Natural Resource Damages: Related Statutory Information
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This information is provided as a reference tool to facilitate an understanding of the statutory authority under which (1) EPA is required to notify and coordinate with Natural Resource Trustees and (2) Trustees conduct natural resource damage assessments (NRDAs). In some cases, interpretation and summarization of the statutes' language was necessary due to space constraints.
This is not intended to be a comprehensive examination of all sections of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA) that could affect Trustees and NRD; rather it simply augments those statutory authorities that are discussed in other parts of this web site. Other provisions of these two statutes could affect Trustees and NRD.
Table of Contents
| Defining NRD | CERCLA | OPA | ||
|---|---|---|---|---|
| Definition of Damages | §101(6) - Defines "damages" as "injury or loss of natural resources," as set forth in Sections 107(a)(4)(C) and 111(b). | §1001(5) - Defines damages as those specified in Section 1002(b)(2), including "the cost of assessing these damages." §1002(b)(2) - Outlines six categories of damages for which a responsible party is liable under Section 1002(a). These are: natural resources; real or personal property; subsistence use; revenues; profits and earning capacity; and public services. Damages to natural resources are defined as "injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage." These damages are recoverable by Federal, State, Indian Tribe, and foreign government Trustees. Damages to real or personal property are defined as "injury to, or economic losses resulting from destruction of, real or personal property." These damages are recoverable by the person who owns or leases that property. Damages to loss of subsistence use of natural resources "shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources." Damages for revenues are "equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources. These damages are recoverable by the Federal government, a State, or a political subdivision of a State. Damages for profits and earning capacity are "equal to the loss of profits or impairment of earning capacity due to injury, destruction, or loss of real property, personal property, or natural resources." These damages are recoverable by any claimant. Damages for public services are the "net costs of providing increased or additional public services during or after removal activities." These damages are recoverable by a State or political subdivision of a State. |
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| Definition of Natural Resources | §101(16) - Defines "natural resources" as "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States ... any State or local government, any foreign government, [or] any Indian [T]ribe." Any member of an Indian Tribe can be a Trustee if the resources are subject to a trust restriction on alienation. | §1001(20) - Defines natural resources as "land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States ... any State or local government or Indian [T]ribe, or any foreign government." Federal natural resources include the "resources of the exclusive economic zone." | ||
| Trustee Roles and Responsibilities | CERCLA | OPA | ||
|---|---|---|---|---|
| Requirement of Trustee Notification | §104(b)(2)-Requirement of Trustee Notification- Directs the President to notify the appropriate Federal and State Natural Resource Trustees of "potential damages to natural resources resulting from releases under investigation ... and ... to coordinate the assessments, investigations, and planning" with such Trustees. | §1011- Consultation on Removal Actions- Requires the President to consult with the affected Trustees, designated under Section 1006, on the appropriate removal action to be taken in connection with any discharge of oil. | ||
| Designation of Trustees |
§107(f)(1) - Requires the President, or authorized representative of any State, to act on behalf of the public as Trustee to recover damages. §107(f)(2)(A) - Requires the President to designate in the National Contingency Plan (NCP) the Federal officials who shall act on behalf of the public as Trustees for natural resources. [This designation can be found at 40 CFR Part 300, Subpart G.] §107(f)(2)(B) - Requires the State Governor to designate State officials who may act on behalf of the public as Trustees for natural resources. The Governor shall notify the President of these designations. |
§1006(b)- States that the President or the authorized representative of any State, Indian Tribe, or foreign government, shall act on behalf of the public, Indian Tribe, or foreign country as Trustee of natural resources "to present a claim for and to recover damages to the natural resources." Requires that the following parties designate Trustees: the President designate Federal Trustees to act on behalf of the public; the Governor of each State designate State and local officials to act on behalf of the public (and notify the President of such designation); the governing body of any Indian Tribe designate Tribal officials to act on behalf of the Tribe or its members (and notify the President of such designation); and the head of any foreign government designate the Trustee to act on behalf of that government as Trustee (and notify the President of such designatio |
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| Responsibilities of Trustees |
§107(f)(2)(A)- Requires Federal Trustees to "assess damages for injury to, destruction of, or loss of natural resources ... under their trusteeship." Federal Trustees may assess damages for State natural resources "upon request of and reimbursement from a State and at the Federal officials' discretion." §107(f)(2)(B)- - Requires State Trustees to "assess damages for injury to, destruction of, or loss of natural resources ... under their trusteeship." §111(i)Restoration of Natural Resources - Prohibits Superfund monies to be used for "the restoration, rehabilitation, or replacement or acquisition of the equivalent of any natural resources until a plan for the use of such funds has been developed and adopted" by the affected Trustee, and "after adequate public notice and opportunity for hearing and consideration of all public comment." There is one exception to this requirement: in situations that require action to avoid an irreversible loss of natural resources or to prevent or reduce any continuing danger to natural resources, funds may used without the Section 111(i) plan. Affected Trustees are: (1) Federal agencies; (2) the Governor or Governors of any State having sustained damages to natural resources within its borders, belonging to, managed by or appertaining to such State, and (3) the governing body of any Indian Tribe having sustained damage to natural resources belonging to, managed by, controlled by, or appertaining to such Tribe, or belonging to a member of such Tribe if such resources are subject to a trust restriction on alienation. Superfund monies cannot be used to pay for natural resource claims. |
The Federal government may, "upon request of and reimbursement from a State or Indian [T]ribe ... assess damages for the natural resources under the State's or Tribe's trusteeship." |
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| Coordination Between Federal Government and Trustees for NRD | §122(j)(1)- Directs the President to "notify the Federal [N]atural [R]esource [T]rustees of the negotiations" and to "encourage the participation of such [T]rustee in the negotiations" when involved in negotiations concerning a release that may have resulted in damages to natural resources under the trusteeship of the United States. | §1011-Requires the President to consult with the affected Trustees, designated under Section 1006, on the appropriate removal action to be taken in connection with any discharge of oil. | ||
| Regulations Pertaining to NRDAs | §301(c)- Directs the President to promulgate regulations pertaining to NRD assessment. The regulations shall specify (1) "standard procedures for simplified assessments requiring minimal field observation" and (2) "alternative protocols for conducting assessments in individual cases." The regulations are to be reviewed and revised as appropriate every two years.
The "simplified assessments" shall include methods of establishing measures of damages based on units of discharge or release or units of affected areas. The assessments for individual cases shall include methods of determining "the type and extent of short- and long-term injury, destruction, or loss." The regulations are to provide the "best available procedures to determine such damages, both direct and indirect injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover." |
§1006(e)(1)- Directs the President, acting through the Under Secretary of Commerce for Oceans and Atmosphere, to promulgate regulations for the assessment of NRD from discharge of oil no later than two years after the date of enactment of OPA. | ||
| Liability for NRD and Judicial Review | CERCLA | OPA | ||
|---|---|---|---|---|
| Liability for NRD |
§107(a)(4)(C)- Defines the scope of natural resource liability as "damages for, injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from" a release of hazardous substances or a threatened release that causes the incurrence of response costs.
For liability to extend to a State, the natural resources must be "within the State or belonging to, managed by, controlled by, or appertaining to such State." For liability to extend to an Indian Tribe, the natural resources must be "belonging to, managed by, controlled by, or appertaining to such [T]ribe, or belong to a member of such [T]ribe if such resources are subject to a trust restriction on alienation." |
§1002(a)- Specifies that "each responsible party for a vessel or a facility from which oil is discharged, or which poses a substantial threat of a discharge of oil.is liable for . . . damages specified in Section 1002(b)(2) that result from such an incident." The discharge or threat of discharge of oil must be into or upon navigable waters, adjoining shorelines, or the exclusive economic zone.
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| Limitation on Natural Resource Liability |
§107(f)(1)- States the following conditions for not finding a party liable for NRD: (1) if the party has demonstrated that the NRD was specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement or comparable analysis; (2) the decision to grant the permit or license authorizes the commitment of natural resources; and (3) the facility or project was operating within the terms of the permit or license. [In the case of Indian Tribes, the issuance of the permit or license must not be inconsistent with the fiduciary duty of the United States.] |
§1004- Provides liability limits for responsible parties and any removal costs incurred by, or on behalf of, the responsible party. The limits do not apply if the incident was proximately caused by gross negligence or willful misconduct of, or the violation of any applicable Federal safety, construction, or operating regulation by, the responsible party. In addition, the limits do not apply if the responsible party fails or refuses to report the incident as required by law or to provide all reasonable cooperation and assistance requested by responsible officials in connection with removal activities. |
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| Use of Recovered Funds | §107(f)(1)- Stipulates that sums recovered by Federal and State Trustees for NRD shall be retained by the Trustee "only to restore, replace, or acquire the equivalent of" the subject natural resources. When the United States Government is the Trustee, the award can be used "without further appropriation." | §1006(f)- Specifies that sums recovered by Trustees "shall be retained ... in a revolving trust account, without further appropriation, for use only to reimburse or pay costs incurred" by the Trustee under Section 1006(c) with respect to the damaged natural resources. Any amounts in excess of those required for reimbursement and costs shall be deposited in this fund. | ||
| Measurement of Damages | §107(f)(1)- States that measurement of NRD shall "not be limited by the sums which can be used to restore or replace" the subject natural resources. | §1006(d)(1)-(2)- Specifies that the measure of NRD is the following: (1) "the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of, the damaged natural resources"; (2) "the diminution in value of those natural resources pending restoration"; and (3) "the reasonable cost of assessing those damages." These costs shall be determined using the plans discussed under Section 1006(c). | ||
| Prohibition of Double Recovery | §107(f)(1)- Prohibits double recovery for NRD, including recovering the costs of assessment, restoration, rehabilitation, or acquisition for the same release and same natural resource. | §1006(d)(3)- Prohibits double recovery for NRD for the same incident and natural resource. | ||
| Limitation on Retroactivity | §107(f)(1)- Prohibits NRD recovery, where the damages and the release of hazardous substances occurred wholly before the date of enactment of CERCLA (i.e., December 11, 1980). | ------------------ | ||
| Rebuttable Presumption and Judicial Review | §107(f)(2)(C)- Requires that a determination or assessment of NRD made by a Trustee in accordance with regulations promulgated under CERCLA Section 301 shall have "the force and effect of a rebuttable presumption" in any administrative or judicial proceeding. | §1006(e)(2)- Requires that any determination and assessment of damages made in accordance with the regulations promulgated under Section 1006(e)(1) shall have "the force and effect of a rebuttable presumption" in any administrative or judicial proceeding. | ||
| Period in Which NRD Action May be Brought | §113(g)(1)- States a number of conditions for bringing an NRD action:
No action may be commenced for NRD unless the action is commenced within three years after the later of: the date of discovery of the loss; or the date on which regulations pertaining to NRD assessment are promulgated under Section 301(c). An action for recovery of NRD must be commenced within three years after completion of a remedial action (excluding operation and maintenance). This condition is applicable for NPL sites, Federal facilities, and any vessel or facility where a CERCLA remedial action is scheduled. Actions may also not be brought (1) prior to 60 days after the Federal or State Trustee provides to the President and the potentially responsible party a notice of intent to file suit or (2) before the selection of the remedial action if the President is diligently proceeding with the remedial investigation and feasibility study (RI/FS). This limitation does not apply to actions filed on or before October 17, 1986. Sections 113(g)(3)-(4) provide exceptions for the Section 113(g)(1) limitation period on actions involving contribution and subrogation. Section 113(g)(3) provides that no action for contribution of NRD may be commenced more than three years after: (1) the date of judgment for recovery of NRD; or (2) the date of an administrative or court order for a de minimis or cost recovery settlement. Section 113(g)(4) requires that, when a party is subrogated to a claim because that party has paid the claim, an action for recovery of those monies must be made within three years of the payment. [Section 126(d) describes the period in which an NRD action may be brought for Tribal claims.] §126(d)- Provides that for Tribal Trustees, the deadline for filing NRD claims is the later of: (1) expiration of the otherwise applicable period of limitations; or (2) two years after the United States, acting in its capacity as Trustee for the Tribe, gives written notice to the Tribe that it will not present a claim on behalf of the Tribe or fails to present a claim within the time limitations specified elsewhere in the statute. |
§1017(f)(1)- An action for NRD shall be barred unless the action is brought within three years after: (1) "the date on which the loss and the connection of the loss with the discharge in question are reasonably discoverable with the exercise of due care" or (2) in the case of NRD under Section 1002(b)(2)(A), the date of completion of the NRD assessment authorized in Section 1006(e). Section 1017(f)(3)-(4) provides exceptions for the Section 1017(f)(1) limitation period in actions involving contribution and subrogation. Section 1017(f)(3) provides that no action for contribution of NRD may be commenced more than three years after: (1) the date of judgment for recovery of NRD; or (2) the date of a judicially approved settlement for NRD. Section 1017(f)(4) requires that, when a party is subrogated to a claim because that party has paid the claim, an action for recovery of those monies must be made within three years of the payment. |
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| Covenant Not To Sue | §122(j)(2)- States that covenants not to sue for NRD under Federal trusteeship may be entered into "only if the Federal [N]atural [R]esource [T]rustee has agreed in writing to such covenant." The Federal Trustee may agree to a covenant not to sue if the potentially responsible party agrees to undertake appropriate actions to protect and restore the injured natural resources. | ------------------ | ||
| Court Review of Non-Discretionary Duty | ---------------- | §1006(g)- States that any person may have a Federal court review of actions by any Federal official where there is "alleged to be a failure of that official to perform a duty under Section 1006 that is not discretionary with that official." The court may award costs of litigation to any prevailing party. | ||
| Trust Fund Payment for NRD | CERCLA | OPA | ||
|---|---|---|---|---|
| Use of Trust Fund for NRD |
§111(a)(3)- Authorizes the Hazardous Substance Superfund (Superfund) to pay claims for NRD. [Superfund monies cannot be used to pay for natural resource claims.]
The President can assert a natural resource claim for 1) natural resources over which the United States has sovereign rights, or 2) natural resources within the territory of the fishery conservation zone of the United States to the extent they are managed by the United States. States may assert claims for natural resources "within the State or belonging to, managed by, controlled by, or appertaining to such State." Indian Tribes, or the United States acting on behalf of Indian Tribes, can file claims for natural resources "belonging to, managed by, controlled by, or appertaining to such [T]ribe, or belong to a member of such [T]ribe if such resources are subject to a trust restriction on alienation." |
§1012(a)(2)- The Oil Spill Liability Trust Fund (Oil Spill Fund) is available for the payment of costs incurred by certain Trustees in "assessing natural resource damages and for developing and implementing plans for the restoration, rehabilitation, replacement, or acquisition of the equivalent of damaged resources" that are determined by the President to be consistent with the NCP. Only Federal, State, and Indian Tribe Trustees can receive payment of NRD costs from the Oil Spill Fund. | ||
| Limitation on Use of Trust Fund for NRD | -------------- |
§1012(h)(2)- No claim may be presented to the Oil Spill Fund for recovery of NRD unless: (1) "the claim is presented within 3 years after the date on which the injury and its connection with the discharge in question were reasonably discoverable with the exercise of due care" or (2) for NRD as defined by Section 1002(b)(2)(A), the date of completion of the natural resource damage assessment stipulated in Section 1006(e).
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