Natural Resource Damages Assessment & Restoration Conference 2010

1. 2010 Long-Term Surveillance & Maintenance Conference Natural Resource Damages Assessment and Restoration Presented By: Matthew Duchesne Office of Environmental Compliance Office of Environmental Management Department of Energy

2. Natural Resource Damage Assessment & Restoration • NRDAR is separate from but complementary to response, because response actions may affect natural resource damages. • NRDAR is not a response action. • Response Actions are risk based: eliminate or reduce risk of injury to human health and the environment • NRD is based on actual injury and damages

3. Natural Resource Damages Assessment and Restoration CERCLA • CERCLA is the principal statutory source for NRDAR at DOE Facilities. • Authorizes federal, state, and tribal governments to act as natural resource trustees on behalf of the public • Damages recovered may only be used to restore, replace, or acquire the equivalent of the injured natural resources. 3

4. Natural Resource Damages Assessment and Restoration DOE plays three roles at most DOE cleanup sites: • Responsible Party • Lead Response Agency • Natural Resource Trustee (for natural resources located on, over or under DOE land)

5. Natural Resource Damage Assessment & Restoration NRDAR Process NRDAR Regulations • DOI optional NRDAR regulations at 43 CFR Part 11 • NOAA regulations • Rebuttable presumption An NRDAR process following the DOI regulations has four phases: • Pre-Assessment Phase • Assessment Planning Phase • Injury and Damages Assessment Phase • Post-Assessment and Restoration-Planning Phase 5

6. Natural Resource Damage Assessment & Restoration What are Natural Resources? • Virtually anything you can think of: Land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources. • But only if they belong to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, a state or local government, or an Indian tribe. 6

7. Natural Resource Damage Assessment & Restoration What is Injury? • General Definition - A measurable or observable adverse change in the quality or viability of natural resources, including a reduction in the quantity or quality of the human or ecological services that they provide • Per Se Injuries – 43 CFR § 11.62 • E.g., Excedance of MCL’s in groundwater 7

8. Natural Resource Damage Assessment & Restoration What are Damages? • Compensation sought for injuries to natural resources • As measured by: • Economic Value • Cost of restoration • Includes reasonable assessment costs 8

9. Natural Resource Damage Assessment & Restoration What are Natural Resource Services? • Services means the physical and biological functions performed by the natural resource, including the human uses of those functions. • Examples of natural resource services include, but are not limited to: • Consumptive uses, such as extracting surface or groundwater for drinking, irrigation or industrial purposes • Wildlife habitat • Hiking, camping and other recreational uses • Scenic views • Pollution containment or filtering (e.g., wetlands) 9

10. Natural Resource Damage Assessment & Restoration Other Key Terms • Baseline – the conditions that would have existed in the assessment area if the release of hazardous substance(s) or discharge or oil had not occurred – NOT PRISTINE • Restoration Damages – the cost of restoring, replacing or acquiring the equivalent of injured natural resources to a condition in which they can provide the level of services available at baseline • Compensatory Damages – the value of all or a portion of the services lost to the public for the time period from the discharge or release until baseline services are restored or replaced. 10

11. Natural Resource Damage Assessment & Restoration NRDAR at DOE Sites Fernald • Litigation filed in 1986, stayed in 1988 • Settlement reached in 2008 • Combination of on-site restoration and cash payout Rocky Flats • All potential NRD claims settled for $10M by special act of Congress in 2006 11

12. Natural Resource Damage Assessment & Restoration NRDAR at DOE Sites (continued) Oak Ridge • Partial settlement signed in October 2010 for sediment contamination in Lower Watts Barr Reservoir • Expedited NRDA for balance of the site – draft report expected in November 2010 Weldon Spring • Tolling agreement signed in 2007 • Discussions suspended due to lack of funding source 12

13. Natural Resource Damage Assessment & Restoration NRDAR at DOE Sites (continued) Hanford • Cooperative assessment underway • Contract awarded in Summer 2010 for development of an assessment plan • Litigation and settlement negotiations Los Alamos • Cooperative assessment underway • Contract awarded in September 2010 for development of an assessment plan 13

14. Natural Resource Damage Assessment & Restoration NRDAR at DOE Sites (continued) Brookhaven • Cooperative assessment suspended due to state budget cuts Portsmouth • Preliminary discussions held in August 2010 • Settlement negotiations delayed at DOE’s request 14