*

Q Sharon (Brooks) mentioned her wish list for the needs of the process.
What are yours (for Sherry Krest and Tom Brosnan)?

A (Tom Brosnan) Tom thought that Sharon's list covered the bases,
referring to those ideas in the breakouts.

Q Sherry Krest mentioned the impacts of political decisions on positions
taken in negotiations. What success have you had in filtering those
positions versus those based on science and practicability? Or to what
degree is that important?

A (Tom Brosnan) While there are always outside influences and factors to
consider, NRD is typically based in science and fact-finding. We have
not really had issues where outside influences derailed restoration
projects.

*To Rich Cavagnero:*

Q What is a successful integration or a bad experience?

A Success is first getting to a remedy decision that comports with the
NCP and EPA's program guidance while also addressing trustee concerns
that remediation serve as primary restoration. Remedy decisions with
trustee buy-in increase the chances of achieving comprehensive
settlements with prps that address both remediation and restoration.

Because remediation constitutes primary restoration, there is a natural
tendency for trustees to exert pressure on EPA to maximize remediation,
perhaps without concern for EPA's need to address the NCP's balancing
and modifying criteria. The parties need to recognize this tension as
normal and accept that there will be sites or situations where
remediation decisions do not fully satisfy trustee restoration needs,
which will then have to be addressed by other means.

EPA Region 1 has enjoyed a close working relationship with both NOAA and
DOI/USF&WS for many years and has not had any major negative experiences
with either trustee.

Q Isn't Congressional "interest" in site cleanups, to scrutinize and
control cost, really investigation driven?

A Recent Congressional interest in large-scale dredging remedies is
focused on ensuring that the short term risks and/or negative impacts of
remedy implementation are adequately assessed prior to remedy selection.
This assessment has long been required by the NCP, but some in Congress
apparently believe that EPA has downplayed these risks and impacts in
its analyses.

Q Isn't cost-benefit analysis a code word for cost cutting for PRPs re
NRD?

A The Superfund statute does not require cost-benefit analyses, but it
does require EPA to select cost-effective remedies. Thus, the
effectiveness of various alternatives and varying levels of remediation
in achieving cleanup objectives must be evaluated relative to the costs
of those alternatives. Higher cost remedies should be proportionally
more effective than lower cost remedies if they are to be considered
cost-effective.

*To Chuck Nace:*

Q EPA Region 2 has a ROD-focused broadcast e-mail. Why not have this
broadcast at the RI/FS (Remedial Investigation/Feasibility Study),
allowing time to incorporate restoration with remediation? Why not
extend the broadcast e-mail approach with DOI to other Federal as well
as state trustees?

A DOI asked for this initially. The broadcast is working well. Expanding
the broadcast to other trustees would be good idea. EPA does notify
trustees when sites are listed, but we could work better and will likely
talk about it. Good idea.

Q Has the rate of listing new NPL (National Priority List) site changed,
fewer now than in the past?

A New sites are proposed for the NPL as they are discovered and
evaluated. A comparison of past and present numbers is not a reliable
measure of the Superfund program as there are many factors that can
affect the number, such as the number of sites discovered, the ability
of states to address the sites, etc. A better measure of environmental
cleanup would be to determine the number of contaminated sites that are
in existence and see how many of them are being addressed through local,
state, federal, or private actions. I am not aware of any group that is
tallying this information.

*To All EPA:*

Q What is your wish list in the NRD process based on Sharon Brook's
presentation)?

A (Rich Cavagnero) EPA's wish is that Federal and State trustees
identify their sites/areas of interest early on and articulate concerns
before remedy selection.

A (Chuck Nace) I would echo Rich's comment. Early involvement is the key
to ensuring that data that can be collected to assist in NRD claims. I
spoke to several people at the meeting that indicated that trustees, in
general, do not want to "show their hand" too early in the process,
which leaves EPA wondering if an NRD claim will be made and what the
trustees really need for individual sites. It would be nice to see the
trustees submit a preliminary natural resource survey (PNRS), which
according to the NCP §300.615(c)(1) and EPA Eco Update Volume 1, Number
3 may be requested and paid for by USEPA, that contains a conclusive
statement whether or not the site is a trustee concern from a NRDA
perspective and also to identify specific items that are needed during
the pre-listing stage in the Superfund process. This would aid EPA in
determining exactly what the trustees need, why they need it, and allow
data needs to be incorporated into the RI/FS investigation if permitted
under CERCLA.

*To All Panelists:*

Q Are "restoration" projects for NRD possible/better approaches to
environmental improvement than sediment "remediation" at multi-source
sites in urban areas?

A (Tom Brosnan) We traditionally view a good remediation as necessary to
achieve or approach primary restoration.

A (Rich Cavagnero) I don't think restoration projects can substitute for
public health or ecological risk reduction necessary to achieve
minimally protective levels. Once those levels are achieved, however,
the incremental risk reduction achieved by higher levels of remediation
might be evaluated against the benefits of restoration projects.

A (Bill Hyatt) This is a very interesting question. My suspicion is that
sediment remediation (ie, dredging), especially on a large scale is
going to be fraught with problems (e.g., re-suspension, release of
stable contamination that is not exposed to the ecology or human
activity, treatment and disposal logistics). I think that the first step
in an urban river restoration should be to develop a vision of what is
reasonably possible (like EPA taking an early, preliminary look at
alternatives). The vision should include restoration projects that will
improve the condition of the urban river and increase its use by humans
living in the area. If removing contaminated sediments, on balance,
causes more harm than good, then I think restoration projects should be
preferred.

Q Why have any NRD "settlement" be translated to money? Money is a human
invention having no relation to the environment -- instead why not have
actual restoration, with recovery of "interim damage being in terms of
land transfers and active overstocking unaffected areas and monitoring
to ensure successful recovery?

A (Tom Brosnan) While there's a preference for crafting settlements in
terms of projects that satisfy the liability, sometimes monetization is
required. For example, when the responsible party just wants to cash
out.

A (Rich Cavagnero) Simple put, the money can buy restoration later after
remediation is complete and the public can weigh in on what they
consider to provide the most benefit.

A (Bill Hyatt) I am afraid cost cannot be avoided, because there has to
be some metric by which parties measure their exposure and the value of
their settlement. But see above regarding how different parties value
things differently. Cost can be an opportunity if it is used
imaginatively.

Q Given the theme of "remediation and restoration" and the bullet on the
introduction slide -- "The preferred calculation of damages is the cost
of implementing this restoration" -- Is the concept of settlement via
deed trades and acreage calculations consistent with this theme? What is
the future of these settlement mechanisms?

A (Tom Brosnan)

Q Please share your perspective on the differences that one encounters
pursuing a cooperative NRD in "CERCLA" versus "OPA".

A (Tom Brosnan) Cooperative assessments under OPA have lent themselves
more readily because of the immediacy of spills, more acute nature, and
the fact that there are fewer responsible parties to engage. In
contrast, CERCLA incidents are more challenging in that there is usually
a greater and varied history respecting contamination, the type of
contamination is more persistent, and there are typically more
potentially responsible parties. However, we have experienced quite a
bit of success for CERCLA sites despite these greater challenges and
fully expect cooperation is possible if the parties involved are
motivated to resolve liability and achieve restoration.

A (Bill Hyatt) I am afraid I have no relevant experience.

Q To what extent can/should restoration projects for NRD promote local
economic redevelopment? Is the latter a relevant consideration?

A (Tom Brosnan) While the goal of NRD restoration projects is not to
spur economic development, clearly such projects can and have had side
benefits to the local economy --

especially when addressing recreational or other human use activities.

A (Bill Hyatt) I think the definitions of NRD require that economic
considerations be taken into account. Isn't that what "lost use" really
means?

Q Should trustees and PRPs work together in managing public expectations
to promote reasonable and prompt settlements?

A (Tom Brosnan) Most definitely, both stakeholders need to ensure that
their messages are consistent. However, care must be taken to ensure or
thwart the perception that the stakeholders conspire to achieve public
buy-in.

A (Bill Hyatt) Definitely. See my comments about a vision above. I also
think that managing expectations, a critical component of Superfund, is
an excellent means of aligning the thinking of the parties themselves.

Q Tom mentioned that the focus of NRDA should be on restoration, not
process. Not everybody gets that. What can be done to move the
process-intensive cooperative assessments to restoration-focused
assessments?

A (Tom Brosnan) In my slide on "Elements of a Cooperative Assessment," I
list some of issues that should provide a greater focus on restoration
results as opposed to process, namely focusing on restoration,
integrating restoration with the response/remedy, defining and
committing to shared objectives, using reasonable assumptions based on a
sound framework for cooperative planning, building consensus, sharing
relevant data, tailoring public participation, and providing funding o
ensure trustee participation. Early agreements that heed these elements
and provide a sound construct cannot avoid the process for process sake.

A (Bill Hyatt) I think the trustees should figure out how they can get
to the point of negotiating settlements as quickly as possible. HEA and
the New Jersey formula are examples of how getting to "yes" quickly can
be a huge benefit. Every dollar spent on process is a dollar that could
be spent on restoration, and during the time when process occupies the
attention and expense of the private parties.

***Comments***

C1 There needs to be some discussion on PRP-Trustee settlements at
relatively small CERCLA/RCRA/state waste sites where more study (i.e.,
NRDA) is cost and results prohibitive. Hence, a NRDA settlement based on
existing remediation collected data.

**Following the question and answer period, Tom asked the panelists to
respond to "urban myths" about NRDA, i.e. statements that people
frequently hear about NRD work that may or may not be true. Those
statements and panelists' responses follow:**

1\. Using economic surveys to ask the public what loss they've suffered
and what restoration they want is ridiculous!

-   (Sharon Brooks) We can't always speak for public. But public has its
    place. Survey tools are well accepted, but this is a new arena in
    NRD.

-   (Barbara Goldsmith) Where surveys have been used, they have been
    over the top regarding level of damages. These tools are very
    time-consuming. Use of surveys is a show stopper and antithesis of
    people getting and working together. If you can get to valuation
    other than use of controversial means like CV (Contingent Valuation)
    and conjoint analysis, that would be positive.

-   (Rich Cavagnero) The public isn't monolithic. Finding out what
    various segments of the public value and why is important to making
    risk management decisions which often involve trade-offs among
    competing concerns and objectives.

2\. The Trustees and EPA are never satisfied with the amount of data to
be gathered! Data needs are unreasonable and unrealistic!

-   (Chuck Nace) CN -- At the time, it may seem unreasonable, but EPA
    may not be aware of trustee needs. EPA regions would benefit from
    NRD 101 training as there is not a broad understanding of needs. Are
    RPMs (Regional Project Managers) coordinating because its required
    or needed? It's both.

-   (Rich Cavagnero) Project managers (RPMs/OSCs) and their managers are
    budget and time-constrained and generally want the least amount of
    data necessary to enable sound analysis and decision-making. EPA
    risk assessors, the various review boards, trustees, states, and
    citizens inevitably want more data to increase their comfort levels;
    they are not bound by the constraints in EPA's budget in their
    comments.

-   (Barbara Goldsmith) The challenge is to positively leverage data
    collection to get economies of scale. It would be useful in using
    such approaches as data quality objectives to better define data
    needs and quality.

-   (Tom Brosnan) Trustees can certainly be satisfied on the amount of
    data collected. But there needs to be some agreement between
    trustees and PRPs on data needs and how data are going to be used.
    If we agree to let the data tell the story, that works -- w/out
    which it's difficult.

-   (Workshop Participant 1) The issue is that anyone might be asking
    for data, not just the trustees and EPA. This is not just a
    trustee/EPA problem.

-   (Bill Hyatt) The problem is conducting a scientific study in an
    enforcement context.

-   (Workshop Participant 2) Is there any experience with arbitrators or
    mediators to help?

-   (Bill Hyatt) Yes, but agencies can't be seen to be compromising
    remedy selection, a dynamic that makes remedy selection and I think
    restoration non-negotiable. EPA has an ADR (Alternative Dispute
    Resolution) office that can be very useful in coalescing private
    parties and in resolving other conflicts, but I have never seen it
    used to pick remedies or restoration.

-   (Workshop Participant 3) Mediation was used in the Housatonic River.

3 Trustees are unrealistic in considering baseline!

-   (Sherry Krest) Trustees can't get away with not addressing it. It is
    challenging, especially in urban areas. But it must be factored in.

-   (Tom Brosnan) It helps to parse baseline out by injury type (e.g.,
    fish advisories or no, etc.); though some injuries categories like
    benthos can still be challenging.

-   (Workshop Participant 1) Is there any learning regarding baseline?

-   (Workshop Participant 2) Look at the NOAA JAT (Joint Assessment Team
    web site (<http://www.darrp.noaa.gov/partner/cap/relate.html> ),
    where you can find some useful information.

-   (Workshop Participant 3) Baseline can get confused by the footprint
    of the release versus the extent of impact. These distinctions need
    to be made.

-   (Workshop Participant 4) The challenge for baseline is most acute in
    urbanized areas. It helps to ascertain what you know and what can
    you extrapolate based on information.

4 Some PRP consultants prolong the process, to their benefit!

-   (Bill Hyatt) PRPs know about these people and try to identify them
    and not use them. Spending money on unneeded process does not serve
    PRPs well. I would love to have the agency tell me if they think our
    consultant is becoming a problem. In fact, that has happened and I
    have fixed it.

-   (Tom Brosnan) In other cases where this has been apparent, the
    trustees have asked to deal directly with the principles.

> []{.mark}

5 Co-trusteeship is the bane of NRDA!

-   (Bill Hyatt) In my mind, this is an aspect of the larger problem;
    that the trustees have to coalesce just as the PRPs do, a very
    difficult problem given the numbers of trustees (including states,
    tribes, etc) and agencies with different cultures.

-   (Tom Brosnan) Trustees need to try harder to come to the table and
    speak with one voice.

> []{.mark}

6 PRPs are only interested in minimizing costs!

-   (Rich Cavagnero) This is generally true and EPA needs to justify
    remediation costs in terms of public health and ecological risk
    protection. The statute requires EPA to select cost-effective
    remedies.

-   (Bill Hyatt) Of course PRPs are interested in costs. The problem
    with this question is that it is the wrong question. The real
    question is what it means to minimize costs. In my view, as I said
    at the conference, is doing the job right the first time. That
    principle applies to studies and to work. Every time PRPs have to do
    something over, costs will not be minimized.

-   (Tom Brosnan) Being cost-effective should be everyone's goal and no
    one benefits from wasted funds. Cost-effectiveness can be improved
    by integrating remediation and restoration from the beginning, and
    include it in planning, data collection, and implementation.

> []{.mark}

7 Trustees are more interested in process than timely restoration!

-   (Bill Hyatt) I think that to the extent this is true (and I
    obviously can't get into the heads of the trustees) it's because the
    challenge of working with so many stakeholders drives toward
    increased process. How else can decisions be made among agencies of
    coordinate authority but to force everyone to go through a process
    that forces decisions to be made?

-   (Tom Brosnan) Process can be reduced when there is greater comfort
    among the parties that there's a common vision and things are
    proceeding fairly. Process is increased when litigation is a
    concern.

> []{.mark}

8 EPA isn't interested in working with the trustees!

-   (Rich Cavagnero) EPA is required to coordinate with trustees and, as
    mentioned earlier, has a self-interest in ensuring trustee concerns
    are addressed so that comprehensive PRP settlements can be achieved.
    This coordination must occur early on in the investigation process
    to avoid disputes at remedy selection time.

-   (Bill Hyatt) I suspect EPA sometimes sense the same frustrations
    with the trustees described above as the PRPs do, and the
    frustration tends to make their own job more difficult.

-   (Tom Brosnan) I think on the whole EPA is interested in working with
    the trustees, but there are likely some exceptions among individual
    project managers who might be concerned about delays. Trustees will
    improve coordination by speaking with one voice and being
    reasonable, flexible, and timely with their input and demonstrating
    that coordination will yield a better, more cost-effective outcome
    for all involved. PRPs should demand close EPA-trustee coordination
    to ensure this.

9 Everyone agrees that revamping the CERCLA NRD regulations will benefit
PRPs, trustees, and the resources, but it'll never happen!

-   (Bill Hyatt) I think a simplified set of regulations would be very
    helpful. I also think that the divisions within the trustee
    community will make it very difficult to promulgate a single set of
    regulations (especially with tribal and state involvement).

-   (Tom Brosnan) Revamping the CERCLA regulations will take political
    will and that will be enhanced by trustees and PRPs both asking for
    it to happen.

> []{.mark}

10 Trustees are more interested in getting their assessment costs
covered than in restoration!

-   (Bill Hyatt) I think that the first subject that comes up in any
    negotiations is the recovery of assessment costs, so that tends to
    be the early focus and may lead to that impression among PRPs.

-   (Tom Brosnan) Trustees aren't more interested in assessment costs
    than restoration, but recovery of these costs is a legitimate part
    of a NRDA claim.

**[Regional Case Study Presentation: A Cooperative Assessment at a RCRA
Facility -- Stay Tuned!]{.underline}**

This panel, a cooperative case study at a RCRA facility (S*ee [Regional
Case Study
Presentation](../nrda/Regional%20Case%20Study%20Presentationl.pdf)*[)]{.underline},
was moderated by Stephen Davis, Senior Scientist at ENTRIX. (*See
[Steve's Biography](../nrda/Stephen%20Davis%20Bio.pdf)*) Steve also
represented Todd Williams, Vice President and Technical Director at
ENTRIX, who also participated in the settlement of this case. Steve
underscored that cooperative settlements are possible, that there are
urban myths (as exemplified above) that must be overcome, and that it
takes some upfront work. Panel members included:

-   Cynthia Jernigan, Hazardous Waste and Remediation Program Manager of
    the Environmental Programs at Kimberly-Clark (*See [Cindy Jernigan's
    Biography](../nrda/Cindy%20Jernigan%20Bio.pdf)*) -- Cindy talked
    about the genesis of the site and its scope.

-   John Williams, Vice President and Senior Consultant at Woodard &
    Curran (*See [John Williams'
    Biography](../nrda/John%20Williams%20Bio.pdf)*) -- John discussed
    the background of the site and its challenges.

-   David Van Slyke, Esq., Chair of the Environmental Practice Group at
    Preti Flaherty Beliveau Pachios & Haley LLC (*See [Dave Van Slyke's
    Biography](../nrda/David%20Van%20Slycke%20Bio.pdf)*) -- David
    addressed how NRD served as the framework for a settlement at a RCRA
    site, it milestones, and the mechanics of the settlement.

-   Nan Cumming, Executive Director of Portland Trails (*See [Nan
    Cumming's Biography](../nrda/Nan%20Cumming%20Bio.pdf)*) -- Nan
    informed those in attendance on how Portland Trails, a land trust,
    came to be involved at this site by providing restoration options
    (i.e., trails). She also touched on the pros and cons in working
    with an NGO (Non-Governmental Organization).

-   Scott Whittier, Director of the Oil and Hazardous Waste Facilities
    Regulation Division with the Maine Department of Environmental
    Protection (DEP), stood in for Andrew C. Fisk, Director of the
    Bureau of Land and Water within the Maine DEP (*See [Scott
    Whittier's Biography](../nrda/Scott%20Whittier%20Bio.pdf)*) -- Scott
    discussed the trustee role and challenges. Scott made the case for
    cooperative NRD as another but constructive tool; noting that if
    this case were constrained as an enforcement action, it is unlikely
    restoration would have ever taken place. Trustees in Maine are now
    working on a global MOA (Memorandum of Agreement), evaluating
    case-by-case settlements and looking for criteria at waste sites
    where NRD has a benefits.

Steve Davis closed the panel by summarizing lessons learned. He
emphasized the NRD process a great tool and that cooperative assessments
do work.

***Questions and Answers***

Q What is the nexus between groundwater injuries and land acquisition
and trails?

A (David Van Slyke) While the nexus is not direct, the focus was more on
where groundwater discharges. Groundwater in this case was not a potable
supply.

Q What do you guess is the transaction cost for entire process?

A (Cindy Jernigan) The transaction costs were a lot higher (almost
three-fold) than originally budgeted. This was primarily due to the fact
that this was the first of this type of settlement to be made in the
state. The total cost of the NRD settlement to Kimberly-Clark
(transaction costs plus the actual funds paid for the property and
improvements to the property) was equivalent to the lowest cost,
hot-spot remediation option, under the most favorable conditions.
However, any other remediation option identified in the Focused
Feasibility Study would have been substantially more expensive for K-C.
Even though transaction efforts and costs were greater than expected, we
were excited about the benefit to the community of the restoration and
the fact that we could see that it was actually going to happen.

A (John Williams) We didn't want to be guinea pig, but saw that it would
happen and recognize that the next time would be a smoother process.
Before this site, the Maine DEP had not sorted their relationship for
this type of site.

A (Scott Whittier) In Maine DEP, there is now a better understanding of
common goals. Future NRDs will now involve a framework and more
experienced folks; perhaps Maine DEPA will codify such a framework.

Q What was the cost for land acquisition and trails?

A (John Williams) \$100K for land acquisition and \$50k for other
restoration-related work.

Q What services were lost via the HEA (Habitat Equivalency Analysis)?

A (David Van Slyke) The services lost were indeed non-potable groudwater
that could serve other purposes (e.g., agriculture or other), and the
value to potable drinking water as all groundwater in the State of Maine
is considered to be of the highest value and of potable

Q What's the legacy value -- back of envelope?

A (Steve Davis) Maine DEP looked at the New Jersey groundwater model,
but it was clear this model could not apply to Maine; thus Maine used
the HEA.

**[Small Group Session 1: Identifying NRDA Challenges and Finding
Solutions - Creating a Site Work Plan]{.underline}**

Using a hypothetical scenario (*See [Handouts](../nrda/Handout.pdf) for
scenario description and map*), small groups designed a preliminary work
plan for to conduct a cooperative NRDA case, integrated with CERCLA
RI/FS activities. Groups were asked to try to reach agreement on:

-   Vision, framework, and/or conceptual model for the project

-   Set of data needed to proceed, including studies

-   Preliminary agreements

-   Process and decision points for the work plan

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-   Potential obstacles and solutions

Groups were also invited to consider the following issues when
developing their work plans:

-   Contaminants of concern

-   Pathways

-   Potential resources (habitats affected)

-   Eco-risk potential

-   Type and scale of injury in relation to baseline

-   Potential remedial and restoration opportunities

-   Scaling opportunities to eco-risk and injury assessments

-   Selecting remedial and restoration options that allow for public
    input

-   Opportunities for win-win solutions that benefit all parties

**[Day 2 -- June 1]{.underline}**

Iris Ioffreda of Organizational Learning Associates opened the second
day of the workshop by introducing the talk on Restoration Banking

**[Restoration Banking]{.underline}**

Ron Gouguet, Senior Policy Analyst with the National Oceanic &
Atmospheric Administration, and Ralph G. Stahl, Jr., Principal
Consultant at the DuPont Corporate Remediation Group, co-hosted the
discussion on restoration banking. (S*ee [Restoration Banking
Presentation](../nrda/Restoration%20Banking.pdf) and
[Ron's](../nrda/Ron%20Gouguet%20Bio.pdf) and [Ralph's
Biographies](../nrda/Ralph%20Stahl%20Bio.pdf))*

Ron opened the panel session by indicating that the term "Restoration
Banking" may not be the most appropriate name for the concept being
conveyed, offering the term "Restoration Up Front" as an interim
descriptor and challenging participants to come up with a better term.
Regardless, he noted that this concept is being applied in a number of
situations -- with pilots in TX, NJ, CA, and the Northwestern U.S.
region. Ron defined the concept behind this topic, provided possible
analogues, progress to date, various ways of approaching this concept,
steps that need to be taken, the infrastructure that may be needed, and
benefits and challenges. Ron underscored that good restoration projects
make good settlements, and that the Restoration Up Front model is a
useful opportunity to explore how to satisfy trustee as well as industry
concerns in addressing collective liabilities.

Ralph indicated that there is real interest in further refining the
"Restoration Up Front" concept by searching for additional pilots,
refining the draft concept paper developed, and encouraging future
dialogue on this concept. Ralph highlighted some of what he and others
have heard to date on this concept; namely that there is a need to
identify liability beforehand, there is a need to comply with NEPA so as
to address options the public can weigh in; the challenge of how to
apply excess credits if PRPs are not involved upfront; the need for this
to be cooperative and the effect if it is not ("What if it does not
work?"); and the lack of restoration projects or plans that are either
already identified or may already have had public review or otherwise
fleshed out in part, making "Restoration Up Front" likely to be a
one-shot deal. Ralph highlighted potential next steps, including a
future workshop on this topic.

Ralph and Ron wanted to take the opportunity to hear from others in the
audience to gauge reactions and interest.

***Questions and Answers***

*To Ron Gouguet:*

Q Regarding enhancement versus restoration and other restoration options
(conservation), will you weight each option differently?

A You need to look at the differential between the original condition
and final outcome; that is, you need to quantify the ultimate value of
the outcome regardless of the option. Regarding a cost/benefit ratio, do
you shoot for one or better? We are not looking for the typical
regulatory cost/benefit ratios, but informative ratios.

Q Is a company allowed to use land if it cannot be restored -- 3 parts?

A We already are doing something like that regarding off-site
restoration. I find it unacceptable where a company that ruined a piece
of land then may approach a bank to buy its way out. We should probably
not use land if it cannot be restored. Primarily, we are looking at
industrial, not mining sites, and looking at interim lost use for
company land. We are also looking at sites that are under state cleanup
actions. One possible improvement is to make the point clearly that
point is the Restoration Up Front concept is being considered for
interim lost use compensation not in lieu of primary
restoration/clean-up.

Q Some states have banking activities, e.g., ports, DOT, development. It
is easier to justify wetlands taking if a bank exists. How do you
protect NRDA banking if it is governed by states?

A You write it into the charter for credits to be used only for NRD
liability.

*To Ralph Stahl:*

Q Can you cash credits across sites/borders? What of tax gains that
companies get for implementing large restoration projects?

A No, to the first part of the question. It is difficult to sell credits
in one state for liability in another. Providing credits is likely to be
constrained to the watershed. Perhaps there will be exceptions, for
instance, for migratory waterfowl that are not limited to a geographical
context, Regarding the second point, you cannot double dip (i.e.,
receive a tax gain) or so is the thought.

Q With increased transparency for corporations, is there any
satisfaction by offsetting corporation financial liabilities doing
restoration projects?

A I haven't done any projects to know. The Sarbanes-Oxley Act is a
motivator. Do corporations have an incentive to smooth the financial
sheet? There is always an incentive if you redress liability with
current assets if there is no other alternative.

Q Where multiple state involvement exists, there is a challenge of
keeping restoration in the backyard. The incentive for companies
regarding large land holdings doesn't convince me as we are looking for
on-site restoration first as the highest priority. Isn't it better if
corporations identify land parcels that trustees select and not just
what corporations have?

A If it's not a priority, would there be any sway regarding additional
parcels -- for interim loss or anything else? We are not so interested
in the back 40. We need to better justify the need to use the existing
land parcels.

*To Both Panelists*

Q The greatest chance for success is to put this idea into a broader
context. Have you engaged the White House regarding the Cooperative
Conservation Initiative regarding applying this concept to a broader
context?

A We need to start in the NRDA context and go from there.

A (Workshop Participant) There have been talks on applying experiences
in the NRDA context and other venues in the framework of the Cooperative
Conservation Initiative. The challenge in NRDA is developing a critical
mass to make this concept work beyond the regional or watershed context.
Virginia Tippie of Coastal America is a good point of contact in
marrying analogues of this concept within the Cooperative Conservation
framework.

***Comments***

C1 There was concern that to the extent one identifies and quantifies
value, you may increase the interest to fight over each DSAY; that this
shift in DSAY may affects resource management priorities.

C2 Some states have made headways in identifying and developing regional
restoration projects and plans. Look to states, like Delaware, as
potential resources.

C3 Regarding the Hylebos effort, when NOAA came up with value at
\$52k/DSAY, PRPs came out of the woodwork and so did developers. We saw
that once an economic value is defined, it becomes the Wild West which
may dampen acquisition interest for restoration purposes. It seems there
is a need to carefully address land speculation as you assess injuries
and value so as not to lose control of process.

C4 One size solutions don't fit all. In urban areas, if creative
thinking like this doesn't occur, restoration may not happen.

**[Small Group Session 2: Drawing Conclusions from the Scenario Exercise
-- What Did We Learn?]{.underline}**

Small groups met a second time to debrief their work on the hypothetical
scenario by considering what worked well and what factors made work on
the scenario difficult or led to impasse. Groups were encouraged to
consider:

-   Factors that facilitated reaching agreement

-   Issues on which you could not agree and factors that made agreement
    difficult.

-   Lessons from the scenario exercise that might be useful in future
    cooperative NRDA work.

Each group prepared a report and then group members rotated to different
tables to share their conclusions. (*See [Scenario
Reports](../nrda/Scenario%20Reports.pdf)*)

**[Small Group Session 3: Enhancing Coordination in the
Region]{.underline}**

Small groups discussed ways in which coordination in the region could be
improved, including how to expand the opportunities offered in this
workshop, share information, and sponsor future meetings/opportunities
for dialogue. Each group developed their best ideas -- those with the
greatest potential to expand on or continue the work accomplished at the
workshop, and top ideas were submitted to the facilitators.

-   Robin Burr mentioned that FACA minutes are available on the DOI web
    site at: <http://restoration.doi.gov/faca.html>

-   Bill Hyatt emphasized the importance of this exercise because many
    workshops end and participants promptly forget what happened --
    there isn't follow-through. For example, everyone agrees that NRDA
    and RIFS should be done concurrently but no one has the means to
    make it happen. It is critical that we develop a better way to
    coordinate and make things happen,and he expressed his hope that
    these small groups might continue meeting in some fashion after the
    workshop.

The Small Group Planning Reports follow:

**Group 1 -- Ongoing NRDA Meetings**

1\. Region 1 JAT

2\. Ad hoc NE NRD Committee -- rotating annual meetings

3\. Coordinate with Army Corps of Engineers/WRDA

4\. Improve federal state coordination

5\. Better integrate remediation and restoration

6\. Regional restoration plans

7\. Focus groups to review cases

8\. Educational Workshops

Possible topics: Scientific issues (e.g., "baseline")

NRDA 101 for states (WRT: CERCLA/OPA)

Cross-training (all involved/potentially involved in case)

DQO process

Cross-training on remediation/restoration

**Group 2 -- Developing Tools to Enhance NRDA**

1\. Guide for trustees (CERCLA)

2\. Identify trustee contacts state by state (done by ASTWMO). Need to
get on websites and add he state-specific program info contained at the
back of the workshop materials.

Responsibility: Since ASTWMO has no more funds, Federal trustees would
need to coordinate

3\. Develop generic agreements between states and feds (actually just
post existing agreements as examples)

4\. Protocol and document of processes/data needs

5\. Threshold notification of all trustees at certain points in the
process

6\. Develop cost Dsay

7\. Develop white papers on variety of topics (HEA, NRDA 101, SOL,
baseline, etc.) Post on CAP, ASTWMO, DPI websites, etc.

Responsibility: Jointly developed by industry and trustees

**Group 3 -- Developing Mechanisms to Engage Industry and Tribes**

1\. Get word out via business association, etc. (law firms) about
meetings, cooperative assessment

2\. Industry input into state legislation

3\. Educate industry on benefits of cooperative assessments

4\. Outreach to tribes (NRDA 101 at tribal conferences)

5\. Transparency in approach, modeling efforts

**Group 4 --** Developing Communications Tool and Improving Information
Sharing

1\. Listserv

2\. Blog

3\. Website -- augment CAP website with calendar, including meetings,
training courses, etc.

-   Include MOU models (federal, state, interstate)

-   Include lessons learned

-   Case studies and success stories

-   State links

-   Settlement examples: cooperative assessments (RIFS/NRDA WPs);
    expedited restoration

4\. Newsletter

5\. Database of cooperative assessment cases

-   Transaction costs

-   HEA/valuation/scaling case studies

-   Society of Ecological Restoration info

6\. Broadcast emails from EPA

7\. Website

-   Find a host server for website

-   Find funding to build a website (these 2 may interact)

-   Populate website with content from

States

Feds

Privates

Academics

Foreign

-   Issue: Which agency gets credit for what?

[^1]: ASTSWMO is an organization supporting the environmental agencies
    of the states and trust territories. ASTSWMO focuses on the needs of
    state hazardous waste programs; non-hazardous municipal solid waste
    and industrial waste programs; recycling, waste minimization, and
    reduction programs; Superfund and State cleanup programs; waste
    management and cleanup activities at federal facilities; and
    underground storage tank and leaking underground storage tank
    programs. Dale Young is Chair of the ASTSWMO NRD Focus Group. For
    more information on ASTSWMO, see: <http://www.astswmo.org/>