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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.

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NATURAL RESOUCE DAMAGE ASSESSMENT AND RESTORATION

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  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”

  6. 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.

  12. 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.

  13. 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

  15. 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 – Interior’s NRDAR Program Manager; Frank DeLuise 202/208-4143 or at frank_deluise@ios.doi.gov • First Committee Meeting – December 1, 2005. For info. http://restoration.doi.gov/faca

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