Missouri Hazardous Waste SeminarNRD in Missouri

Overview of the NRD Process

November 4, 2014

NRD Regulatory Basis

• Clean Water Act Section 311(F)(4) & (5)

Cleanup costs incurred in restoration or replacement of natural resources

• CERCLA Section 107

Recover damages necessary to restore injured natural resources.

• Oil Pollution Act of 1990

Recovery of natural resource damages caused by oil spills

Trustees

• Department of the Interior

U.S. Fish and Wildlife Service

National Park Service

• Department of Commerce

National Oceanic and Atmospheric Administration

• Department of Agriculture

U.S. Forest Service

• Indian Tribes

• Department of Energy

• Department of Defense

• States

Definition of Natural ResourcesCERCLA Section 101(16)

• “land, fish , wildlife, biota, air, water, ground

water, drinking water supplies, and other such

resources belonging to, managed by, held in trust

by, appertaining to, or otherwise controlled by the

United States … any State or local government,

any foreign government, any Indian Tribe…..”

Definitions

• Injury

Measurable, adverse change in chemical or physical quality, or viability of a natural resource

• Services

Physical and biological functions performed by natural resources (habitat, recreation, aesthetics, drinking water)

• Damages

Compensation for loss or reduction of services

“Causal” Connection• Section 107(a)(4)(c) of CERCLA provides that

responsible parties are liable for “[D]amages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release.”

• To establish causal link, Trustees must show:Injuries or losses to natural resourcesNexus with lost servicesDirect correlation between injuries and release

caused by responsible party

Causal Connection

Baseline

• Fundamental premise in the NRD process

• The condition of the resource or resources that would have existed at the assessment area had the release not occurred

• Changes from baseline are to be measured in surface water, groundwater, air and geologic resources in the area in which contamination from the discharge or release is found (43 CFR § 11.71(h) – (l)

• Changes in biologic resources to be determined by changes at the population, ecosystem, or habitat level (43 CFR § 11.71(h) – (l)

Establishment of Baselines

• PRP liability does not extend to diminished ecosystem services and/or other "injuries" not caused by the hazardous substance release.

• A given PRP is not responsible for injuries from releases that occurred wholly before the PRP had an ownership, operational or other interest.

• Trustees must consider baseline in determination of injuries in terrestrial and aquatic ecosystems.

Establishment of BaselineDefinitions

Injury Definitions

• CERCLA Section 107(a)(4)(C)

• “Damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release.”

• Nexus between a release and the injury must be proven

• Limited to injuries that occurred after the passage of CERCLA (1981)

Injury Determination

• Either chemical or physical quality of resource

• NRD regulations allow proof of injury by either:

Empirical evidence of an adverse change in the resource

Exceedance of regulatory standard

Service Determination• Physical and biological functions performed by the resource

• Result of the quality of the resource.

• Habitat and supporting ecosystem, nutrient cycling, geochemical exchange processes, primary/secondary production, transport of energy (food)

• Baseline services must be determined as part of the injury quantification stage (43 CRF 11.72[a])

Services

Services (Continued)

• Calculation of restoration is based on

Determination of baseline services of injured resources;

Determination of the extent of injuries and the reduction of services resulting from the injuries;

Determination of recoverability of the injured resources (43 CFR 11.70[c])

• Baseline services must be determined as part of the injury quantification stage (43 CRF 11.72[a])

NRDA Concept

• Natural resources managed by trustees

• Natural resource provide a service to the public

• Injury to resources from chronic release or spill results in a loss of service

• Responsible party is obligated to pay for the lost services, for restoration to the point services are restored, and for the trustees costs

NRDA Concept (Continued)

• Responsible party pays for restoration of services to some predetermined baseline or reference condition

• Trustees required to use recovered damages to restore, replace, or acquire the equivalent of the affected resource

Relationship to Remedial Action

• A natural resource damage action under CERCLA usually seeks to recover for residual harm that will exist after any remedial action implemented by EPA

• NRD actions can and have been brought under CERCLA in situations not involving a remedial action

Concept Overview

PristinePristine

BaselineBaseline

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TimeTime

Natural RecoveryNatural Recovery

RemediationRemediation

ChemicalChemicalReleaseRelease

Restoration

Value of the NRDA =Value of lost services

+ Compensatory

NRDA Process

Pre-assessment (Is there a problem?)

Injury determination (What are the injuries?)

Injury quantification (What are the lost services?)

Damage determination (What are the costs?)

Restoration (Plan/restore the injured resources)

Two Types of Injury Determinations

• Type A: Simplified procedures. Computer model.

• Type B: More rigorous scientific evaluations conducted in the field pursuant to a series of USFWS guidance documents