1 Presented By: Matthew Duchesne Office of Environmental Compliance Office of Environmental Management Department of Energy 2010 Long-Term Surveillance & Maintenance Conference Natural Resource Damages Assessment and Restoration

Natural Resource Damage Assessment & Restoration NRDAR is separate from but complementary to response, because response actions may affect natural resource damages. NRDAR is not a response action. Response Actions are risk based: eliminate or reduce risk of injury to human health and the environment NRD is based on actual injury and damages 2

CERCLA CERCLA is the principal statutory source for NRDAR at DOE Facilities. Authorizes federal, state, and tribal governments to act as natural resource trustees on behalf of the public Damages recovered may only be used to restore, replace, or acquire the equivalent of the injured natural resources. Natural Resource Damages Assessment and Restoration 3

DOE plays three roles at most DOE cleanup sites: Responsible Party Lead Response Agency Natural Resource Trustee (for natural resources located on, over or under DOE land) 4

NRDAR Process NRDAR Regulations DOI optional NRDAR regulations at 43 CFR Part 11 NOAA regulations Rebuttable presumption An NRDAR process following the DOI regulations has four phases: Pre-Assessment Phase Assessment Planning Phase Injury and Damages Assessment Phase Post-Assessment and Restoration-Planning Phase Natural Resource Damage Assessment & Restoration 5

What are Natural Resources? Virtually anything you can think of: Land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources. But only if they belong to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, a state or local government, or an Indian tribe. Natural Resource Damage Assessment & Restoration 6

What is Injury? General Definition - A measurable or observable adverse change in the quality or viability of natural resources, including a reduction in the quantity or quality of the human or ecological services that they provide Per Se Injuries – 43 CFR § –E.g., Excedance of MCL’s in groundwater Natural Resource Damage Assessment & Restoration 7

What are Damages? Compensation sought for injuries to natural resources As measured by: Economic Value Cost of restoration Includes reasonable assessment costs Natural Resource Damage Assessment & Restoration 8

What are Natural Resource Services? Services means the physical and biological functions performed by the natural resource, including the human uses of those functions. Examples of natural resource services include, but are not limited to: –Consumptive uses, such as extracting surface or groundwater for drinking, irrigation or industrial purposes –Wildlife habitat –Hiking, camping and other recreational uses –Scenic views –Pollution containment or filtering (e.g., wetlands) Natural Resource Damage Assessment & Restoration 9

Other Key Terms Baseline – the conditions that would have existed in the assessment area if the release of hazardous substance(s) or discharge or oil had not occurred – NOT PRISTINE Restoration Damages – the cost of restoring, replacing or acquiring the equivalent of injured natural resources to a condition in which they can provide the level of services available at baseline Compensatory Damages – the value of all or a portion of the services lost to the public for the time period from the discharge or release until baseline services are restored or replaced. Natural Resource Damage Assessment & Restoration 10

NRDAR at DOE Sites Fernald –Litigation filed in 1986, stayed in 1988 –Settlement reached in 2008 –Combination of on-site restoration and cash payout Rocky Flats – All potential NRD claims settled for $10M by special act of Congress in 2006 Natural Resource Damage Assessment & Restoration 11

NRDAR at DOE Sites (continued) Oak Ridge – Partial settlement signed in October 2010 for sediment contamination in Lower Watts Barr Reservoir – Expedited NRDA for balance of the site – draft report expected in November 2010 Weldon Spring –Tolling agreement signed in 2007 –Discussions suspended due to lack of funding source Natural Resource Damage Assessment & Restoration 12

NRDAR at DOE Sites (continued) Hanford – Cooperative assessment underway – Contract awarded in Summer 2010 for development of an assessment plan – Litigation and settlement negotiations Los Alamos – Cooperative assessment underway – Contract awarded in September 2010 for development of an assessment plan Natural Resource Damage Assessment & Restoration 13

NRDAR at DOE Sites (continued) Brookhaven – Cooperative assessment suspended due to state budget cuts Portsmouth – Preliminary discussions held in August 2010 – Settlement negotiations delayed at DOE’s request Natural Resource Damage Assessment & Restoration 14