1. NRDs 101 Vicky Peters Colorado Attorney General’s Office

2. What are they? n n 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" CERCLA 42 USC 9607(4)(C); OPA 1002(b)(2)(A).

3. Response Action –Respond to the release –Address threats –Protect Human Health and Environment

4. Natural Resource Damages –Compensate public for injuries to natural resources n Primary--Compensation for injuries residual to response action as compared to baseline n Compensatory--Compensation for losses from time of injury (or 1981) until restoration achieved

5. Oil Pollution Act n protect and restore coastal and ocean resources injured by releases of oil, hazardous substances or physical impacts

6. Natural resources n n "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..., [or] any state or local government,…Indian Tribe..." CERCLA sec. 101(16); (OPA 1001(20) and 1006(a) has similar definition)

7. Injury n n the Department of Interior's (DOI) damages assessment regulations define it as a "measurable adverse change in the chemical or physical quality or the viability of a natural resource” 43 CFR 11.14(v). n NOAA regs include impairment of a natural resource service 15 CFR 900.30 (Subpart C)

8. Proof of Injury n n empirical evidence of an adverse change in a particular case (e.g., lower hatching rates or increased incidence of tumors); or n n reliance on a prior regulatory determination, such as water quality standards or FDA tolerance limits

9. Damage Recoveries n n CERCLA section 107(f)(1) allows sums recovered only to be used to restore, replace, or acquire the equivalent of natural resources n n OPA 1006(c) and (f), allows excess recoveries to go to revolving trust account

10. Natural Resource Trustees n State Tribes n Secretaries of Fed Agencies –Agriculture (e.g. Forest Service) –Commerce (NOAA) –Defense –Energy –Interior (FWS)

11. Role of the Public n Input at –Assessment Scoping Phase –Assessment –Restoration Planning –Consent Decree

12. Relevance to DOE sites n Timing--Some sites are close to completion –Rocky Flats, CO –Fernald, OH –Weldon Springs, MO

13. Statute of Limitations n For NPL sites, Federal facilities identified under sec. 120, or facilities at which a remedial action under CERCLA is scheduled: –Action must be brought w/i 3 years of completion of remedial action

14. Selection of Remedies n Incorporate NRD considerations into selection of interim and final remedies

15. Injured Resources n Groundwater -- state resource n Surface water and aquatic life - state, federal, tribal n Terrestrial wildlife, birds - state, federal, tribal n Air?

16. Evolution of NRD Programs n From valuation to restoration n From afterthought to integration n From litigation to cooperation

17. Valuation n Contingent Valuation Methodology n Hedonic Methodology n Market Analysis

18. Restoration-based n Habitat Equivalency Analysis n Resource Equivalency Analysis n “Good projects solve hard cases.” –Steve Hampton, June 2004

19. Integration n Risks of not integrating –Puget sound? Trustees couldn’t restore resources because EPA’s PCB cleanup levels too high to sustain organisms –NJ. Borrow material for cap discovered to be wetlands

20. n Benefits of integration reflected in DOE policy

21. Cooperative Assessments n Tend to incorporate both concepts of –restoration over valuation and –integration