NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION

1
NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION

• Shelly Hall Assistant Solicitor
• Branch of Environmental Restoration
• U.S. Department of the Interior
• Office of the Solicitor

2
Current Statutory Authority for Natural Resource
Damage Claims

• CERCLA or Superfund (1980) creates a
  comprehensive scheme for responding to hazardous
  substance releases. Authorizes federal, state,
  and tribal governments to seek recoveries for
  natural resource injuries caused by releases. 42
  U.S.C.A. 9601 et. seq.
• Oil Pollution Act (OPA)(1990) authorizes a
  substantially similar liability scheme for
  discharges of oil into navigable waters of the
  U.S. 33 U.S.C.A 2701 et. seq.

3
Statutory Goals

• CERCLA and OPA statutory goal is to restore,
  replace or acquire the equivalent of injured
  resources and services.
• Compensation is to the public for the lost use of
  natural resources or the services they provide.
  Make the public whole.
• Recoveries must be used to restore, replace,
  rehabilitate, and/or acquire the equivalent
  natural resources

4
Natural Resource Trustees

• States, Tribes and Federal agencies are
  designated trustees under CERCLA/OPA
• Trusteeship based on resources owned or managed
• Overlapping in nature
• Cooperative approach by Trustees
• Private citizens have no cause of action for NRD

5
Federal Natural Resource Trustees

• U.S. Department of the Interior FWS, BIA, NPS,
  BLM, BOR
• U.S. Department of Commerce NOAA
• Department of Agriculture Forest Service
• Department of Energy
• Department of Defense
• For resources belonging to, managed by,
  controlled by, or appertaining to

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State and Tribal Trustees

• Governor designates state officials to act on
  behalf of the public as trustees for resources
  within a state or belonging to, managed by,
  controlled by, or appertaining to a State.
• Tribes act as trustee for resources belonging
  to, managed by, controlled by, or appertaining
  to a tribe.

7
Elements of Liability for CERCLA NRD Claims

• Release of a hazardous substance
• By a responsible party
• From a vessel or a facility that
• Results in injury to natural resources.

8
Claim Components

• Cost to restore, replace or acquire the
  equivalent of the injured natural resources plus
• Value of interim lost services lost services
  from the time of injury until restoration is
  complete plus
• Reasonable assessment costs.

9
CERCLA NRD Regulations

• DOI promulgated regulations - 43 CFR Part 11
• Injury measurable adverse change in the
  chemical or physical quality or the viability of
  a natural resource.
• Trustees must establish a causal pathway
  between release and injury

10
Steps in Calculating CERCLA NRD Claims

• Injury determination purpose of assessment
  activities is to determine baseline condition of
  resources. Baseline is condition of resources
  pre-release.
• Calculating Damages Trustees develop and
  calculate the cost of implementing publicly
  reviewed restoration plan. Conduct economic
  studies to monetize compensable values.

11
Relationship of NRD to Cleanup

• Generally, cleanup decisions come first.
• Cleanup objectives focus on eliminating exposure
  to hazardous substances or oil.
• NRD claims address past harm and continuing harm
  to natural resources not addressed by the cleanup
  work.

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Integration of Remediation and Restoration Goals

• Ecological risk assessment and restoration
  objectives ecological recovery
• Integrated approach can achieve environmental
  protection and restoration more efficiently and
  in a more cost effective manner.
• Response agency and trustees jointly establish
  remedial goals that minimize long-term effects on
  natural resources from residual contamination.

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Key Elements of Integrated Process

• Response agency coordination of ecological risk
  assessment issues with natural resource trustees.
• Identification of shared ecological recovery
  goals by response agency and natural resource
  trustees.
• Integration of trustee concerns into response
  process informs studies/actions. Studies/actions
  designed to address both ecological risk and
  injury assessment.

14
NRDAR Advisory Committee

• April 2005 Secretary of the Interior established
  NRDAR Advisory Committee under the Federal
  Advisory Committee Act.
• Purpose of committee is to provide advice and
  recommendations on issues related to NRD under
  CERCLA and OPA.
• 2-year term of committee

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NRDAR Advisory Committee

• Committee members 30 members including federal,
  state, tribal, NGOs and industry.
• Subcommittees/working groups may be formed to
  assist the committee.
• Designated Federal Officer Interiors NRDAR
  Program Manager Frank DeLuise 202/208-4143 or
  at frank_deluise_at_ios.doi.gov
• First Committee Meeting December 1, 2005. For
  info. http//restoration.doi.gov/faca