Harman, Charles, AMEC, NRD in Missouri, Overview of the NRD Process, at 2014 Missouri Hazardous...
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Transcript of Harman, Charles, AMEC, NRD in Missouri, Overview of the NRD Process, at 2014 Missouri Hazardous...
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
Va
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of
Re
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eV
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f R
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ou
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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