If coordination of remediation and restoration under CERCLA is such a good idea, why is it not practiced more widely?

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.

Keywords: CERCLA; Natural resource damages; Natural resource injuries; Remediation; Restoration; Superfund.