CERCLA directed the Department of the Interior to prepare rules for Natural Resource Damage Assessments at hazardous waste sites and for emergency incidents involving CERCLA substances. OPA assigned rulemaking responsibility for oil spills to U.S. navigable waters to the National Oceanic and Atmospheric Administration. There are some differences between the OPA and CERCLA rules, but for the purposes of interface with response, these differences are minor.
NRDA process overview
- Preassessment is the only phase of NRDA likely to occur during emergency response.
For oil spills, preassessment activities may be funded as initiation of NRDA either by the responsible party or from the Oil Spill Liability Trust Fund. In the latter case, monies are allocated to the trustees by the National Pollution Funds Center through the Federal Lead Administrative Trustee [40 CFR300.305(e)].
The preassessment or initiation phase involves:
- Formal notification of trustees by the On-Scene Coordinator or RPM;
- Preliminary data collection and sampling primarily to preserve ephemeral information; and
- Determination of the likelihood of a successful damage claim--has an injury likely occurred, can it be tied to the incident, is there a viable responsible party, and will the cost of doing the assessment be less than the likely damages?
- Assessment Plan and Assessment Implementation phase (CERCLA) - Restoration Planning Phase (OPA)
- Confirm exposure of trust resource(s) to released/discharged material.
- Decide on assessment procedures to be used. The Department of the Interior (CERCLA) rule includes both a simplified method, called Type A assessments, and protocols for conducting assessments in individual cases, called Type B assessments. The OPA rule does not identify specific assessment procedures for trustees to use; instead, procedures must meet 15 CFR 990.27(a).
- Assess injuries to trust resources and services by first determining whether injury has occurred as a result of the discharge or release and then quantifying the injury.
- Determine appropriate restoration actions
- Post Assessment Phase (CERCLA) - Restoration Implementation Phase (OPA)
- Cooperation among Federal, State, and tribal trustees
The NCP provides for trustees to cooperate and coordinate their activities [40 CFR 615(a)]
One method for trustee coordination found in the NCP is the lead administrative trustee, who is to facilitate communication during response operations between the On-Scene Coordinator and other natural resource trustees.
The CERCLA and OPA NRDA rules also encourage coordination among trustees
- Cooperation between trustees and PRPs
Trustees may conduct assessments cooperatively with the responsible parties.
CERCLA Rule: Under 43 CFR 11.32(a)(2)(iii), trustees are required to notify all potentially responsible parties and invite their participation in development of the type and scope of the assessment and in the performance of the assessment.
The OPA rule [15 CFR 990.15(c)] is similar to the CERCLA rule.
Both CERCLA and OPA rules require opportunity for public review and comment on the draft restoration plan. The CERCLA rule also requires opportunity for public review and comment on the trustees' proposed injury assessment procedures.