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Response to Public Comments on the Draft Scope for the Hudson River Natural Resource Damages Assessment Plan June 1999

The Hudson River Natural Resource Trustee Council (Trustee Council) received numerous comments on the Draft Scope for the Hudson River Natural Resource Damages Plan. This document is designed to address issues and questions raised in the public comments and provide a general overview of the range of topics identified relative to the Hudson River natural resource damage assessment (NRDA).

Public Participation

The public comments contained numerous questions about the public's role in the Hudson River NRDA. The Trustee Council is committed to providing as many opportunities as possible for the public to participate throughout the duration of the Hudson River NRDA. This correspondence reflects our desire to provide regular information to the public. Federal regulations require public review and comment at several key stages during the NRDA process. The Trustee Council has already gone beyond this minimum and intends to continue to offer the public ample opportunities to examine the work of the Hudson River Trustee Council and be involved in development of the damage claim. We anticipate that restoration planning will elicit the most public interest and active participation.

Selection of the Hudson River and other NRDA sites

Commentors asked how the Hudson River was selected for an NRDA and how this site compared to other NRD claims in New York and the nation. The Hudson River was selected for an NRDA after a survey of available information indicated that polychlorinated biphenyls (PCBs) had been released to approximately 200 miles of the Hudson River from identified sources between Hudson Falls and the Thompson Island Dam. The fact that the releases were in quantities and concentrations sufficient to potentially cause injury to natural resources led the Trustee Council to conclude that the pursuit of an NRDA was warranted.

The Hudson River NRDA is the largest geographically for New York and one of the largest in the United States. Numerous NRDA's are being pursued in New York: some of the largest assessments address injured natural resources in the St. Lawrence River, Onondaga Lake, and the Hudson River. The National Oceanic and Atmospheric Administration (NOAA) and the Department of the Interior, including the U.S. Fish and Wildlife Service (USFWS), are active in NRDAs across the country where hazardous material releases have injured the public's natural resources.

The role of the Trustees and their relationship to the potentially responsible parties (PRPs)

Several people asked about the role of the natural resource trustees. Since no single individual "owns" the environment, various federal, state and tribal agencies are entrusted with its protection and management. As "trustees" for the environment, that is of the land, water, air, and biological components of the environment, these agencies are responsible for acting on behalf of the public. Under federal law, federal, state and tribal trustees are directed to protect and restore natural resource injured by release of hazardous materials.

The Trustee Council for the Hudson River NRDA has responsibility for the day-to-day management of the damage assessment and includes representatives of appointed trustees with assistance from the New York State Department of Law and the United States Department of Justice. In New York, the Commissioner of the Department of Environmental Conservation (DEC) is the official natural resource trustee. For the Hudson River, responsibility is shared between two federal agencies: the U. S. Fish and Wildlife Service (USFWS) in the Department of Interior and the National Oceanic and Atmospheric Administration (NOAA) in the Department of Commerce; the Secretaries of Interior and Commerce are the respective trustees.

Trustees are assigned responsibility for specific resources, although the nature of the environment and legal authorities leads to a minor overlap of these responsibilities. For instance, USFWS is the primary trustee for migratory birds, certain migratory fish and federally endangered species; NOAA is the primary trustee for coastal and marine resources. DEC is the trustee for all natural resources: soil and sediment (and other geologic resources), air, water and biota (living things). Trustees are required to coordinate during the NRDA process to ensure that all injured natural resources are protected and restored, and to guarantee against duplicative efforts.

Note that none of these agencies is a trustee for human health. Several commentors suggested the inclusion of human health effects in the assessment or that we treat humans as a natural resource. We do not have that authority. That responsibility resides with other state and federal agencies, such as the Department of Health and the Environmental Protection Agency. Similarly, trustees are prohibited from pursuing claims for private damages.

Several commentors asked about the relationship between the potentially responsible parties (PRPs) and the Trustees. There were suggestions to strictly limit General's Electric's role in the assessment process and other questions about PRPs voluntarily performing the assessment. Federal NRDA regulations require trustees to provide PRPs with opportunities to be involved in the assessment process. The Trustees have extended an offer to participate to General Electric. At this point, it is still too early to say what will be the nature of the relationship between the PRPs and the Trustees Council during the NRDA. Nevertheless, the Trustees are committed to a fair, open and cooperative process that fully compensates the public for injury to their natural resources.

The NRDA and the EPA processes

Many commentors asked about the relationship between EPA and NRDA activities for the Hudson River. Comments expressed confusion over the difference between Superfund and NRDA and about whether the Trustees were coordinating with EPA. The Trustee Council and the EPA are both operating under distinct but complementary authorities in the Comprehensive Environmental Response, Compensation and Liability Act (Superfund). In general, EPA is responsible for cleaning up the contamination and the natural resource trustees are responsible for protecting and restoring natural resources injured by the contamination.

Since 1990, EPA has been performing a Reassessment of their 1984 interim decision to take no action relative to the contaminated sediments in the river. The purpose of EPA's Reassessment is to determine the appropriate course of remedial action for addressing the PCB-contaminated sediments and their impact on human health and the environment. Options range from "no-action" to a complete clean-up. EPA is scheduled to determine a course of action for the site in June 2001, when it releases its Record of Decision (ROD).

The main difference between EPA's activities and the NRDA activities is that EPA addresses remediation of the Hudson River PCBs Superfund site and the Trustees focus on restoration of the river's natural resources. Remediation describes cleanup activities at hazardous waste sites that are designed to reduce or eliminate significant risks from the contamination to human health and welfare or to the environment. These activities reduce environmental risks but do not restore any of the natural resource losses. Trustees are responsible for restoring, replacing or acquiring the equivalent of natural resources that are lost or harmed by contamination, including actions to compensate the public for injuries that may persist after remedial action has been undertaken.

The Trustees are coordinating closely with EPA. Scientific information relevant to both processes is being developed and exchanged. The Trustees are currently planning for the NRDA but will not complete the process before EPA issues its ROD.

NRDA planning process

Numerous questions were raised about the NRDA planning process, especially the lack of specifics in the Draft. The NRDA process is described in elaborate detail in federal regulations under CERCLA and under the Oil Pollution Act of 1990. For the Hudson River NRDA, the Trustees will be relying primarily on the Department of Interior (DOI) regulations (43 CFR Part 11 - these regulations suggest, but do not require, that trustees be guided by them when performing an assessment.) In general, the NRDA process involves two principal tasks: identifying and measuring all significant natural resource injuries which resulted from the release of a hazardous substance and planning for the restoration of the injured natural resources . For the first task, the Trustees will use a range of information, from existing reports and ongoing studies to original scientific or economic studies. Once the Trustee Council has a thorough understanding of the injuries, it must proceed with an assessment of the best ways to restore the natural resources or the services provided by natural resources. Restoration may include rehabilitation, replacement, or acquisition of the equivalent resources or services.

What resources, services and contaminants will be included in the assessment?

Numerous questions and suggestions were made about resource categories, services and pathways that should or should not be considered in the damage assessment. These comments provide information on the injuries that are most important to the public. The Trustee Council is in the process of evaluating injury categories. For each resource and service, we are determining the likelihood that: 1) they were injured by the contaminant; 2) their injuries can be measured accurately; and 3) remedial actions will restore them to baseline.

A large number of comments questioned the contaminants that would be included in the assessment. Some felt that the assessment should focus solely on injuries resulting from the release of PCBs, while others felt the NRDA should examine injuries resulting from other contaminants found in and along the river. While the Preassessment Screen identified PCBs as a major source of injury to the river and its environment, the Trustees recognize that there are other sources of contamination that may need to be addressed during the assessment. As the assessment planning process continues, the Trustees will evaluate the significance of these additional contaminant sources in the context of the injuries associated with PCBs.

Defining and demonstrating injury

Numerous comments related to the way we define and measure injuries. The DOI regulations provide guidance on this topic: they describe the requirements for assessing injuries to natural resources that result from the release of a hazardous substance. The process involves determining a pathway from the source of the hazardous substance(s) to the injured resources, and then determining whether services normally provided by the resource have been reduced as a result of the release. The DOI rule defines injury in terms of direct biological impacts as well as exceedences of federal and state drinking water standards, surface water quality standards and criteria, and relevant Food & Drug Administration action and tolerance levels. A tolerance level exceedence occurs when concentration of a contaminant in an organism(s) is sufficient to exceed levels for which a State health agency has issued limits or bans on their consumption.

Peer review

Several comments pertained to the issue of peer review. Peer review is a process that involves the objective review of science by scientists outside of the involved agencies. There were questions about when peer review could or would be incorporated in the NRDA and what sorts of things would be subject to review. While there was general support for incorporating peer review into the assessment, there was a concern that the Trustees not let the peer review process cause undue delay.

Trustees support the concept of peer review as a means to ensure that the science used in the assessment is objective, scientifically valid, appropriate and of the highest technical quality. By involving peer reviewers in the early stages, the Trustee Council can solicit feedback prior to implementation and thereby allow for meaningful and timely modification.