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NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION. Shelly Hall – Assistant Solicitor Branch of Environmental Restoration U.S. Department of the Interior Office of the Solicitor. Current Statutory Authority for Natural Resource Damage Claims.

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Natural resouce damage assessment and restoration

NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION

Shelly Hall – Assistant Solicitor

Branch of Environmental Restoration

U.S. Department of the Interior

Office of the Solicitor


Current statutory authority for natural resource damage claims
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.


Statutory goals
Statutory Goals Claims

  • 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


Natural resource trustees
Natural Resource Trustees Claims

  • 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


Federal natural resource trustees
Federal Natural Resource Trustees Claims

  • 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”


State and tribal trustees
State and Tribal Trustees Claims

  • 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.


Elements of liability for cercla nrd claims
Elements of Liability for CERCLA NRD Claims Claims

  • Release of a hazardous substance;

  • By a responsible party;

  • From a vessel or a facility; that

  • Results in injury to natural resources.


Claim components
Claim Components Claims

  • 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.


Cercla nrd regulations
CERCLA NRD Regulations Claims

  • 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


Steps in calculating cercla nrd claims
Steps in Calculating CERCLA NRD Claims 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.


Relationship of nrd to cleanup
Relationship of NRD to Cleanup Claims

  • 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.


Integration of remediation and restoration goals
Integration of Remediation and Restoration Goals Claims

  • 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.


Key elements of integrated process
Key Elements of Integrated Process Claims

  • 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.


Nrdar advisory committee
NRDAR Advisory Committee Claims

  • 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


Nrdar advisory committee1
NRDAR Advisory Committee Claims

  • Committee members – 30 members including federal, state, tribal, NGOs and industry.

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

  • Designated Federal Officer – Interior’s NRDAR Program Manager; Frank DeLuise 202/208-4143 or at [email protected]

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


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