The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, et seq., and CERCLA’s implementing regulations in the National Contingency Plan (NCP), 40 CFR Part 300, makes responsible parties of natural resource damages (NRD) liable for damages that result from injuries to natural resources caused, directly or indirectly, by the release of a hazardous substance(s). Liability for natural resource injuries is in addition to and apart from liability for cleanup costs such as CERCLA response costs. The NRD program objective is to accurately identify the extent of damages through Natural Resource Damage Assessments and compensate the public for lost resources or services by restoring, replacing, or acquiring the equivalent losses. Natural resource trustees are charged with enforcing CERCLA’s NRD provisions on the public’s behalf.
Natural Resource Damage Assessments
A Natural Resource Damage Assessment (NRDA) identifies additional actions, beyond the response needed, to address injuries to natural resources. Damages to natural resources are evaluated by identifying the functions or “services” provided by the resources, determining the baseline level of the services provided by the injured resource(s), and quantifying the reduction in service levels as a result of the contamination. Examples include actions needed to restore the productivity of habitats or species diversity injured by the past releases or to replace them with substitute resources. A natural resource trustee may also seek compensation for the loss of injured natural resources from the time of injury until their full restoration by assessing lost services.
Natural Resource Trustees
CERCLA and the NCP create three categories of natural resource trustees: (1) federal trustees, who are designated by virtue of land management responsibility or to act as trustee for specific resources (e.g., DOE is a trustee for all natural resources found on, under or above land that is managed by DOE); (2) state trustees, who are designated by the governor of each state; and (3) tribal trustees, who are trustees for any natural resources owned, managed, controlled by or held in trust for the benefit of the tribe. Trusteeship often overlaps, which requires a coordinated implementation effort among the trustees. For example, DOE and the Department of the Interior (DOI) both have trust responsibilities for endangered species located on DOE-managed land. Depending on the species and state law, the state and/or a tribe may have trust responsibility for the same resource as well.
DOE NRD Integration Policy
The Office of Environmental Management (EM) is committed to supporting NRD restoration opportunities that are integrated with cleanup activities and other NRD trustee activities where applicable. Under DOE Policy 140.1, Natural Resource Damage Assessment Cooperation and Integration, EM implements DOE’s NRD Integration Policy across the complex to minimize total life-cycle costs and facilitate the expeditious and cost-effective assessment of damages and restoration of natural resources at DOE sites. Integration provides opportunities to streamline data collection and analysis and leverage mobilized cleanup contractors to perform NRD restoration activities.
An example of an NRD restoration activity integrated with cleanup is the Fernald site in southwestern Ohio. The restoration included planting of native plant species in lieu of industrial/commercial equivalents, such as turf grasses. Native species can provide greater environmental services than what CERCLA requires and are a source of NRD credit to offset other environmental service losses.
Another example of an NRD restoration project is the establishment of conservation easements for properties that would have otherwise been used for residential, agricultural, and/or industrial purposes. The Black Oak Ridge Conservation Easement at Oak Ridge is the outcome of a partial NRD settlement reached between the site and the State of Tennessee.