Natural Resource Damage Assessments: Technical Issues,
Defensive Strategies, and Approaches to Restoration
Abstract
Natural resource damages (NRD) represent a significant potential
liability for industry that extends well beyond cleanup
liabilities for hazardous substances under CERCLA or other
statutes. The numbers of NRD claims are increasing for
state and federal trustees throughout the country. Although
NRD claims are legal procedures, there is very little case
law and the legal/regulatory framework is dynamic and highly
uncertain. This presentation will be given by three expert
scientists involved in conducting NRD assessments for industry.
The objective will be to present a brief overview of the
regulatory framework and important concepts to be followed
by detailed discussions of important technical issues that
are frequently encountered in NRD cases. Case examples
will be provided that draw upon Exponent’s experience
in more than 30 NRD assessments. Specific topics include
technical strategies for defense, the advantages and disadvantages
of conducting “cooperative” assessments, the
use of habitat equivalency analysis, and approaches to
habitat restoration.
Presentation Outline
I. Technical/ Regulatory Issues and Defensive Strategies
- Introduction
1. Regulatory basis for NRD claims
2. Types of claims
3. Major issues that appear in most cases
- Definitions
1. Resources
2. Injury
3. Baseline
4. Services
5. Restoration
6. Trustees
- The Overall Process As Defined by DOI
1. How it should work
2. How it really works
3. Circumvention of process by trustees
4. Potential changes that may be incorporated in new
regulations
-
What Is an Injury to Natural Resources?
1. Regulatory definition
2. Biological injuries
3. Differences between injury determination and injury
quantification
4. The difficult concept of “services”
- Determination
of Baseline
1. Use of baseline in assessment process
2. Reference area vs. temporal reconstruction
- Causality
1. Typical trustee approach
2. Scientific basis for analysis
3. Biological acceptance criteria
4. Criteria for affirming or rejecting
5. Chemical fingerprinting and source allocation
- Injury
Quantification
1. Chemical criteria vs. determination of services
2. The use of sediment quality values
3. Biomarkers of exposure vs. indicators of service losses
4. Examples of trustee and defendant approaches
- Strategies
for Defense
1. Statutory exclusions
2. Relationship of NRDA to response actions
3. Key technical defenses: baseline, causality, and service
reductions
4. What to do when contacted by trustees
5. Case examples: U.S. v. Asarco et al. and Montana v.
Arco
6. Key decisions: negotiate, write a check, or wait for
lawsuit
- “Cooperative” NRDAs:
Good Idea or Agency Trap?
1. What is a cooperative assessment?
2. PRP objectives
3. Trustee objectives
4. Potential advantages
5. Potential disadvantages
6. Case examples
II. The Use of Habitat Equivalency Analysis
(HEA)
- Scaling Restoration Actions
1. Primary restoration
2. Compensatory restoration
3. Need for scaling procedure for non-monetary values
4. Available guidance and publications
- Conceptual Foundation
1. Avoidance of direct monetization
2. Concept of service units
3. Relationships among resource types and service metrics
4. Discounting over time for injuries and restoration
- Key
Assumptions of HEA
1. Compensation with same services
2. Use of a single service metric
3. Constant real value of services over time
4. Equal unit value of injured and compensatory habitat
services
-
Example HEA Application and Sensitivity Analysis
1. Injury time line
2. Service losses
3. Injury start date
4. Restoration timeline
5. Discount rate
- Important Technical Issues
1. Development of ecological service metrics
2. Discount rate
3. Injury and restoration timelines
4. Equivalency of dissimilar services
- Problems with Trustee
Applications
1. Ignoring concept of baseline services
2. Overly simplistic application for partially injured
resources
3. Emphasis on individual organisms or services of little
consequence
4. Discounting of “old” injuries
5. Interpretation of HEA results as definitive assessment
of injury
- The Future of HEA
1. Potential applicability for various kinds of sites
2. Use in settlement discussions
III. Ecological Restoration
Issues and Strategies
- Introduction
1. Definition of restoration
2. Primary restoration
3. Compensatory restoration
- Implementation of Restoration-based
Approach
1. Find out what the Trustees want
2. Look for leveraged costs/benefits
3. Design within regulatory framework
- Scaling Compensatory
Restoration Actions
1. Why it is important
2. What you need to know
3. Value to value
4. Service to service
- Restoration Project Case Study: Saginaw
Bay
1. Overview
2. Selection of restoration sites
3. Selection of preservation sites
4. Restoration principles
5. Defining features of the preferred alternative
6. Examples of restoration actions
7. Resource values and services provided
- Benefits of Restoration-based
Approach
1. Promotes timely and successful settlement negotiations
2. Avoids calculation of economic damages
3. Provides potential for win-win
- Key Technical Issues
1. Injury quantification
2. Habitat identification, classification, and valuation
3. Pitfalls of ecological restoration (“state-of-the-art”)
4. Recontamination of habitat
5. Monitoring of restoration projects
6. Evaluation of restoration success
IV. Summary
V. Questions and Discussion |
