Natural Resource Damage Assessment Elements and Regulations

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 111-140

Page 111

Chapter 10

Natural Resource Damage Assessment

Elements and Regulations

10.1 Introduction

he Comprehensive Environmental Response, Compensation, a nd Liability Act (CERCLA) and the Oil

Pollution Act (OPA) of 1990 required the promulgation of natural resource damage assessment (NR DA)

regulations.1 In the case of CERCLA, the U.S. Congress directed the president to promulgate regulations;

the president in turn delegated this task to the U.S. Department of the Interior (DOI).2 Consistent with the

direction of Congress, CERCLA regulations cover both CERCLA and the Clean Water Act (CWA). Under

OPA, Congress provided a specic direction that the undersecretary of the U.S. Department of Commerce

for Oceans and Atmosphere, i.e., National Oceanic and At mospheric Administration (NOAA), promul-

gate the regulations in consultation with other a ected agencies and directed that OPA regulations sup-

plant CERCLA regulations with regard to oil discharges.

Interestingly, the regulations under both CERCLA a nd OPA are voluntary for the trustees. us, the

trustees are f ree to conduct damage assessments without following the regulations.3 However, if the trust-

ees elect to follow the regulations, the trustees obtain the benet of a rebuttable presumption in litigation.

As we have discussed else where, what a “rebuttable presumption” means in practice in litigation is an

unsettled matter.4

Regardless of whether or not the trustees follow the regulations, trustees and potentially responsible

parties (PRPs)5 refer to CERCLA and OPA regulations6 for insight as to methods for proving injury a nd

valuing damage. Although the concepts and analytic steps for damage assessment are similar under both

regulations, there are some dierences between the regulations. e OPA regulations are brief; they tend to

establish objectives a nd provide general guida nce for elements of a damage assessment. By comparison to

OPA regulations, CERCLA regulations are specic, lengthy, and complicated. e CERCL A regulations

provide quite specic direction regarding tools, techniques, and methods to demonstrate injury and prove

damages.

Both CERCLA and OPA regulations were years in development. In the case of CERCLA regulations,

their development spanned decades, two “nal rules,” and legal challenges to both rules that resulted in

portions of each rule being set aside. e OPA reg ulations involved a six-year history of promulgation

culminating in a challenge to the na l rule in the U.S. Court of Appeals for the District of Columbia

1. 42 U.S.C. §9651(c), ELR S. CERCLA §301(c); 33 U.S.C. §2706(e)(1), ELR S. OPA §1006(e)(1).

2. See Exec. Order No. 12136, 44 Fed. Reg. 28771 (May 15, 1979); Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 29, 1987), ELR A.

M. 45031.

3. Both the OPA regulations and the CERCLA regulations make explicit that they are voluntary and are not intended to aect the recoverability

of damages by trustees not following them. See 15 C.F.R. §990.11 and 43 C.F.R. §11.10.

4. See discussion above in Section 4.3.5, concerning CERCLA and Section 5.4.4, concerning OPA.

5. e OPA regulations, consistent with OPA, refer to “responsible parties” rather than PRPS. Because we are often describing parties potentially

liable under both CERCLA and OPA, for editorial consistency, we use the term “PRP” throughout this book, notwithstanding the fact that

the OPA regulations use the term “responsible party.”

6. is chapter refers to the regulations promulgated by DOI under CERCLA, found at 43 C.F.R. Part 11, as “the CERCLA regulations,” which

are found in their entirety in the online appendix to this book (Online Appendix 1). e regulations promulgated by NOAA under OPA,

found at 15 C.F.R. pt. 990, will be referred to as “the OPA regulations.” e OPA regulations are found in their entirety in the online appendix

to this book (Online Appendix 2).

Page 112 Natural Resource Damage Assessment Deskbook

(D.C.) Circuit. Further, it took many years for the agencies to amend the regulations to conform to court

mandates; the most recent amendments to the CERCLA reg ulations to conform to court directives were

promulgated in 20 08 and were premised in part on the advice of an advisory committee that DOI con-

vened in 2005.

e litigation surrounding both the CERCLA and OPA regulations provides important insight for their

interpretation. In addition, the case law provides important guidance to those not following the regulations

on key issues in damage assessment.

is chapter discusses structure and general content of the current CERCLA and OPA regulations.

Chapters t hat follow focus on specic tools and techniques in injury determination and quantication

(Chapter 11), damage valuation (Chapter 13), and restoration planning and implementation (Chapter 14).

Given the fact that CERCLA and OPA regulations outline methods and tools in damage assessment, chap-

ters that follow also reference the regulations.

10.2 Overview of Elements in a Natural Resource Damage Assessment

Litigation under any federal natura l resource damage (NRD) statute discussed in this book shares certain

steps and elements of proof. First, before ling in court, the wise trustee determines whether the trustee

has a right to bring a claim under a federal statute and, given natura l restoration and the costs and risks of

litigation, whether the trustee should bring a claim. e trustee also ta kes steps to preserve evidence in this

preling phase. Second, once the trustee has led an NRD claim, for the claim to be successful, the trustee

must prove the nature and extent of injuries “caused” by the incident to resources under its trusteeship.

ird, to prevail in court, the trustee must reduce the injury proven to a monetary amount or set of activi-

ties that PR Ps must pay or underta ke to compensate the public for the injury cau sed. is is the damage

phase of the case. Fourth, all statutes al low recovery of reasonable assessment costs. Finally, if a trustee is

successful in court (or through settlement), in general under all statutes discussed under this handbook

the trustee must use NRDs recovered to implement a logical plan for restoration of injuries caused by the

incident.

Both CERCLA and OPA reg ulations outline steps similar to those described above. Section 10.3

explains the current CERCLA regulations with greater specicity. Section 10.4 outlines the current OPA

NRDA reg ulations applicable to discharges of oil regulated under OPA. Subsections 10.5 through 10.7

describe the history of the development of the CERCLA and OPA regulations and describe ke y holdings

of the D.C. Circuit in cases addressing challenges to the regulations. ese cases provide insight as to the

appropriate interpretation of the regulations and also limitations and opportunities for NRDAs not fol-

lowing the regulations.

10.3 The CERCLA Regulations

CERCLA directed the president to promulgate regulations for the assessment of da mages for injury to,

destruction of, or loss of natura l resources resulting from releases covered by CERCLA and §311 of the

CWA.7

Congress required that the regulations include the “best available procedures” to determine injury both

“direct and indirect” and damages. Congress also instructed the president to consider replacement value,

use value, and the ability of the ecos ystem or resource to recover in connection with damage a ssessment.8

Congress also mandated that the regulations specif y procedures for two types of assessments:

(A) standard procedures for simplied asses sments requiring minima l eld observation, including establishi ng

measures of damage s based on units of discharge or release or units of aecte d area [Type A Assessments], and

7. 42 U.S.C. §9651(c), ELR S. CERCLA §115(c). e OPA regulations supersede 43 C.F.R. Part 11 with respect to “oil discharges covered

by OPA.” 15 C.F.R. §990(a). CWA §311 applies to discharges of hazardous substances as well as oil. Hence, the CERCLA regulations still

clearly apply to discharges of hazardous substances under CWA §311, whereas discharges of oil are addressed by the OPA regulations. For

damages resulting from mixtures of oil and hazardous substances, the CERCLA regulations apply. 15 C.F.R. §990(c).

8. 42 U.S.C. §9651(c), ELR S. CERCLA §301(c).