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Kenneth Finkelstein NQ6A Coastal Resource

Coordinator U.S. EPA Waste M&n&gement Dlv. J.F. Ken~ Federal Building Boston, MA 02203 8 March 1988

U.S. EPA Waste Menagement Division J.F. Kennedy Federal Office Building Boston, MA 02203

Dear

In NovemDer, 1906, my predeCeSSOr srwon Ctlrlstopherson, wrote e memo outlining the prcx:esses for RPM's to I. notify the NOO trustee lind 2. obtain eCovenant Not to Sue (release from lteblllty) for natural resources under the jurisdiction of NOM. This letter serves as a source of Information for new Waste Management Division steff and as aclarlficetion for others on how this procedure operates.

TRUSTEE RESPONSIBILITY

Under Sections I07( f) and 111 (h)( 1) of the Comprehensive Environmental Response Compensation and ll8bflity Act (CERCLA), end Section 1(d)( 4) of Executive Order 12316, ~ mav pursue resource dllmege assessments and file d!lmege claims In cases where there ts actual dllmege or a thre8t of dllmege to trustee resources or their habitat.

NQ6A Is designated as e trustee for neturel resources In SUbpart Gof the Nation&IContingency Plen. HMA has trusteeship over ewide range of marine resources subject to the menegement or protection of a Federal agency. These cen Include fishery resources (finfish, shellfish, end crust11C8&), marine memmels, end endllngered species In coastal and off-shore waters and the habitats which support them. Coastal waters are defined as those portions of the weterweyswhich are tld!llly Influenced.

NQ6A may bee co-trustee with the U.S. Depertment of the Interior or en affected state. AnD'omous ftsh In both coastal environments and supporting habitats (I.e., freshwater streems supporting htstorlcel or existing spawning ectlvtty) provide aIPX' exemple. Meps thet show the llr.atfon of the major &Mdromous fish streems/rtvers of the New England states are avelleble et my desk.

NOTIFICATION REQUIREMENTS

Section 104(d) of the SUperfund Amendments and Reauthorization Act of 1986 (SARA) requires EPA to notify trustees when neturel resources mav be affected by asite and coordinate those tnvestlgetlons with the trustees. I would like to point out thet this applies to ell sites with the potenttal for Impacting NOM trustee resources, whether you plan to request aCovenant Not to Sue or not. In acklitlon, In nE9)tletlng settlements with potentially responsible parties, Section 122(j) requires that Federal natural resource trustees agree In writing before e "covenant not to sue" for demeges to natural resources can be Included In the settlement and encouraoes their participation tn the llE9)tietion prooess. I have Included esummery below describing when our trustee Interests would come Into play end the steps that ere involved in requesting a release.

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PROCEDURE FOR REQUESTING ACOVE~T NOT TO SUE FROM LIABILITY FOR ~TURAl RESOURCES

If apathwll'{ for oontamlnant migration exists between asite and NQ6A trustee resources, the potential for impact-is essumed to exist until dDte to the oontrery Is Cl'lallllble. Early <XIOI'dlnetion of site Investigations will enable NQ6A to determine If an Impact has occurred and to worK together on a ~rse of ectton that best mttlgstes dDmage to human heDith and the environment.

Arequest for aCovenant Not To Sue for netural resource dDmages can be Initiated bV a letter from the Regional Project Manager of the site to the NO'.A Coastal Resource Coordinator. The technical Issues esso:leted with the site are then reviewed bV the appropriate regional components of NOtA In mnsultetlon with the other federal and state trustees. Based on this review. areotonal recommendation will be forwarded to NO'.A ~ters thr014! the <keen Assessments Division for their review.

I expect this review process to take about 60 to 90 dlt,'s. This time can be reduced If the site Investigations have been IXXl!"dlneted with NeW.. The possible outcomes of this process could Include granting aCovenant Not To Sue, granting of aoondlttonal releese, or refusal to grant a covenant and the supporting rationale.

1-s efinal note, project menegers should realize that Imnot give the releese for asite; rather, I start the final technical review. NOlA l'leld!uerters ultimately determines If e release should be granted based on my, and the NOM support steff, review and recommendation. This decision Is passed on to EPA ~ters. To speed the release process and determine potential problems before a releose Is requested, EPA project managers ere encouraged to roordlnete with NOM throughout the RI/FS stage;otherwise NO'.A ~ters response to areleese request wm be much longer (end potentially dllmeglng to Ph( forthcoming OE9)tlettons) as the review processwill begin with the request.

If you hll'le ~questions, please contect me.

Sincerely,

Kenneth Finkelstein

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