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NRDs 101

NRDs 101. Vicky Peters Colorado Attorney General’s Office. What are they?.

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NRDs 101

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

  2. What are they? • 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 • Primary--Compensation for injuries residual to response action as compared to baseline • Compensatory--Compensation for losses from time of injury (or 1981) until restoration achieved

  5. Oil Pollution Act • protect and restorecoastal and ocean resourcesinjured by releases of oil,hazardous substances or physical impacts

  6. Natural resources • "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 • 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). • NOAA regs include impairment of a natural resource service 15 CFR 900.30 (Subpart C)

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

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

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

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

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

  13. Statute of Limitations • 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 • Incorporate NRD considerations into selection of interim and final remedies

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

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

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

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

  19. Integration • 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. Benefits of integration reflected in DOE policy

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

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