NATURAL NATURAL RESOUCE RESOUCE DAMAGE DAMAGE

ASSESSMENT ASSESSMENT AND AND

RESTORATIONRESTORATIONShelly Hall – Assistant SolicitorShelly Hall – Assistant Solicitor Branch of Environmental Restoration Branch of Environmental Restoration

U.S. Department of the InteriorU.S. Department of the InteriorOffice of the SolicitorOffice of the Solicitor

Current Statutory Current Statutory Authority for Natural Authority for Natural

Resource Damage Resource Damage ClaimsClaims CERCLA or Superfund (1980) creates a CERCLA or Superfund (1980) creates a

comprehensive scheme for responding to comprehensive scheme for responding to hazardous substance releases. Authorizes hazardous substance releases. Authorizes federal, state, and tribal governments to seek federal, state, and tribal governments to seek recoveries for natural resource injuries caused recoveries for natural resource injuries caused by releases. 42 U.S.C.A. § 9601 et. seq.by releases. 42 U.S.C.A. § 9601 et. seq.

Oil Pollution Act (OPA)(1990) authorizes a Oil Pollution Act (OPA)(1990) authorizes a substantially similar liability scheme for substantially similar liability scheme for discharges of oil into navigable waters of the discharges of oil into navigable waters of the U.S. 33 U.S.C.A § 2701 et. seq.U.S. 33 U.S.C.A § 2701 et. seq.

Statutory GoalsStatutory Goals CERCLA and OPA statutory goal is to CERCLA and OPA statutory goal is to

restore, replace or acquire the restore, replace or acquire the equivalent of injured resources and equivalent of injured resources and services.services.

Compensation is to the public for the Compensation is to the public for the lost use of natural resources or the lost use of natural resources or the services they provide. Make the public services they provide. Make the public whole.whole.

Recoveries must be used to restore, Recoveries must be used to restore, replace, rehabilitate, and/or acquire the replace, rehabilitate, and/or acquire the equivalent natural resourcesequivalent natural resources

Natural Resource Natural Resource TrusteesTrustees

States, Tribes and Federal agencies States, Tribes and Federal agencies are designated trustees under are designated trustees under CERCLA/OPACERCLA/OPA

Trusteeship based on resources Trusteeship based on resources owned or managedowned or managed

Overlapping in natureOverlapping in nature Cooperative approach by TrusteesCooperative approach by Trustees Private citizens have no cause of Private citizens have no cause of

action for NRDaction for NRD

Federal Natural Federal Natural Resource TrusteesResource Trustees

U.S. Department of the Interior – FWS, U.S. Department of the Interior – FWS, BIA, NPS, BLM, BORBIA, NPS, BLM, BOR

U.S. Department of Commerce – NOAAU.S. Department of Commerce – NOAA Department of Agriculture – Forest Department of Agriculture – Forest

ServiceService Department of Energy Department of Energy Department of DefenseDepartment of Defense For resources “belonging to, managed For resources “belonging to, managed

by, controlled by, or appertaining to”by, controlled by, or appertaining to”

State and Tribal State and Tribal TrusteesTrustees

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

Tribes act as trustee for resources Tribes act as trustee for resources “belonging to, managed by, controlled “belonging to, managed by, controlled by, or appertaining to” a tribe.by, or appertaining to” a tribe.

Elements of Liability for Elements of Liability for CERCLA NRD ClaimsCERCLA NRD Claims

Release of a hazardous substance;Release of a hazardous substance; By a responsible party;By a responsible party; From a vessel or a facility; thatFrom a vessel or a facility; that ResultsResults in injury to natural in injury to natural

resources. resources.

Claim ComponentsClaim Components

Cost to restore, replace or acquire Cost to restore, replace or acquire the equivalent of the the equivalent of the injuredinjured natural natural resources resources plusplus

Value of interim lost services = lost Value of interim lost services = lost services from the time of injury until services from the time of injury until restoration is complete restoration is complete plusplus

Reasonable assessment costs.Reasonable assessment costs.

CERCLA NRD CERCLA NRD RegulationsRegulations

DOI promulgated regulations - 43 DOI promulgated regulations - 43 CFR Part 11CFR Part 11

Injury = “measurable adverse change Injury = “measurable adverse change in the chemical or physical quality or in the chemical or physical quality or the viability of a natural resource.”the viability of a natural resource.”

Trustees must establish a causal Trustees must establish a causal “pathway” between release and injury“pathway” between release and injury

Steps in Calculating Steps in Calculating CERCLA NRD ClaimsCERCLA NRD Claims

Injury determination = purpose of Injury determination = purpose of assessment activities is to determine assessment activities is to determine baseline condition of resources. baseline condition of resources. Baseline is condition of resources pre-Baseline is condition of resources pre-release.release.

Calculating Damages = Trustees Calculating Damages = Trustees develop and calculate the cost of develop and calculate the cost of implementing publicly reviewed implementing publicly reviewed restoration plan. Conduct economic restoration plan. Conduct economic studies to monetize compensable values. studies to monetize compensable values.

Relationship of NRD to Relationship of NRD to CleanupCleanup

Generally, cleanup decisions come Generally, cleanup decisions come first.first.

Cleanup objectives focus on Cleanup objectives focus on eliminating exposure to hazardous eliminating exposure to hazardous substances or oil.substances or oil.

NRD claims address past harm and NRD claims address past harm and continuing harm to natural continuing harm to natural resources not addressed by the resources not addressed by the cleanup work. cleanup work.

Integration of Integration of Remediation and Remediation and Restoration GoalsRestoration Goals Ecological risk assessment and restoration Ecological risk assessment and restoration

objectives = ecological recoveryobjectives = ecological recovery Integrated approach can achieve Integrated approach can achieve

environmental protection and restoration environmental protection and restoration more efficiently and in a more cost more efficiently and in a more cost effective manner.effective manner.

Response agency and trustees jointly Response agency and trustees jointly establish remedial goals that minimize establish remedial goals that minimize long-term effects on natural resources long-term effects on natural resources from residual contamination.from residual contamination.

Key Elements of Integrated Key Elements of Integrated ProcessProcess

Response agency coordination of Response agency coordination of ecological risk assessment issues with ecological risk assessment issues with natural resource trustees.natural resource trustees.

Identification of shared ecological Identification of shared ecological recovery goals by response agency and recovery goals by response agency and natural resource trustees.natural resource trustees.

Integration of trustee concerns into Integration of trustee concerns into response process informs studies/actions. response process informs studies/actions. Studies/actions designed to address both Studies/actions designed to address both ecological risk and injury assessment. ecological risk and injury assessment.

NRDAR Advisory NRDAR Advisory CommitteeCommittee

April 2005 Secretary of the Interior April 2005 Secretary of the Interior established NRDAR Advisory established NRDAR Advisory Committee under the Federal Committee under the Federal Advisory Committee Act. Advisory Committee Act.

Purpose of committee is to provide Purpose of committee is to provide advice and recommendations on advice and recommendations on issues related to NRD under issues related to NRD under CERCLA and OPA.CERCLA and OPA.

2-year term of committee2-year term of committee

NRDAR Advisory CommitteeNRDAR Advisory Committee Committee members – 30 members Committee members – 30 members

including federal, state, tribal, NGOs and including federal, state, tribal, NGOs and industry.industry.

Subcommittees/working groups may be Subcommittees/working groups may be formed to assist the committee.formed to assist the committee.

Designated Federal Officer – Interior’s Designated Federal Officer – Interior’s NRDAR Program Manager; Frank DeLuise NRDAR Program Manager; Frank DeLuise 202/208-4143 or at 202/208-4143 or at frank_deluise@ios.doi.govfrank_deluise@ios.doi.gov

First Committee Meeting – December 1, First Committee Meeting – December 1, 2005. For info. 2005. For info. http://restoration.doi.gov/facahttp://restoration.doi.gov/faca