NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION Shelly Hall – Assistant Solicitor Branch of Environmental Restoration Branch of Environmental Restoration U.S. Department of the Interior Office of the Solicitor

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. 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. 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.

Statutory Goals CERCLA and OPA statutory goal is to restore, replace or acquire the equivalent of injured resources and services. 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. 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 Recoveries must be used to restore, replace, rehabilitate, and/or acquire the equivalent natural resources

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

Federal Natural Resource Trustees U.S. Department of the Interior – FWS, BIA, NPS, BLM, BOR U.S. Department of the Interior – FWS, BIA, NPS, BLM, BOR U.S. Department of Commerce – NOAA U.S. Department of Commerce – NOAA Department of Agriculture – Forest Service Department of Agriculture – Forest Service Department of Energy Department of Energy Department of Defense Department of Defense For resources “belonging to, managed by, controlled by, or appertaining to” For resources “belonging to, managed by, controlled by, or appertaining to”

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

Elements of Liability for CERCLA 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; that From a vessel or a facility; that Results in injury to natural resources. Results in injury to natural resources.

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

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

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

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

Integration of Remediation and Restoration Goals Ecological risk assessment and restoration objectives = ecological recovery 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. 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. Response agency and trustees jointly establish remedial goals that minimize long-term effects on natural resources from residual contamination.

Key Elements of Integrated Process Response agency coordination of ecological risk assessment issues with natural resource trustees. 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. 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. Integration of trustee concerns into response process informs studies/actions. Studies/actions designed to address both ecological risk and injury assessment.

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

NRDAR Advisory Committee Committee members – 30 members including federal, state, tribal, NGOs and industry. Committee members – 30 members including federal, state, tribal, NGOs and industry. Subcommittees/working groups may be formed to assist the committee. Subcommittees/working groups may be formed to assist the committee. Designated Federal Officer – Interior’s NRDAR Program Manager; Frank DeLuise 202/ or at Designated Federal Officer – Interior’s NRDAR Program Manager; Frank DeLuise 202/ or at First Committee Meeting – December 1, For info. First Committee Meeting – December 1, For info.