Overview of Integrated Natural Resource Damage Assessment Process
Jen Lawton, ENVIRON International Corporation, Burton, OH

NOAA’s Approach to Cooperatively Resolving Natural Resource Liability
Ken Finkelstein, National Oceanic and Atmospheric Administration, Boston, MA

Myths, Incentives and Challenges of Natural Resource Damage Assessments: A State Trustee Perspective
Dale Young, Massachusetts Executive Office of Environmental Affairs, Natural Resource Restoration Program, Boston, MA

Natural Resource Damage Assessment: Lessons Learned from a Legal Perspective
Michael Daneker:  Arnold & Porter, LLP, Washington, DC

Estimation of Natural Resource Damages for 23 Florida Cases Using Modeling of Physical Fates and Biological Injuries
Jill Rowe, Applied Science Associates, Inc., Narragansett, RI

Application of a Restoration Inventory to Natural Resource Damage Assessments
Sarah Watts, Northern Ecological Associates, Inc., Portland, ME

Using DOJ’s Database of Natural Resource Damage Settlements to Look Forwards and Backwards
Tim Barber, ENVIRON International Corporation, Burton, OH

Overview of Integrated Natural Resource Damage Assessment Process

Jen Lawton, ENVIRON International Corporation, 13801 W. Center St, PO Box 405, Burton, Ohio 44021, Tel: 440-834-1460, jlawton@environcorp.com
Tim Barber, ENVIRON International Corporation, 13801 W. Center St, PO Box 405, Burton, Ohio 44021, Tel: 440-834-1460, tbarber@environcorp.com
Mark Travers, ENVIRON International Corporation, 13801 W. Center St, PO Box 405, Burton, Ohio 44021, Tel: 440-834-1460

Natural Resource Damage Assessment (NRDA) is a process to determine the appropriate amount and type of restoration needed to compensate the public for losses following the releases of hazardous substances.   The NRDA process is most commonly performed under the authority of the Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the SARA, and/or Oil Pollution Act.  Federal, state, and tribal natural resource trustees must use natural resource damage recoveries to restore, rehabilitate, replace, and/or acquire the equivalent of injured natural resources and services.  The relationship of NRDA to CERCLA response and remediation activities has historically been somewhat disjointed.  Agencies and stakeholders are required to coordinate, but not necessarily integrate activities where possible.  This presentation will provide an overview of the NRDA process, federal statutes and regulations, and limitations. 

NOAA’s Approach to Cooperatively Resolving Natural Resource Liability

Kenneth Finkelstein, NOAA Office of Response and Restoration, c/o EPA Region 1 (HIO), 1 Congress Street, Boston, MA 02114, Tel: 617-918-1499, Email: Ken.Finkelstein@NOAA.gov

NOAA’s Office of Response and Restoration (OR&R) acts as a federal natural resource trustee whose principal mission is to protect and restore natural resources by countering and responding to environmental threats and promoting sound decision-making in the coastal zone.  The integration of remedial and restoration investigations, planning, and activities is a successful paradigm for achieving restoration-based settlements.  Because NOAA places a technical liaison respectively within or nearby federal and state remedial decision-makers, we effectively work to integrate the remedial and damage assessment process to protect natural resources, to reduce or eliminate residual natural resource injuries after cleanup, and to achieve restoration as part of a cooperative natural resource injury settlement with responsible parties.

There are two primary paths within OR&R that can lead to the resolution of natural resource damage liability under CERCLA; 1) a cooperative and integrated approach to remediation and restoration leading to a negotiated comprehensive settlement, the results of which are often included in the Consent Decree or 2) a formal damage assessment to assess injury that uses the codified regulations under 43 CFR Part 11.  Both processes result in a Restoration Plan but the former provides the benefits of flexibility, speed, and cost efficiency.  Nevertheless, the latter may be necessary when: 1) the responsible party is not cooperative, 2) there is a potential for large-scale economic and biological injury, or 3) the remedial action does not address significant natural resource injury.   A similar approach is available at oil spills whereby the responsible party is invited to engage in natural resource injury assessment and restoration efforts under Trustee oversight.

The cooperative integrated remediation/restoration approach is characterized by 1) an integrated and streamlined process for data assembly to support planning for remediation and restoration, 2) development of protective cleanup strategies to minimize residual injury and enhance recovery of coastal areas, 3) injury assessment, restoration planning and scaling, 4) the negotiated release of natural resource liability through a Covenant Not To Sue, and 5) implementation and monitoring of restoration. 

Cooperative comprehensive or universal settlements to resolve both cleanup and natural resource liability under CERCLA are becoming more common around the country.  This presentation will include a discussion of such settlements in Connecticut, Rhode Island, and Massachusetts.  

Myths, Incentives and Challenges of Natural Resource Damage Assessments: A State Trustee Perspective

Dale C. Young, Massachusetts Executive Office of Environmental Affairs, Natural Resource Damages Program Director, 100 Cambridge Street, Suite 900, Boston, MA, 02114-2524, Tel: 617-626-1134, Fax: 617-626-1181, Email: dale.young@state.ma.us

Pursuant to Federal Superfund (CERCLA), the Oil Pollution Act, and various state statutory authorities, Natural Resource Trustees are authorized to conduct Natural Resource Damage (NRD) Assessments and seek restoration of natural resources injured by releases of hazardous substances and discharges of oil. Trustees seek to identify the natural resources injured, determine the extent of injuries, recover damages from those responsible, and plan and carry out natural resource restoration activities. The ultimate goal is to restore natural resources injured by contamination. Cooperative NRD Assessments involving Responsible Parties, Trustees, and the remedial agencies, can be an efficient and effective approach to achieving restoration and resolving liability at sites. Benefits include innovative approaches to the NRD process, coordination of site remediation with restoration, and strengthened partnerships with industry and other stakeholders.

This presentation will discuss State perspectives on NRD issues, highlight NRD case settlements and program goals for Massachusetts, and explore the various “Myths, Incentives and Challenges" in achieving timely NRD restoration. Members of the NRD community including Trustees, Industry, and NGOs will gain a better understanding of the structure, challenges, and benefits involved in NRD.

Natural Resource Damage Assessment: Lessons Learned from a Legal Perspective

Michael Daneker, Arnold & Porter, LLP, 555 Twelfth Street, NW, Washington, DC, 20004-1206, Tel: 202-942-5177, Fax: 202-942-5999, Email: Michael.Daneker@aporter.com

Over the last 25 years, the natural resource damage (NRD) regulations and assessment strategies have evolved towards a cooperative approach that attempts to integrate remediation and restoration considerations.  This presentation will discuss key legal issues associated with existing NRD regulations and the trend towards cooperative assessments.  Additionally, this presentation will provide an overview of current trends such as the integration of remediation and restoration early in the CERCLA process, the state of New Jersey’s NRD initiative, and the trustees’ pursuit of damages at RCRA corrective action sites. 

Estimation of Natural Resource Damages for 23 Florida Cases Using Modeling of Physical Fates and Biological Injuries

Jill Rowe, Deborah French McCay, and Nicole Whittier Applied Science Associates, Inc., 70 Dean Knauss Drive, Narragansett, RI 02882-1143, Tel: 401 789 6224, Fax: 401 789 1932

Oil spill modeling was performed using the “type A” (simplified, with a minimum of field data requirements) modeling approach and SIMAP (Spill Impact Model Analysis Package) to assess marine biological injuries and natural resource damages (NRD) for 23 spill cases identified by Florida Department of Environmental Protection (DEP).    The objectives were to provide (1) an assessment of the pathways and fate of the oil, and thus, estimate exposure to the water surface, shoreline and other habitats, water column, and sediments; and (2) estimates of injuries to wildlife, aquatic organisms, and habitats that were used to scale compensatory restoration.  Compensatory habitat restoration for all quantifiable wildlife, fish and invertebrate injuries was scaled using Habitat Equivalency Analysis (HEA) and wetland habitat creation as mitigation.  However, this is not a direct method of increasing sea turtle production.  Therefore, scaling was performed to estimate the number of hatchlings needed to compensate for the sea turtle injuries.  DEP then successfully submitted claims for NRD to the US Coast Guard Oil Pollution Fund.

Application of a Restoration Inventory to Natural Resource Damage Assessments

Sarah C. Watts, Northern Ecological Associates, Inc., 451 Presumpscot Street, Portland, Maine, 04103, Tel: 207-879-9496, Fax: 207-879-9481, Email: swatts@neamaine.com
David J. Santillo, Ph.D., Northern Ecological Associates, Inc., 451 Presumpscot Street, Portland, Maine, 04103, Tel: 207-879-9496, Fax: 207-879-9481, Email: dsantillo@neamaine.com
Derek Pelletier, ENVIRON International Corporation, 136 Commercial Street, Suite 402, Portland, Maine, 04101, Tel: 207-347-4413, Fax: 207-347-4384, Email: dpelletier@environcorp.com
Miranda Henning, ENVIRON International Corporation, 136 Commercial Street, Suite 402, Portland, Maine, 04101, Tel: 207-347-4413, Fax: 207-347-4384, Email: mhenning@environcorp.com

A field-based inventory developed for the purpose of evaluating and documenting potential restoration opportunities was adapted to use in expedited Natural Resource Damage settlements.  The outcome – an inventory of restoration projects with their associated resource service values – is well-suited to states with multiple smaller Natural Resource Damage claims.  Background data collection provides useful information to assist in identifying potential wetland areas in need of restoration, but in-field evaluations are critical to ensure that all sites are identified and adequately documented.  The interactive database allows exploration and expansion of the inventory, which is based on baseline field data, site restoration potential, screening and ranking criteria, and resource service levels, expressed as discounted service acre years (DSAYs).  For any identified site, users can print out a summary report that provides detailed information regarding the environmental degradation observed on site, the severity of degradation, options for restoration, project cost, a list of project strengths and barriers to success, as well as information on land ownership, site location, and surrounding land uses.  Thus, when responsible parties and Trustees are considering settlement options for a given Natural Resource Damage claim, the full range of restoration opportunities within that site’s watershed, as well as their associated DSAY values, can be considered in order to more rapidly identify the most effective settlement.  To date, the inventory details potential restoration opportunities along 150 miles of rivers, streams, and estuaries in four watersheds in coastal Maine, and more than 480 sites in need of restoration have been identified.

Using DOJ’s Database of Natural Resource Damage Settlements to Look Forwards and Backwards

Tim Barber, ENVIRON International Corporation, 13801 W. Center St, PO Box 405, Burton, Ohio 44021, Tel: 440-834-1460, tbarber@environcorp.com.
Jen Lawton, ENVIRON International Corporation, 13801 W. Center St, PO Box 405, Burton, Ohio 44021, Tel: 440-834-1460, jlawton@environcorp.com

Since 1982, more than 230 settlements for natural resource damages (NRD) have been reached at sites throughout the United States.  The Department of Justice has recovered in excess of $3.35 billion from private and public entities.  This total is likely to rise significantly in the near future as state, federal, and tribal trustees pursue NRD claims at hundreds of additional sites.  Settlements can include primary and compensatory restoration and reasonable assessment costs; damages associated with compensatory restoration to address interim lost services generally are the largest share of the totals.  Settlement costs have varied dramatically depending on a number of factors, including site size and location, chemicals of interest, affected resources, and the responsible industry.  The large number of documented settlements provides an opportunity to predict the cost range of similar NRD cases for verification purposes.  Coupling a nationwide settlement database with multivariate statistical methods allows the prediction of future settlement costs associated with NRD claims. This presentation will provide an overview of the NRD settlements database including structure and variables that can be used in the analysis.  Statistical methods will be developed to predict a range and “most likely” NRD cost estimate based on the historical settlements.  

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