Natural Resource Damage Claims Research Articles

If coordination of remediation and restoration under CERCLA is such a good idea, why is it not practiced more widely?

Decades of practice have demonstrated favorable outcomes when restoration is considered early in the remedial process, especially when parties have an opportunity to avoid litigation over natural resource damage (NRD) claims. However, these two separate processes are most often done sequentially - with clean up decisions for contaminated sites made during the remedial investigation and feasibility study process and restoration of injured resources during a subsequent natural resource damage assessment. Coordinating these processes offers many advantages for remediating and restoring hazardous waste sites. In this paper, we illustrate why this is true, and explore reasons why it is not practiced more universally. Coordination can generate savings by reducing the amount of time and money required to address natural resource damage claims and build trust among stakeholders. Yet, there are barriers to coordination, such as uncertainty over the benefits that restoration will generate, or the potential risk that undertaking coordination could be viewed as admitting to liability for harm to natural resources. Existing federal statutes also can be an obstacle because they bifurcate remediation and restoration. The economic, legal and policy issues relevant to the integration of remediation and restoration were examined, and how they might be used to encourage early coordination. Habitat equivalency analysis was used to illustrate the tangible natural resource service gains that can be achieved when the processes are coordinated. Selected site-specific examples were drawn upon where coordination occurred and documented. This information was augmented with the results of a survey of companies about their experience with coordination. Finally, we discuss the potential policy and legal approaches that might help bring remediation and restoration together and result in improved practices nationwide, and thereby provide benefits to industrial parties, government, and affected communities alike.

Natural Resource Damages for Climate Change—An Idea Whose Time Is Not Yet Come, Part I: NRD Claims Are Not Currently Viable under CERCLA

As the effects of climate change are felt, affected parties will seek redress in the legal system. Numerous suits have already been filed and this may only be the beginning of a trend. One type of suit that has not yet been filed is the natural resource damage (NRD) claim under CERCLA. While it is unlikely that climate change-based NRD claims could succeed under current law, it may only be a matter of time before they are brought. With the present legal landscape in mind, this article examines statutory requirements under CERCLA to bring a climate change related NRD claim.

OIL SPILLS, SEABIRDS, AND NRDA: DIFFERENCES BETWEEN U.S. WEST, EAST, AND GULF COASTS

ABSTRACT Oil released into the marine environment killed millions of seabirds in the twentieth century and every year tens of thousands of sick, debilitated, moribund, and dead oiled seabirds are beached or sink at sea (Piatt et al. 1990a, Camphuysen & Heubeck 2001, Wiese & Ryan 2003). In the U.S., hundreds to thousands of birds are killed each year by oil released from pipelines, platforms, and vessels (Burger & Fry 1993, Carter 2003, USFWS 2005). Huge oil spills from tankers have killed tens to hundreds of thousands of seabirds in a single event (e.g., Exxon Valdez, Prestige) and even relatively small volumes of oil released from a vessel at sea can kill thousands of seabirds (Page et al. 1990, Piatt et al. 1990b, Burger 1993). Prior to the March 1989 Exxon Valdez oil spill in Alaska, little attention was paid to the loss of seabirds from oil spills and damage claims for injury to natural resources, such as seabirds, were rare. Since the Exxon Valdez spill, and the subsequent passage of the Oil Pollution Act of 1990 (OPA 90), the pursuit of damages for injury to natural resources has become an expected element of the overall cost of an oil spill. This paper discusses: (1) how the enactment of OPA 90 appears to have affected the oil and marine transportation industries in the U.S., especially along the west coast, (2) how, following the Exxon Valdez spill, natural resource damage (NRD) claims for injury to seabirds have become commonplace, but distinctly different when comparing U.S. west coast oil spills with those on the U.S. east and Gulf of Mexico (hereafter “gulf”) coasts, and (3) predictions on the future source of vessel spills and the changing nature of NRD claim resolution nationwide. An earlier version of this manuscript was provided in Helm et al. (2006); this updated version is similar but provides more details on certain points.

Prospective environmental restoration/restoration up front: A concept for an incentive‐based program to increase restoration planning and implementation in the United States

This article describes a concept variously termed prospective environmental restoration, restoration up front, or restoration banking. Briefly, the concept centers on the ability of an entity, public or private, to gain durable credits for undertaking proactive restoration activities. Once obtained, these credits can be applied to an existing liability, held in the event of a future liability, or traded or sold to others that might have need for the credits. In the case of a natural resource damage claim or response action, possessing or applying the credits does not negate the need for responsible entities to clean up spills or releases of hazardous substances or oil or to address their clean-up requirements under applicable federal and state statutes. Concepts similar to prospective environmental restoration/restoration up front include wetlands mitigation banking, conservation habitat banking, and emissions trading. Much of the concept and details provided herein stem from the practice of natural resource damage assessment, although that is not the sole driver for the concept. The concept could also apply where the credits could be used to offset other environmental liabilities, for example, to provide habitat mitigation where development is being planned. The authors believe that the concept, if widely applied, could reduce the time and costs associated with restoration and perhaps lead to an increase in voluntary restoration and conservation nationally. Currently, there are no state or federal regulations or policies that directly provide for this approach.

In Hot Pursuit of NRD Claims

Federal- and state-designated entities' ability to pursue claims for damages to the nation's natural resources have long existed under statutory and common law but, until recently, were placed on the back burner. Pursuit of Natural Resource Damage (NRD) claims by federal and certain state governments have drastically increased. New Jersey and New Mexico have been among the most aggressive. Issues surrounding NRD claims such as allocation of liability, calculation of damages using formulas and technical factors, and causation are the focus of litigation. New Jersey's groundwater initiative and New Mexico's program are being watched closely to determine future success of NRD claims.

Editor's perspective—Developments in natural resource damage claims

Editor's perspective—Developments in natural resource damage claims

The use of habitat equivalency analysis in natural resource damage assessments

Federal and state government agencies and Indian tribes, acting on behalf of the public as trustees, can recover damages to natural resources from companies responsible for oil spills or hazardous-substance releases. Habitat equivalency analysis (HEA) is a method for estimating the appropriate amount of compensation for interim losses resulting from such spills or releases. HEA has several restrictive assumptions that are not met in many situations and its input parameters often are not known with certainty, which can lead to substantial differences between HEA results and the “true” amount of compensation for losses resulting from oil spills or hazardous-substance releases. Critical assumptions of HEA include a preference for compensation with the same services as were injured, a fixed proportion of habitat services to habitat value, and a constant real value of services over time. HEA also requires that complex ecological services are expressed as a single metric and that the incremental effect of spills/releases are estimated reliably over time. Notwithstanding these important assumptions and limitations, HEA is frequently used to settle natural resource damage (NRD) claims and two HEA applications to NRD claims have been upheld by the courts. When properly structured and applied, HEA can produce relatively reliable results for most oil spills and simple cases involving hazardous-substance releases. Even when unmet assumptions and/or differences in professional judgment with respect to input parameters produce differences in HEA results, the method can be useful in achieving an NRD settlement in a variety of situations. However, HEA should only be viewed as a framework to provide a general approximation of any required restoration, and not as a substitute for a formal NRD assessment in cases involving complex hazardous-substance releases.

Natural resource damage claims: Potential DOD liabilities and mitigation opportunities

AbstractThe Natural Resource Damage Assessment (NRDA) provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Oil Pollution Act (OPA), and the Clean Water Act (CWA) designate federal, state, Indian tribe, or international natural resource trustees to: (1) assess damages for injuries to natural resources; (2) recover costs of damages and assessments from responsible parties; and (3) restore, replace, or acquire the equivalent of damaged resources and compensate for lost services. Damages recovered from such claims can be substantial and may exceed cleanup costs. Natural resource trustees are pursuing Natural Resource Damage (NRD) claims where DOD agencies are either responsible parties or co‐trustees. A recent case at the Massachusetts Military Reservation demonstrates that state National Guard and DOD components are vulnerable to NRD claims. International NRD claims for extraterritorial natural resource damages are also possible. DOD natural resource and environmental professionals should be aware of NRD claim liabilities and proactive measures that can reduce the incidence or consequence of potential claims. © 2003 Wiley Periodicals, Inc.

Coordination of Response Activities with Restoration of Natural‐Resource Injuries under CERCLA at DOD Sites

AbstractThe Department of Defense (DOD) is proactively acting as a natural resource trustee to address injuries to natural resources during response under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Taking the leadership role as lead agent and natural resource trustee improves environmental protectiveness standards in remedies while realizing more efficient, cost‐effective data collection to meet interrelated goals. Coordinating timely stakeholder input can promote consistent decisions from all federal agencies and reduce potential for liabilities resulting from natural‐resource damage claims from state or tribal trustees. This article also provides a case study of a Maryland facility that is successfully implementing the principles described herein. The Department of the Navy and stakeholder participants have successfully utilized this approach for the CERCLA assessment phase to fulfill the responsibilities of CERCLA response and trusteeship. © 2001 John Wiley & Sons, Inc.

Coordination of Response Activities with Restoration of Natural-Resource Injuries under CERCLA at DOD Sites

The Department of Defense (DOD) is proactively acting as a natural resource trustee to address injuries to natural resources during response under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Taking the leadership role as lead agent and natural resource trustee improves environmental protectiveness standards in remedies while realizing more efficient, cost-effective data collection to meet interrelated goals. Coordinating timely stakeholder input can promote consistent decisions from all federal agencies and reduce potential for liabilities resulting from natural-resource damage claims from state or tribal trustees. This article also provides a case study of a Maryland facility that is successfully implementing the principles described herein. The Department of the Navy and stakeholder participants have successfully utilized this approach for the CERCLA assessment phase to fulfill the responsibilities of CERCLA response and trusteeship. © 2001 John Wiley & Sons, Inc.

Beyond Natural Resource Damage Assessment: A Navy/State of Washington Oil Spill Restoration Partnership

ABSTRACT Money from oil spill natural resource damage claims in Washington State is used primarily to fund environmental restoration and enhancement projects, but all parties liable for oil spills in the state are invited to propose and perform resource restoration projects in lieu of monetary compensation. As a result of numerous oil spills from Naval vessels and facilities in Washington and the high probability of future spills, Naval Base Seattle developed a comprehensive restoration program that lists potential restoration projects for Navy facilities throughout Washington, and supports restoration opportunities for non-Navy trustee properties. The program has evolved into a collaborative restoration planning effort between the Navy and Washington natural resource agencies to identify and prioritize restoration opportunities to be applied in the event of future Navy spills. To date, three restoration projects have been approved as compensation for five spills into Puget Sound from Naval vessels, and are considered highly successful by both the Navy and the state. This approach results in substantial savings for state agencies, restoration projects that are implemented quickly and efficiently, and environmental education and awareness for Navy personnel.

Estimating Administrative and Procedural Costs for Natural Resource Restoration Settlements

Response and damage assessment costs incurred by natural resource trustee agencies (i.e., the federal, state, Indian tribe, and/or foreign officials authorized to act on behalf of the public interest concerning natural resources) are recoverable elements of natural resource damage claims under the Oil Pollution Act and Comprehensive Environmental Response, Compensation, and Liability Act (Superfund Act). Once a natural resource damage claim is settled, trustee costs for implementing and/or overseeing restoration and compensatory actions are charged against the settlement, except as may be specifically defined in settlement provisions. Consequently, trustee agencies must accurately anticipate their postsettlement costs and/or include provisions for covering these costs in settlement terms. Failure to address such cost elements as trustee management oversight, administrative, and procedural requirements along with the provisions for project design, construction, and performance monitoring in settlements may force trustee agencies to absorb these costs. The range of postsettlement cost factors that should be considered in developing settlement terms for natural resource damages are identified and discussed. A framework for outlining trustee postsettlement planning assumptions and estimating the most common management oversight, administrative, and procedural cost elements is provided.

Potential effects of natural resource damage claims on environmental reform

This article outlines the potential effects of natural resource damage (NRD) claims on recent environmental reform initiatives from industry, legal, and consulting perspectives. Recently, there have been sweeping changes in the environmental arena that are bringing sensibility while ensuring protection of human health and the environment. However, new NRD assessment regulations, if not handled carefully, could follow the same historical pattern where litigation ultimately overwhelmed and impeded any progress made in site remediation. With this in mind, stakeholders must cautiously move forward and ensure that all parties are involved up front during response or corrective action activities and throughout the NRD process. The article summarizes recent environmental reform initiatives, the January 5, 1996, Federal Register publishing of the Oil Pollution Act NRD assessment final ruling, the current status of NRD claims under the Comprehensive Environmental Response, Compensation and Liability Act, NRD valua...

NATURAL RESOURCE DAMAGE ASSESSMENT OF THE PRESIDENTE RIVERA OIL SPILL, DELAWARE RIVER1

ABSTRACT On June 24, 1989, the Uruguayan merchant marine tanker Presidente Rivera, loaded with 19 million gallons of No. 6 fuel oil, ran aground in the Delaware River near Marcus Hook, Pennsylvania, spilling between 200,000 and 300,000 gallons of oil. Currents spread the oil over approximately 29 miles of shoreline in New Jersey, Delaware, and Pennsylvania, reaching upstream as far as Little Tinicum Island, a wildlife refuge near Philadelphia, and downstream as far as Reedy Island, south of the Chesapeake and Delaware Canal. Natural resources under the trusteeship of New Jersey, Delaware, Pennsylvania, the U.S. Department of the Interior, and the National Oceanic and Atmospheric Administration (U.S. Department of Commerce) were affected by the spill, including shoreline parks, fisheries, marshes, birds, and wildlife. Additionally, portions of the river were closed to vessel traffic and nearby creeks were boomed off, preventing access to marinas and boat ramps. After three years of damage assessment, pretrial discovery, and negotiations, the trustees reached a settlement on natural resource damages with the responsible party. This paper discusses the strategy used by the trustees in developing a natural resource damage claim and highlights some of the lessons learned during the assessment and settlement process.

Assessing natural resource damages using environmental annuities

Although research methods exist to place economic values on lost wetland service flows, in many circumtances the cost of conducting such research exceeds the expected value of damages. In some cases sufficient time may not be available to undertake primary research. In addition, the existing wetland valuation research base is often inadequate to support defensible benefits transfer. As an alternative to more traditional valuation techniques, we propose a simplified approach based on environmental annuities. The principal assumption behind this approach is that the public can be compensated for past losses in environmental services through the provision of additional services of the same type in the future. An application of this approach as the basis of a recent natural resource damage claim is described.

How shell cleaned up a 400,000-gallon oil spill

On April 23, 1988, approximately 9,500 barrels (400,000 gallons) of San Joaquin Valley crude oil leaked from an aboveground storage tank at Shell Oil Company's Martinez Manufacturing Complex in Martinez, California and entered Suisun Bay, an important recreation area. This article describes the remediation techniques Shell used to protect and clean up the Bay's oiled marshes, sloughs, rocky shores, marinas, and sandy beaches, and discusses the main methods of oil spill response, site-specific factors that must be considered in choosing remediation techniques, the interaction between Shell and government agencies, and the costs associated with the spill. The cleanup's total cost was approximately $8.3 million, which did not include private claims and claims handling costs; Shell also signed a separate consent decree for $19.75 million with the state of California and the federal government. This spill and its aftermath emphasize the need for preparation that facilitates response actions, improves the chances for cooperation between responsible parties and government agencies, minimizes the time needed for remediation, lowers cleanup costs, and limits natural resource damage claims and penalties.

The assertion of natural resource damage claims by Indian tribal trustees

The assertion of natural resource damage claims by Indian tribal trustees

SUCCESSFUL NATURAL RESOURCE DAMAGE CLAIM FOR A COASTAL OIL SPIL1

ABSTRACT In September 1987 a consent order was signed providing a damage settlement of $1.2 million to the U.S. government and the States of Georgia and South Carolina for an oil spill at Savannah, Georgia. This settlement, which included funds for injuries to fish and wildlife resources at Savannah National Wildlife Refuge and adjoining areas in the lower Savannah River, was reached through a cooperative natural resource damage assessment using the U.S. Department of the Interior's Natural Resource Damage Assessment Regulations. This paper describes this first and successful implementation of the damage assessment regulations and provides guidance for their future use in support of natural resource damage claims.

THE LAW AND PRACTICE OF ASSESSING DAMAGES TO NATURAL RESOURCES1

ABSTRACT For oil spills, the basis for natural resource damage claims in federal law is section 311 of the Federal Water Pollution Control Act (FWPCA). These rarely used provisions will be strengthened by regulations mandated by Congress in the 1980 “Superfund” law. This paper describes the development of federal natural resource law as it applies to compensation of states and the federal government for injuries to natural resources, and the changes to the common law brought about the FWPCA and Superfund provisions and by the recent federal appellate court decision in Puerto Rico v. S.S. Zoe Colocotroni. Finally, the authors present their views on how to make such claims.