Techniques in Injury Assessment

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 141-156

Page 141

Chapter 11

Techniques in Injury Assessment

11.1 Introduction

he injury assessment phase is a basic component of a natural resource damage assessment (NRDA) under

all t he statutes d iscussed in this handbook—without proof of injury by the government there c an be no

“damages” in the legal sense of the word. e purpose of the injury assessment phase is to dene the nature,

extent, and scope of injuries resulting from a discharge, release, or activit y covered by a statute providing

a claim for damage s.

Some statutes discussed in this handbook a llow federal agencies to recover damages for injuries caused

by any mea ns, including physical ones; the Marine Protection, Research, and Sanctuaries Act (MPRSA)

and the National Park System Resources Protection Act (NPSRPA) fall into this category. Other statutes

allow federal, state, and triba l trustees to recover for injuries caused by particular substances. e Oil Pol-

lution Act (OPA) of 1990 only pertains to discharges of oil; the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) only pertains to releases of ha zardous subst ances; a nd the

Clean Water Act (CWA) covers discharges of both oil and hazardous substa nces.1

Regardless of which statute is triggered, one ca n think of injury assessment a s composed of two parts:

injury determination and injury quantication. is is how the U.S. Department of t he Interior (DOI) and

the National Oceanic and Atmospheric Administration (NOA A) have conceptualized injury assessment

in the CERCLA and OPA regulations. Injury determination considers whether or not an actionable activ-

ity has resu lted in any injury covered by the statute in question. In short, is there some injury and do the

agencies or trustees have jurisdiction? Injury quantication determines the scale or magnitude of injury to

natural resources (or loss of services). is conceptual division has appeal for government agencies, trust-

ees, and responsible parties ali ke in that it requires t he government at the outset to consider whether or

not a case or damage assessment should be pursued at all. Looking at things from a technical perspective,

however, the practica l realit y is that injury determination and quantic ation are frequently scientically

intertwined. us, work plans are developed and data interpreted with both issues in mind and, in many

instances, there is no clear division in analysis bet ween determination and quantication. As a result, in

this chapter we treat the concepts together as appropriate.

e organization of this chapter is as follows. Section 11.2 discusses what constitutes injury. Section

11.3 presents a description of process and management considerations for injury assessment. Section 11.4

describes injury assessment methods to determine injury and baseline; it a lso discusses considerations in

study design and quality a ssurance. Section 11.5 addresses the summary of the results of the injury assess-

ment and the connection between injury and damage assessment.

Because of the frequency of use of OPA and CERCLA and the importance of cases under these statutes,

this chapter references approaches to injury assessment under the OPA and CERCLA regulations. As noted

in Chapter 10, the OPA and CERCLA reg ulations are voluntary—the trustees are not required to follow

them. Nevertheless, both regu lations provide helpf ul guidance to those undertaking injury assessments

1. Table 3-1 in Chapter 3 shows the coverage of federal natural resource damage authorities.

Page 142 Natural Resource Damage Assessment Deskbook

whether or not they are being conducted pursuant to the reg ulations. e principles discussed in this chap-

ter are relevant to injury assessments performed either by government agencies and trustees or potentially

responsible parties (PRPs).

In this chapter, we do not present al l the required procedures a nd steps of the CERCLA or OPA regu-

lations. ose interested in following these regulations should refer to Chapter 10, which set s forth the

technical and procedural requirements for damage assessments under the regulations. is chapter presents

general concepts and specic techniques in injury assessment.

11.2 Def‌inition of Injury

Before undertaking assessment activities, it is important to understand what constitutes an “injury”; that is,

what are we looking for in the assessment? None of the statutes discussed in this handbook denes injury.

As a result, the ippant answer to the question is: “Injury is anything an expert says that it is.” Nevertheless,

the OPA and CERCLA regulations provide more thoughtful responses to the question of what constitutes

injury. ese denitions can help guide injury assessment activities under all t he statutes discussed in t his

handbook.

e denitions under the OPA and CERCLA regulations are similar but not identical. ey are tailored

to apply only to injuries from oil and hazardous substances; nonetheless, they present excellent conceptual

frameworks for what injury is, regardless of the manner in which injury occurs. Under the CERCL A reg u-

lations, injury is

[A] measurable adverse change, either long- or short-term, in the c hem ical or physical qualit y or the viability

of a natural resou rce resulting either directly or indirectly from exposure to a di scharge of oi l or release of

hazardous substance, or exposure to a product of reac tions resulting from t he discharge of oi l or release of a

hazardous subst ance.2

e denition of “injury” in the CERCLA regulations also encompasses the phrases “ destruction” and

“loss.”3 Destruction means the tota l and irreversible loss of a natural resource,4 whereas loss is a measurable

adverse reduction of a chemical or physical qua lity or viability of a natural resource.5 Courts apply these

denitions to make conclusions of law regarding damages to natural resources.6

e CERCLA regulations also include denitions of specic resources, including sur face water and

groundwater resources, air resources, geologic resources, and biological resources.7 e criteria for injury

to these resources are determined by various environmental and human health laws that have jurisdiction

over the respective resources.8

e denition under OPA is similar; however, it includes observable, not just measurable, adverse

change.9 us, under both denitions, injuries are those that both d irectly and indirectly result from an

incident and involve some adverse change from a “baseline” level. e CERCLA denition provides a

working denition of injury under all the statutes discussed in this book, regardless of the means by which

injury occurred.

11.2.1 Physical Injuries

Two statutes discussed in this ha ndbook, MPRSA and NPSRPA, can be triggered by injuries caused by

physical means, e.g., a boat grounding on a coral reef causing injury to the reef, or a sherman who unlaw-

fully shoots a sea lion.10 Other statutes discussed in this handbook are only triggered by injuries resulting

from releases of oil or hazardous substa nces.

2. 43 C.F.R. §11.14(v).

3. Id.

4. Id. §11.14(m).

5. Id. §11.14(l).

6. See, e.g., Coeur d’Alene v. ASARCO, 280 F. Supp. 2d 1094, 1123-24 (D. Idaho 2003).

7. 43 C.F.R. §11.62(b)-(f).

8. Id.

9. 15 C.F.R. §990.30.

10. MPRSA and NPSRPA cover injuries caused by physical means to National Marine Sanctuary and park unit resources, respectively.