CAP Compendium of Additional Ideas and Example Documents
October 2003
Table of Contents
INTRODUCTION
As part of the Cooperative Assessment Project (CAP), a stakeholder working group
developed a framework that outlines the underlying concept and scope for
cooperative natural resource damage assessments (NRDA) [see "Cooperative
Assessment Project Framework," March 2002). However, parties contemplating a
cooperative damage assessment may also benefit from additional ideas and
example documents that have been successfully used in prior cooperative
assessments. The CAP stakeholder work group has set out to develop such a
compendium to meet this need.
The ideas and documents in this compendium are not intended to be exhaustive;
instead, they serve as a starting point for conducting cooperative damage
assessments. Parties involved in a cooperative damage assessment effort, or any
cooperative effort for that matter, should take advantage from the ideas and
documents provided to ensure a successful outcome to an assessment.
This compendium is not be construed in any way as a cookbook. In fact, new
ideas, and documents are encouraged where they become appropriate. Where new
ideas and documents do arise, they should be incorporated in this compendium or
elsewhere for the benefit of other practitioners.
This compendium is organized by topic area. Each topic area contains brief ideas
followed by example documents where such documents might be of value.
[Stakeholder work group—NOAA formed a stakeholder work group in January
2002 to facilitate cooperative natural resource damage assessments. Refer to
the CAP framework on the main CAP Related Documents page
for more information on the stakeholder work group.]
PRELIMINARY
SCOPING
When deciding whether to engage in cooperative
assessment project, the respective parties should consider preliminary scoping
activities. Preliminary scoping may be conducted individually or jointly,
depending on the parties involved and project circumstances.
During preliminary scoping activities, Trustees and PRPs may wish to
contemplate:
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Assessing potential injury and restoration options based on readily available
information, e.g., based on literature, field reconnaissance, related or
on-going investigations, professional judgment, etc.; and
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Determining the potential nature and scope for public involvement, perhaps
through piggy-back efforts, e.g., through EPA’s response public involvement
process, public meetings sponsored by PRP facilities, citizen advisory
committees, etc.
The opportunity to scope out relevant information early in a cooperative
assessment project should help not only determine whether to engage in a
cooperative assessment project, but will also help to direct project activities
and achieve acceptable outcomes. Preliminary scoping may help set the stage for
the conduct and success of cooperative assessment projects.
Other factors that might be considered at this point include:
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Alternative methods for resolving liability, including the positive and
negative aspects of each;
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The necessary investment in human resources and expected costs of conducting a
successful cooperative assessment;
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Optimal timing for resolving natural resource liability;
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The need to coordinate with other PRPs and stakeholders;
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Whether the PRPs are willing to toll the statute of limitations to enter a
cooperative assessment; and
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The individuals who may be potentially involved in a cooperative assessment
project.
[Public involvement—Certain public involvement for natural resource damage
assessments are required under CERCLA and OPA law.]
PROPOSING
A COOPERATIVE ASSESSMENT PROJECT
Cooperative assessment projects may be proposed by any affected Trustee,
PRP, or other stakeholder group. These proposals may be communicated orally or
in writing to a Trustee, who should in turn inform affected co-trustees. Upon
receipt of a proposal, the respective parties (both Trustees and PRPs) should
make all reasonable efforts to inform other affected stakeholders that a
proposal has been received and is being considered.
[Projects—In this context, the term "project" refers to the entire damage
assessment and restoration process for a cooperative assessment site, not
necessarily to a unique component of the process.]
EARLY
AGREEMENTS—SELECTING COOPERATIVE ASSESSMENT PROJECTS
Depending on the parties involved and the circumstances of the site, Trustees
and PRPs willing to enter into a cooperative assessment project may wish to
sign an early agreement. At some point early in the process, it is strongly
recommended that basic agreements and terms be somehow documented in writing to
minimize future misunderstandings. This might be accomplished by a simple
letter of agreement outlining the basic goals of the process or a more
comprehensive project initiation agreement. There may be one or more
agreements. Agreements may be amended or modified as appropriate.
At a minimum, two issues of great importance that should be addressed consistent
with the CAP framework are: tolling of the statute of limitations and funding
of the project (including standards for documenting costs). Other issues of a
general or technical nature (identified below) should also be addressed and can
be addressed in various ways, i.e., through formal or informal agreements.
TOLLING AND STATUTE OF LIMITATIONS
According to the CAP framework, Trustees and PRPs interested in participating in
a cooperative assessment project should address statute of limitations issues
before the project can move forward. Tolling can be accomplished either through
a separate tolling agreement, or by incorporating adequate tolling language as
part of an overall agreement (see draft model CAP Project Initiation Agreement
(PIA)).
The parties will likely want to consider the temporal nature of any tolling
agreement. For example, the parties may wish to state that the tolling
agreement is in effect only for the time that the CAP project is ongoing.
FUNDING AND COST DOCUMENTATION
Federal law requires PRPs to pay the reasonable costs of natural resource damage
assessments. Funding arrangements should be decided prior to the parties
entering into a cooperative assessment. In most cases, Trustees will seek
timely compensation for all costs incurred. At the same time, PRPs should
receive adequate documentation of project-related costs. Once agreement on
funding is reached, the PRP funding commitment will apply until cooperative
assessment project activities are complete or otherwise terminated. PRP funding
for Trustee costs ensures that Trustees will provide adequate resources to a
project.
Trustee costs may be compensated in advance or reimbursed as project
circumstances warrant. These costs should be managed, documented, and
reconciled as mutually agreed by the respective parties to minimize delays or
disputes. Funding agreements or alternative language should specify the
mutually agreeable detail.
COORDINATION
The CAP framework provides a series of broad coordination responsibilities for
Trustees and PRPs alike. Early, open, and clear communication between the
Trustees and PRPs will ultimately enhance the chances of a successful project.
To enhance coordination, parties engaged in a cooperative assessment project may
want to consider the following:
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Trustees and PRPs should establish lead coordinators (e.g., Lead Administrative
Trustee, Lead Coordinating PRP) and/or a steering team that would be the focal
point for project activities and communication.
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Trustees and PRPs should provide the appropriate type and level of resources
(e.g., staffing, etc.) to promptly evaluate and decide on all substantive
actions. Trustees and PRPs should clearly define and communicate project
staffing, staff roles and responsibilities (including decisionmaking and
sign-off authority), and anticipated project actions. Trustees and PRPs should
attempt to maintain consistency in project staffing. Alternatively, changes in
project staffing or staff roles and responsibilities should be promptly
communicated to the respective parties, and a transition period should be
arranged during which the old and the new staff overlap. Trustees and PRPs
should ensure that loss of relevant information resulting from staff or other
changes during the life of a project be minimized to the extent possible.
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Trustees should provide timely review and response to PRP proposed activities
and plans, mutually determined by the parties, e.g., within 30 calendar days.
When this timeframe is insufficient, the Trustees should provide the PRPs with
a reasonable, estimated timeframe within which they will provide a
determination.
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Similarly, PRPs should provide timely review and response to Trustee concerns,
mutually determined by the parties, e.g., within 30 calendar days. When this
timeframe is insufficient, PRPs should provide the Trustees with a reasonable,
estimated timeframe within which they can provide their review and response.
-
Where PRPs propose to initiate a project, PRPs should develop and adhere to a
schedule for project activities and keep to it within reasonable and practical
constraints. When PRP-proposed project schedules or activities change, the PRPs
should promptly inform the Trustees of such changes.
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Where response actions are planned or on-going, the parties should recognize
that Trustee involvement early on in the response process is a public
obligation. Moreover, coordination between the response agencies and Trustees
is required under CERCLA. In the absence of current or planned response
actions, it is possible for the parties to anticipate appropriate cleanup
actions, i.e., the parties should work to encourage cooperation with the
response agencies to optimize resource use and maximize information gain.
INFORMATION
SHARING AND USE
The CAP framework requires that all parties involved in a project must be able
to collect or share mutually agreed information relevant to the project.
Sharing information outside the scope of a project but which is potentially
relevant to the project is considered discretionary. Information that is
privileged or otherwise protected would likely not be released to the public,
e.g., confidential business information, personal information, strategy plans,
legal opinions, attorney work products and attorney-client communications,
third-party litigation information, etc. However, in some circumstances,
parties ought to be aware of "sunshine" provisions that may foreclose certain
protections.
PROJECT GUIDELINES
The CAP framework underscores that Trustees are ultimately responsible to
represent the public’s stewardship interest in natural resources. This means
that Trustees must lead in establishing, monitoring, and approving procedural
and technical guidelines for cooperative assessment projects.
Some useful considerations in support of project-related guidelines include:
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Guidelines should strive to be consistent with established NRDA provisions
under CERCLA and OPA.
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Guidelines should provide the necessary flexibility to account for
uncertainties that may occur during the assessment and restoration efforts.
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When considering information in support of a determination, the parties should
assess the quality and usefulness of that information to the project.
-
Where uncertainty in such information arises, it can often be addressed by
using reasonable, protective assumptions rather than conducting additional
studies. These assumptions, according to the CAP framework, need to be
memorialized in the public record. Where the consequences (in terms of
restoration—its rationale and cost) of using assumptions may be significant,
the parties may decide to conduct additional studies to reduce uncertainty
rather than apply protective assumptions to address the uncertainty. It the
parties cannot agree to proposed assumptions, they may exercise their ability
to initiate independent work, even while engaged in a cooperative assessment.
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Before considering additional studies, the parties should mutually: identify
the information necessary, useful, and appropriate for the project; identify
how decisions about interpreting the data will be made (perhaps through data
quality objectives); and determine how to accomplish the needed additional work
to fill in data gaps in a cost-effective manner.
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If additional studies are needed to support project-related work, the parties
should agree on the nature and scope of the data to be collected or analyzed.
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While the parties should jointly share in the conduct of agreed-upon work,
there may be those rare circumstances where one party needs to conduct work
independently of the other party. At a minimum, the parties should agree on the
desire and/or conduct of independent work prior to its implementation. Sharing
of information related to independent work is encouraged, but such sharing can
only be considered discretionary.
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Trustees and PRPs should have the same opportunity to review and/or participate
in work conducted by either party.
-
These determinations can be ensured through, among other means, the appropriate
use of data quality objectives, quality assurance and control measures, and
peer review.
PUBLIC
INVOLVEMENT
In general, public involvement should be tailored to the circumstances of the
project. The parties should use their discretion relative to the appropriate
level and timing of public involvement. However, at a minimum, the parties
should inform the public that a cooperative assessment project is being
initiated, that a public record is available (see next section), and that there
is a restoration plan that seeks public input. If deemed appropriate, outreach
efforts could consider assessing public interest early (see section on
Preliminary Scoping) to identify public interest and potential project
concerns.
Public involvement could include public notices, public service announcements,
mailing lists, sign postings, fact sheets or other informational materials, and
informal and formal meetings with public groups. When considering public
notices, such notices should be run, at a minimum, in a well-read publication
whose circulation reflects the scope of the project. Where appropriate, parties
might consider engaging in existing public participation activities, e.g.,
on-going response agency-sponsored meetings, meetings sponsored by PRP
facilities, town meetings, county council/parish meetings, etc.
The affected parties should contemplate how best to represent themselves in
public engagement activities. This issue is relevant because of the public’s
perceived concerns about the Trustee’s degree of partnership with PRPs.
To minimize problems respecting roles and responsibilities relative to the
public involvement process, the Trustees and PRPs may wish to consider
establishing ground rules for engaging the public, agree on text for public
announcements, jointly issue announcements, respond to public comments
appropriately, and identify the lead for various aspects of the public
involvement process.
PUBLIC
RECORD
The NRDA regulations provide that all information relied upon when making
decisions for a project must be documented and made available for public input
in a timely manner in some form of public record. It is the Trustees who are
responsible for establishing and maintaining the public record, consistent with
their agency document retention policies. Cooperative assessment projects
should be consistent with this requirement.
Documents and information appropriate to the public record may include:
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Project documents, e.g., project proposals, notice announcing project
selection, agreements, etc.;
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Assessment/restoration planning documents, e.g., technical memoranda, injury
assessment and restoration planning documents, draft restoration plan, notice
announcing draft restoration plan, final restoration plan; public comments;
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Restoration implementation and monitoring documents, e.g., restoration
implementation, monitoring reports, mid-course correction plans;
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Trustee documents, e.g., memos/letters reflecting trustee determinations, etc.;
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Settlements; and
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Other documents, e.g., meeting agendas/summaries, progress reports, additional
notices.
The public must be provided reasonable access to the public record. The parties
may wish to consider a local repository at or near the project, available to
the public at reasonable times. Typically, the official public record is
located at the headquarters of a Trustee agency. If a local repository is
contemplated, the Trustees may wish to adequately monitor the repository to
ensure public access to project-related information.
Public access through the internet may also be provided. However, parties should
be aware that internet access is still not readily available to many members of
the public, and should probably not establish such electronic access to the
exclusion of a local repository.
INJURY
ASSESSMENT AND RESTORATION PLANNING WORK
Effective cooperation can lead to achieving timely and appropriate restoration.
Cooperative assessments may be expedited in a number of ways including, for
example, using stipulations based on available information in lieu of
conducting additional studies, planning focused assessments, using
habitat-level assessments, concentrating on resources that are indicators for
effects on other resources or on a range of other integrated resources (e.g.,
key or indicator resources), relying on other resources of significance (e.g.,
protected or special resources), focusing on resources that are key to scaling
restoration actions, and/or focusing on restoration alternatives that benefit
multiple injured resources/services. When protective assumptions are used in
lieu of conducting additional studies, the parties may wish to stipulate on the
amount of restoration needed to address an injury rather than on the amount of
the injury itself.
No one approach or tool is appropriate in all circumstances. Whatever approach
or tool is used, the parties should look to those that can address issues while
building confidence among the parties as the process continues. Issues in which
disagreements stop progress can be put off while working on those issues where
progress is possible. These seemingly intractable issues may not be so
problematic later as other issues are resolved and progress is made toward
identifying and scaling restoration options. Progress on various issues (e.g.,
findings, determinations, and/or stipulations) can be reflected through general
or technical memoranda.
As appropriate, workplans for individual injury assessment and restoration
efforts may be developed. Among other considerations, these workplans should
address goals and objectives for the proposed study, performance criteria and
measures, scope of the study, methods to be used, data quality objectives,
quality assurance and control measures, and scheduling and logistics
information for planned activities.
As required by law, the information from injury assessment and restoration
planning efforts should be reflected in a restoration plan subject to public
review. [Consistent with CERCLA sec. 111(i) [or 42 U.S.C. 9611(i)] and OPA sec.
1006(c)(5) [or 33 U.S.C. 2706(c)(5)]]. To adequately communicate the context of
the project, the parties should consider defining the goals and objectives of
assessment and restoration activities, describing the nature and extent of
contamination, describing the nature and extent of injuries (i.e., those
identified and considered as well as those rejected, and the basis for
rejecting injuries), summarize the injury assessment procedures and methods,
identifying restoration criteria and comparing the restoration alternatives
considered (i.e., those identified and considered as well as those rejected,
and the basis for rejecting restoration alternatives), and identifying and
scaling the preferred restoration alternative(s).
The draft restoration plan and any subsequent significant modifications should
be subject to public review and comment through some form of public notice. The
final restoration plan, which will serve as the basis for a settlement, ought
to consider public input.
While much of the information necessary for the restoration plan can be
developed by the PRPs, it is the Trustees' responsibility to ultimately approve
the restoration plans. It is also the Trustees’ responsibility to ensure
compliance with applicable Federal and state laws, e.g., with ESA, CZMA, EFH
(Essential Fish Habitat) archaeological/cultural laws, NEPA, etc.
RESTORATION
IMPLEMENTATION AND MONITORING WORK
As with injury assessment and restoration planning, the parties may decide to
develop workplans for implementing selected restoration alternative(s). These
workplans should address the goals and objectives for the proposed project,
performance criteria and measures, the scope of restoration implementation, a
monitoring protocol to ensure that the conditions of the settlement are met,
the project engineering design and scheduling, and logistics information for
planned activities.
Monitoring efforts rely on the specific circumstances of the project. PRPs
should report the results of their monitoring activities based on the planning
elements in the respective applicable workplan. The frequency of monitoring
reports depends on the circumstances of the project and should be jointly
agreed upon by the Trustees and PRPs.
DISPUTE RESOLUTION AND COOPERATIVE PLANNING
Parties that are involved in a cooperative assessment are likely to encounter
disagreements. When this occurs it is important for the parties in disagreement
to resolve issues in good faith, i.e., acknowledge differences of opinion,
agree to disagree, act promptly, take responsibility, etc. Failure to quickly
address disputes through a fair process may threaten the long-term success of a
cooperative assessment. Thus, Trustees and PRPs should take advantage of the
broad array of dispute resolution options to resolve conflicts,
particularly alternative dispute resolution (ADR) techniques.
Parties should clearly communicate disputes; at a minimum the nature, basis, and
status of the dispute. The process for addressing disputes and the
responsibility for costs associated with the dispute resolution process (e.g.,
cost of mediators, facilitators, etc.) should be pre-arranged in a written
agreement.
Parties involved in a project should also be aware that the techniques and
methods used in dispute resolution (such as in ADR) can also be used in the
absence of a dispute for the purposes of planning project activities, e.g.,
preliminary scoping or public involvement.
[Dispute resolution is also referred to as conflict resolution in various
contexts.]
SETTLEMENT
AGREEMENTS—CONCLUDING A COOPERATIVE ASSESSMENT PROJECT
For cooperative damage assessments to conclude successfully, any settlement
should, like the process preceding it, be expedited. Thus, the language of any
settlement (including covenants not to sue) respecting its nature, scope, and
timing should be streamlined without compromising legal standards—including
relevant statutory liabilities.
The settlement provided to PRPs will be binding on all parties, pending
successful completion of planned restoration actions in cases where the PRP has
responsibility for conducting some or all of the restoration projects. Thus, to
consummate a settlement that involves in-kind restoration work by the PRP, the
PRPs should expect to: meet project-specific performance criteria and measures;
be prepared to address monitoring and corrective action requirements; maintain
engineering, institutional, environmental, or other controls as specified; and
settle costs in a timely fashion.
TERMINATING
A COOPERATIVE ASSESSMENT PROJECT
When a Trustee or PRP decides to terminate involvement in cooperative assessment
proejct, it means that that party intends to sever participation in the
cooperative assessment process. Under the CAP framework, either party has the
right to terminate the relationship for any reason. However, the party intent
on terminating its relationship in a cooperative assessment project will
generally be expected to provide notice consistent with the agreed-upon terms
of the relationship, e.g., written notice 30 calendar days before the effective
date of termination.
If there is a serious disagreement among the parties that prevents further
progress, assessment activities may be temporarily suspended. During this time,
the parties should make use of alternative dispute resolution mechanisms to
address any disagreements (see above section on Dispute Resolution).
Finally, all agreements made between the Trustees and PRPs must be honored up
until the date of termination. Either party may use any information (except
that subject to common legal protections or confidentiality) generated in the
cooperative assessment process up to the point of termination in future
assessment and restoration efforts undertaken after termination.
WEB SITES ON COOPERATIVE NRDAs
Related web sites are available.
RELEVANT DOCUMENTS ON COOPERATIVE NRDAs
Preliminary Scoping/Considering NRDA Efforts
Invitation Letters
Decision to Initiate a Cooperative NRDA
Early Agreements
Draft CAP Agreement
Generic Cooperative NRDA Agreements
Case-Specific Cooperative NRDA Agreements
Tolling Agreements
Funding Agreements/Attachments
Technical Attachments
Injury Assessment and Restoration
Example Technical Assessments
Example Meeting Summaries
Example Restoration Plans
Example Compliance Documents
Public Involvement
Public Record
Dispute Resolution and Cooperative Planning
Settlement Agreements
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Westchester CD—to be provided once the CD is final
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Brio CD—to be provided once the CD is final
