Brief History of the CERCLA NRDAR Regulations
The passage of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), commonly known as Superfund, pre-dates the Natural Resource Damage Assessment and Restoration Program being established, but is inextricably entwined in its history. When CERCLA was enacted by Congress in 1980 it identified who trustees would be and defined natural resources. It also required the President to establish Natural Resource Damage Assessment (NRDA) regulations that identified best available procedures and standardized protocols for natural resource trustees to conduct assessments. CERCLA specified two types of procedures to be developed:
CERCLA mandates biennial review and revision, as appropriate, of the Natural Resource Damage Assessment regulations. The President delegated the NRDA rulemaking authority to the Secretary of the Department of the Interior. The Department's Office of Environmental Policy and Compliance (OEPC) was originally charged with establishing the NRDA regulations and formed an interdisciplinary team, to draft the regulations, final rules were issued for "Type B" in 1986 and "Type A" in 1987. The regulations went through a series of challenges and litigation over the years. The last revision was in 2008 and it was based on the recommendations of a Federal Advisory Committee.
OPA is Born
The Oil Pollution Act of 1990 (OPA) was passed in the wake of the March 1989 Exxon Valdez Oil Spill. The statute addressed oil pollution and established liability for the discharge and substantial threat of a discharge of oil into navigable waters of the U.S. In conjunction with CERCLA, it mandates a "National Oil and Hazardous Substances Pollution Contingency Plan (NCP) to provide organizational structure and procedures for preparing and responding to discharges of oil and releases of hazardous substances". The Oil Spill Liability Trust Fund, financed by a tax on oil was created for the US Coast Guard to clean up spills that the responsible party is incapable or unwilling to perform. Under this fund certain damage assessment and restoration activities can also be paid for. In 1990, NOAA was appropriated funds and delegated responsibility for developing regulations to implement OPA. On January 5, 1996 NOAA issued its final rule for the assessment of natural resource damages under OPA.
A DOI Program Evolves
In response to the Department's legislative and budget initiative, Congress passed the Interior and Related Agencies Appropriation Act of 1992, which created the DOI Restoration Fund and Program. The Department and Congress discussed the need to emphasize restoration and Congress added the "and Restoration" to NRDA during the committee of conference. In subsequent years there was much discussion about the management of the Program within Interior. The Program was subject to review by a "reinvention team" under then President Clinton's National Performance Review and several internal reviews.
In 1996, at the request of the Assistant Secretary of Policy Management and Budget (AS-PMB), the Deputy Assistant Secretaries (DAS) Group on Environmental Policy and Compliance convened the NRDAR Fund Task Force to develop a management framework for the NRDAR Program. The DAS Group recommended a corporate style management structure and in November 1997, the DAS-PMB announced the decision to implement the current corporate program management structure for NRDAR. A Program Office was to be housed in AS-PMB and was comprised of the following components: a Senior Executive Service Program Manager; an Executive Board with senior executives from involved bureaus and offices; establishment of the Work Group, comprised of working level contacts from the involved bureaus and offices; full time solicitor support; a fund manager, to be located in the Fish and Wildlife Service; regional coordinators and a regulation writer housed in the Office of Environmental Policy and Compliance; economist support from the Office of Policy Analysis and an internal process for resolving disputes.
The Program Manager officially started in November, 1997 and was responsible for coordinating with the DAS Group and Executive Board designates to: developing a Departmental Manual chapter on NRDAR authorities and responsibilities; approving allocation of funds for Program Management functions in FY 1998; and managing the first FY 1998 NRDAR Fund allocation. In September, 1998, negotiations by the DAS Group, Executive Board-designates, and Program Manager resulted in PMB's approval of 521 DM (Departmental Manual): Natural Resource Damage Assessment and Restoration. Chapter 1 provides authorities and policy, while Chapter 2 provides responsibilities and Chapter 3 provides the signatory authority for documents related to NRDAR activities.
Some structural changes have occurred since the Program's inception. The fund manager's position moved from the Fish and Wildlife Service to the Program Office in 1998. The "regulation writer" position originally housed in OEPC was moved under the Program Office in 2002 and was redefined as the Deputy Program Manager for Restoration. The regional coordinators, originally established under OEPC have moved under the direct supervision of the Program Office and since 2008, assist in the day-to-day operations of the Office. In addition, in 2005 the Restoration Support Unit was established in Denver under the supervision of the Program Office to support and assist Authorized Officials in implementing restoration. Finally in 2010 the Department upgraded the status of NRDAR from Program to Office and the name was changed to the Office of Restoration and Damage Assessment (ORDA). In 2011 the Departmental Manual was changed to reflect this status and name change and adopted some minor process changes.
The Restoration Program has evolved into a robust coordinated Departmental program with five bureaus: Fish and Wildlife Service, National Park Service, Bureau of Indian Affairs, Bureau of Land Management, and the Bureau of Reclamation; three Departmental offices: Office of Restoration and Damage Assessment, and the Office of Environmental Policy and Compliance; and the Solicitor's Office all working together. The U.S. Geological Survey provides technical support to the Program Office and to case teams. Cases are managed in the field by a Senior Executive "Authorized Official" who is generally at a Regional Director or Bureau State Director level. The AO represents the Secretary and hence all bureaus involved in a case. The Program continues to be managed by a small Departmental Office with significant input from all involved bureaus and offices and is accountable to an Executive Board comprised of senior executives from the various Bureaus and Offices.
In FY 2010 the Fund topped $1 billion in settlement receipts (including Exxon Valdez) and more importantly over 60% has been allocated for restoration.