What are Natural Resource Damages?
When a spill or release of contaminants into the environment results in injuries to natural resources, designated federal, state or tribal natural resources trustees may seek to a recover natural resource damages (NRDs) from the party or parties legally responsible for the spill or release. The goal of the Trustee’s NRD claim is to secure the restoration, replacement, or acquisition of the equivalent of the injured resources and to compensate the public for its lost use of the damaged natural resources. Damages also include the cost of the damage assessment. “Natural resources” that may be the subject of an NRD claim include, but are not limited to, land, water, groundwater, drinking water supplies, air, fish, wildlife, and biota.
The recovery of damages for injury to natural resources is authorized by both federal and state law. The federal laws are: the Superfund law (i.e., the Comprehensive Environmental Remediation, Compensation and Liability Act or CERCLA), the Oil Pollution Act, and the Clean Water Act. State of New York laws are: the Environmental Conservation Law (ECL), the Navigation Law and common law. CERCLA requires the president and each state governor to designate federal and state officials who will act on behalf of the public as trustees for natural resources. The Governor has designated the Commissioner of Environmental Conservation as the Trustee for New York’s natural resources. The federal Trustee for Onondaga Lake is the United States Department of the Interior (DOI). The Commissioner and USDOI are serving as co-trustees for Onondaga Lake.
Only CERCLA provides a statutory basis for the Onondaga Nation to serve as an NRD trustee. The scope of that authority is both broader possibly more restricted than that of the federal and state trustees. Specifically, the statute reads as follows:
“In the case of an injury to, destruction of, or loss of natural resources under … this section liability shall be …to any Indian Tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in benefit for the trust of such tribe ….”
42 U.S.C. § 9607(f)(1). Related sections of the CERCLA statue appear to limit a Tribe’s ability to recover NRDs, while at the same time other provisions appear to expand the reach of Tribal NRD rights. In sum, the ability, scope and magnitude of the ability of an Indian tribe to be awarded NRDs is less than certain.
There are no exclusions from liability for governmental entities; the definition of “person” expressly includes the United States, states, municipalities, or state political subdivisions. 42 U.S.C. § 9601(21). Congress expressed it clearly: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.” 42 U.S.C. § 9620(a)(1). There are limited exceptions to liability however, such as where a government acquired land involuntarily or through eminent domain, but the general rule is clear: governmental entities receive no special treatment under CERCLA.
The trustees have the following responsibilities:
- Assess the damage to natural resources. See, e.g., 42 U.S.C. §9607(f)(2)(A). Federal trustees can also, upon request from a state or Indian tribe, assess damages for a natural resource under the state’s or tribe’s trusteeship. 42 U.S.C. §9607(f)(2)(A); 33 U.S.C. §2706(c)(1);
- Develop and implement a plan to restore, rehabilitate, or replace damaged natural resources. 33 U.S.C. §2706(c); and
- Request that the Attorney General commence civil suits against NRD defendants. See, e.g., 16 U.S.C. §19jj-2(a); 16 U.S.C. §1443(c)(1).
One of the trustees’ primary responsibilities is to conduct an NRD assessment to determine the extent of the injury to a natural resource and determine the appropriate manner by which to restore the resource. A natural resource damage assessment (NRDA) is “the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine damages for injuries to natural resources.” 43 C.F.R. §11.14(aa).
The specific procedures to be followed for CERCLA and CWA NRD claims are found at 43 C.F.R. Part 11. Under the CERCLA and CWA regulations, there are two kinds of NRDAs allowed, depending on the resource damaged, Type A and Type B procedures. Type A assessments are “standard procedures for simplified assessments requiring minimal field observations to determine damages.” 43 C.F.R. §11.14(ss). Type B assessments are “alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages.” 43 C.F.R. §11.14(tt). The significant difference between the two types of assessments is the level of complexity. Type A assessments are “simplified assessments” and primarily use modeling to assess impacts with minimal field observation. 43 C.F.R. §11.40. So far, Type A procedures have only been promulgated for coastal or marine environments and Great Lake environments. See 43 C.F.R. §11.33(a). Type B assessments require more intensive field observation and a more rigorous assessment. The procedure for Type B assessments requires four steps: preassessment screen, injury determination, quantification, and damage determination. See 43 C.F.R. §11.60-11.84. The Onondaga Lake site is undergoing a Type B assessment.
The Department of Interior’s Bureau of Land Management Natural Resource Damage Assessment and Restoration Handbook notes that the NRDAR provisions of CERCLA and the CWA are based on three key principles:
- Public natural resources are common property of all citizens. The federal and state governments and tribes act as trustees of these resources on behalf of the public.
- The parties responsible for the hazardous substance release or oil spill are liable for the costs of restoring the injured resources and compensating the public for the public losses because of the release or spill until resource restoration is complete.
- The trustees may use any damages recovered from responsible parties through the NRDAR process only to restore, replace, or acquire the equivalent resources for the public trust.
Id., at Section 1.2, Purpose of NRDAR.
Upon completion of an NRDA conducted under CERCLA and the CWA, determinations or assessments of NRDs made by a trustee “shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding.” 42 U.S.C. §9607(f)(2)(C) (applying the rebuttable presumption to both CERCLA and CWA NRD claims); 33 U.S.C. §2706(e)(2). These presumptions allow trustees to shift the burden of proof from the trustee onto the defendant who then has to prove by a preponderance of the evidence that the assessment is invalid. Where NRD result from a discharge of a mixture of oil and hazardous substances, trustees must use the CERCLA and CWA regulations (43 C.F.R. Part 11) in order to obtain the rebuttable presumption. 15 C.F.R. §990.20(c).
Trustee Actions to Date for the Onondaga Lake Site
In 1994 the State Trustee prepared an Onondaga Lake Preassessment Screen. It concluded that (1) a discharge of oil or hazardous substances had occurred; (2) natural resources had been or were likely to be adversely affected; (3) the quantity and concentration of released substances was sufficient to potentially cause injury; (4) there was sufficient data to pursue an assessment; and (5) response actions would not be sufficient to remedy the NRD injury. The following comprised the list of hazardous substances believed to have been released: mercury; chlorinated benzenes; polynuclear aromatic hydrocarbons (PAHs); benzene, toluene and xylenes (BTX); ammonia; calcium and calcium salts; and other ionic wastes.
The 1996 State NRD Assessment Plan stated that the State trustee was asserting that “the natural resources in and around Onondaga Lake… have been injured by releases from Allied-Signal Inc. (Allied) of hazardous substances as defined under CERCLA and have created a public nuisance under New York State common law. In addition, the trustee asserts that releases of substances which are not defined as hazardous substances under CERCLA (referred to as non-hazardous substances in this plan) by Allied have also created a public nuisance under New York State common law.” See page xi of the Plan. “The boundaries of the study area generally include all areas in the vicinity of Onondaga Lake where Allied released hazardous and non-hazardous substances and all areas associated with the Onondaga Lake system where injuries to natural resources attributable to those releases have occurred.” Id.
In 2005 the USFWS prepared a Pre-Assessment Screen that reached the same five conclusions found in the 1994 State-conducted Pre-Assessment Screen. The Screen also concluded on pages 5 and 6 that:
Hazardous substances released to Onondaga Lake include, but are not limited to the following: mercury, PCBs, lead, cadmium, chromium, nickel, benzene, chlorinated benzenes, toluene, xylene, PAHs, and pesticides, including aldrin and dichloro-diphenyl-trichloroethane (DDT).
Mercury is the primary contaminant of concern regarding trust resources. It is found in sediments throughout the lake, generally in excess of 1 ppm in surface sediment, with higher concentrations found in the Ninemile Creek delta and in sediments in the southwestern portion of the lake in an area known as “in-lake waste deposit” (ILWD). The southwestern portion of the lake also contains some of the highest concentrations of other chemicals such as BTEX, PCBs, PAHs, dioxins, and furans.
The Trustees have engaged in natural resource injury studies, damage assessments, and restoration planning relating to the Site since 1991. In November 1996, the NYSDEC published its Onondaga Lake Natural Resource Damage Assessment Plan. In May 2009, the Trustees, the Onondaga Nation, and Honeywell entered into a Cooperative Assessment and Funding Agreement through by which Honeywell agreed to participate and provide funding for the performance of a cooperative natural resource assessment. In October 2012, the Trustees and the Onondaga Nation issued the Onondaga Lake Natural Resource Damage Assessment Plan Addendum. It is understood the on-going assessment has determined that sediment, fish, birds, reptiles, amphibians, and mammals sustained ecological injuries from the hazardous substances releases at the Onondaga Lake site and a loss of recreational fishing trips lost as a result of the releases of hazardous substances at the Site.
It is anticipated the Trustees may release a draft Onondaga Lake Natural Resource Damage Assessment Restoration Plan and Environmental Assessment (“RP/EA”) for public comment in 2017. It is not yet known what the Restoration Plan will propose or what type of recovery the Trustee might secure.
An example of a recent NRD settlement is the accord reached between Alcoa, Inc and Reynolds Metals, Co. with the federal state and tribal Trustees for releases that took place in and around Massena, New York. The Trustees’ assessment determined that sediment, fish, birds, amphibians and mammals sustained ecological and remedial injuries and calculated an estimate of the number of fishing days lost as a result of those injuries. The settling parties in Massena agreed to reimburse approximately $1 million in past assessment costs; contribute $7.2 million for Joint Trustee sponsored Natural Resource Restoration Projects; pay $8.3 million for Tribal Cultural Restoration Projects; and purchase and donate two parcels of land to the state of New York to be incorporated into the Wilson Hill Wildlife Management Area.
Solvay Process Works: syracusethenandnow.org
Kevin C. Murphy
Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.