The Natural Resource Damage Assessment Deskbook A Legal and Technical Analysis Valerie Ann Lee P.J. Bridgen & Environment International Ltd. ENVIRONMENTAL LAW INSTITUTE Washington, D.C.
The Comprehensive Environmental Response, Compensation, and Liability Act Page 23 For trustees with NRD claims, NPL listing is significant because the limitation period for bringing a claim for NRDs is dependent on whether or not a site is on the NPL. The statute of limitations for NRD actions is the later of three years from the date of discovery of the loss and its connection with the release or the date of promulgation of DOI regulations. 25 For sites on the NPL, it is three years from the completion of the remedial action. 26 Thus, listing can resurrect NRD claims moribund under the discovery rule. Indeed, two prominent NRD cases, thrown out of court on statute of limitations grounds, became the Lazarus of NRD claims when they were resurrected by inclusion of the areas of injury within NPL site boundaries. 27 The first involved DDT contamination in Los Angeles Harbor, and the second involved contamination from mining and smelting in the Coeur d Alene Basin in Idaho. Both cases involved tens of millions of dollars. Given the stakes, it is not a surprise that listing has become a major focal point for negotiations among responsible parties, EPA, and trustees in the context of developing NRD matters. 4.2.3 Response Actions Section 104 of CERCLA authorizes the president to take actions whenever there is a release or substantial threat of a release of hazardous substances. 28 These are called response actions. 29 Response actions are to be taken in a manner consistent with regulations known as the National Contingency Plan (NCP). 30 The NCP, originally promulgated under the Clean Water Act (CWA) 311, provides relatively detailed procedures for how to respond to, investigate, and remediate releases of hazardous substances under CERCLA. 31 Response actions are designed to assess, control, and remediate sources of contamination to protect human health and the environment. 32 Response actions are prospective in nature assess, control, and clean up today to prevent risk to health and environment tomorrow. Response actions are not designed to restore or compensate for ongoing natural resource injuries residual to cleanups or natural resource injuries that have occurred in the past, prior to cleanup. As explained in detail in Section 4.2.4, this is the role of NRDs. There are two kinds of response actions removal actions and remedial actions. 25. 42 U.S.C. 9613(g)(1), ELR Stat. CERCLA 113(g)(1). 26. See id. CERCLA s period calculated three years from the date of DOI s promulgation of the NRDA regulations has little current significance, given the date of promulgation of the regulations. See 42 U.S.C. 9613(g)(1), ELR Stat. CERCLA 113(g)(1). DOI regulations for streamlined assessments in marine environments (Type A regulations) were first promulgated on Mar. 20, 1987, and those for more complex assessments (Type B regulations) were first promulgated on Aug. 1, 1986, and made effective on Sept. 2, 1986. See 52 Fed. Reg. 9042 (1987) (Type A) and 51 Fed. Reg. 27674 (1986) (Type B). Both the Type A and B regulations were challenged; the D.C. Circuit Court struck down portions of both regulations, and the rules were remanded to DOI for changes consistent with the D.C. Circuit s holdings. See Colorado v. U.S. Dep t of the Interior, 880 F.2d 481, 19 ELR 21127 (D.C. Cir. 1989) (Type A), and Ohio v. U.S. Dep t of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989) (Type B). In March 1994, DOI promulgated revised Type B regulations conforming to the D.C. Circuit s direction. See 59 Fed. Reg. 14262 (1994). In May 1996, DOI promulgated revised Type A damage assessment regulations. See 61 Fed. Reg. 20560 (1996). Hence, a limitation period of three years from promulgation of the damage assessment regulations has little relevance. 27. See California v. Montrose Chem. Corp., 104 F.3d 1507, 27 ELR 20508 (9th Cir. 1997); United States v. ASARCO, Inc., 214 F.3d 1104, 30 ELR 20654 (9th Cir. 2000). 28. See 42 U.S.C. 9604(a)(1), ELR Stat. CERCLA 104(a)(1). The president (EPA) is also authorized to respond to releases or threatened releases of pollutants or contaminants that may present an imminent and substantial danger to the public health or welfare.... Id. 9604(a)(1), ELR Stat. CERCLA 104(a). Pollutants or contaminants can be anything that cause, or are anticipated to cause, either directly or indirectly, death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring.... Id. 9601(33), ELR Stat. CERCLA 101(33). 29. Id. 9601(25), ELR Stat. CERCLA 101(25). 30. See id. 9607(a)(4), ELR Stat. CERCLA 107(a)(4). There are two different standards for recovery of response costs under CERCLA. The government may recover all costs not inconsistent with the NCP, whereas private parties seeking to recover costs from third parties in contribution actions may recover only necessary costs of response consistent with the NCP. 31. The NCP, 40 C.F.R. Part 300, establishes procedures and requirements for response actions under the OPA and CWA 311, as well as for CERCLA. Most relevant for our purposes are the following subparts. Subpart B outlines the government agency roles and responsibilities for national and regional response under all three statutes. See 40 C.F.R. 300.100-.185. Subparts E and F address hazardous substance response under CERCLA. See also id. 300.400-.440, 300.500-.525. Subpart G concerns the designation of NRD trustees. See id. 300.600-.615. Subpart I pertains to the requirements for the administrative record pertaining to the selection of a response action, e.g., remedial action under CERCLA. See id. 300.800-.825. 32. See 42 U.S.C. 9604(a)(1), ELR Stat. CERCLA 104(a)(1).
Page 24 Natural Resource Damage Assessment Deskbook Removal Actions Removal actions, in general, are actions that occur over a relatively short period of time. Removal actions are used to move quickly to respond to an emergency situation. They also can be used to achieve complete cleanups in a short time frame. 33 However, removal actions drawing on the Superfund for financing are subject to time and dollar limits. In general, removal actions are not to exceed $2 million and may not take longer than 12 months. 34 Removal actions are subject to far less stringent requirements than remedial actions. There is more limited study and analysis of alternatives than that required for remedial actions. In addition, requirements concerning how to establish cleanup levels are less prescriptive. 35 There has been substantial litigation over whether or not a particular activity constitutes a removal action or a remedial action and, as a result, which requirements should apply. However, the case law has shown that there is no bright dividing line between the two types of actions. 36 Remedial Actions Remedial actions, in general, are undertaken at sites that are complex and take a much longer time to tackle than removal actions. 37 Remedial actions are designed to achieve a permanent remedy for contamination at a site. 38 Some remedial actions have taken decades to select and implement. 39 Remedial actions are subject to much more complicated and stringent requirements under CERCLA regarding investigation, analysis, and standards for cleanup than are removal actions. Remedial actions also involve more extensive public participation and procedures for involvement in the creation of an administrative record for the selection of the remedial action being implemented at a site. Only those sites that are on the NPL can receive financing from the Superfund for a remedial action. 40 The steps in the remedial action process are described with specificity in Chapter 11. In brief, however, the remedial action process is as follows. First, EPA conducts a preliminary assessment (PA), and then, if warranted, EPA performs a site inspection. Information from the PA and site inspection is used to determine whether or not a site should be considered for listing on the NPL. Second, information about the site is input into the HRS model to determine a site score. A site score of 28.5 or greater qualifies a site for listing. After notice and comment, a site is placed on the NPL. Third, once listed, EPA (or responsible parties) conducts a remedial investigation (RI) to determine the nature and extent of contamination. Fourth, EPA conducts a feasibility study (FS) and weighs alternatives for cleanup based on factors that CERCLA and the NCP require. Fifth, after notice and comment, EPA issues a record of decision (ROD). Once a ROD is issued, final design and construction can begin on the selected remedial action. 41 A summary chart of the remedial action process in found in Figure 4-2. As we discuss in Chapter 12, coordination of the remedial action process and NRDA in many instances can produce substantial benefits to potentially responsible parties and trustees. Much of the work that must be conducted in the RI, with proper design, can be very useful to the NRDA. Coordination avoids the pitfall of a potentially responsible party conducting studies once for EPA and then a second time for trustees 33. See 40 C.F.R. 300.415. 34. See id. 300.415(b)(5) (there are exceptions where the lead agency determines that there is an immediate risk to public health or welfare or where spending more is otherwise appropriate). 35. Compare 40 C.F.R. 300.415, with 40 C.F.R. 300.430. 36. See Jerry L. Anderson, Removal or Remedial?: The Myth of CERCLA s Two-Response System, 18 Colum. J. Envtl. L. 103 (1993). See also Tri- County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 992 (E.D. Pa. 1992) (summarizing case law surrounding the court s use of various factors to classify an action as removal or remedial). 37. 42 U.S.C. 9604, ELR Stat. CERCLA 104. 38. See 42 U.S.C. 9601(24), 9621(b), ELR Stat. CERCLA 101(24), 121(b). 39. Of the 1,313 sites currently listed on the NPL, more than two-thirds were originally listed prior to 1991. See, e.g., U.S. EPA, Commencement Bay Nearshore/Tide Flat, http://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=1000981 (last visited Nov. 8, 2012). See also U.S. EPA, Stringfellow, http://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0902680 (last visited Nov. 8, 2012); EPA, Klau/Buena Vista Mine (CA), http://www.epa.gov/superfund/sites/npl/nar1732.htm (last visited Nov. 8, 2012). 40. See 40 C.F.R. 300.425(b)(1). 41. See Chapter 12, for a more carefully explained and documented recitation of this process.
The Comprehensive Environmental Response, Compensation, and Liability Act Page 25 on substantially the same issues a costly endeavor. The level of cleanup in a remedial action also drives how much residual NRD there is at a site. Sometimes, it is better for responsible parties to pay more in cleanup expenses to avoid a big NRD tab that outstrips the incremental cost of the additional cleanup. As a result of the importance of the issue of whether and how to coordinate response actions with NRDAs, Chapter 12 provides a more detailed explanation of the remedial action process and the opportunities and challenges associated with response action-nrda coordination. Figure 4-2. Remedial Action Process Package Preliminary Assessment (PA)/ Site Inspection (SI) Results to NRDA 1. Preparation of Hazard Ranking System (HRS) 2. Consideration of HRS Package by EPA & States & Involved Tribes If EPA and State concur, list site on NPL (After concurrence and notice and comment) 3. Remedial Investigation (RI) Nature and extent of contamination Human Health Risk Assessment Ecological Risk Assessment } Establish cleanup levels based on risk and applicable or relevant and appropriate standards (ARARs) 4. Feasibility Study (FS) Consideration and Analysis of Remedial Action Alternatives Results to NRDA 5. EPA Record of Decision (Remedial Action Selected) Implementation of the Remedial Action e.g., control or minimize pollution cleanup or eliminate contamination Residual Injury to NRDA Negotiation and Settlement With Potentially Responsible Parties Section 122 of CERCLA contains a structure intended to encourage settlements and voluntary cleanups of sites by potentially responsible parties (PRPs). 42 EPA can choose to follow the process whenever EPA determines that a period of negotiation would facilitate PRPs undertaking a response. 43 This process is fre- 42. See 42 U.S.C. 9622, ELR Stat. CERCLA 122. 43. See id. 9622(e)(1), ELR Stat. CERCLA 122(e)(1).
Page 26 Natural Resource Damage Assessment Deskbook quently followed by communication by EPA to the PRPs. EPA provides a special notice letter to PRPs. 44 Once EPA sends a special notice letter, a period of negotiation is triggered under the statute. EPA cannot commence an RI or FS for 90 days. 45 Persons receiving a special notice letter have 60 days from the receipt of such letter to submit a good-faith proposal for undertaking or financing a response action at the site in question. 46 Also, it is often the case that responsible parties enter into a tolling agreement concerning NRD claims when contamination is discovered or when the parties are in the RI stage. 47 There are substantial numbers of EPA guidance documents that pertain to settlements. For instance, guidance documents include model consent decrees that EPA follows that have standard provisions, required by statute, that are nonnegotiable. It is beyond the scope of this deskbook to discuss the details of these guidance documents and the statutory requirements regarding reopeners in settlements and covenants not to sue. The important point for our purposes is that EPA is required to notify trustees for sites at which injury to natural resources may have occurred and to invite the trustees participation in negotiations. 48 In addition, the trustees can enter into settlements where the responsible parties agree to undertake appropriate actions necessary to protect and restore the natural resources damaged. 49 EPA has no authority to resolve potential NRD liability for trustees. It is often impractical to reach a global resolution of all CERCLA potential liability response cost and NRD at the early stage that a special notice letter represents. Opportunities and pitfalls in coordination of CERCLA response action activities and an NRDA are discussed in Chapter 12. 4.2.4 Natural Resource Damages The response action authority under CERCLA is primarily prospective in nature correct today to prevent risk to health and the environment tomorrow. Cleanups are not designed to correct past injuries to the environment and to restore the resource to baseline conditions. As such, with cleanups there will be residual damage to natural resources. The NRD provisions of CERCLA are designed to fill these gaps and make the public and the environment whole for past injuries, including those residual to cleanups. Section 107 of CERCLA allows recovery of damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss resulting from such a release. 50 Sums recovered by natural resource trustees for natural resources must be used only to restore, replace, or acquire the equivalent of such natural resources. 51 Nevertheless, CERCLA directs that damage recoveries shall not be limited by the sums which can be used to restore or replace injured resources. 52 CERCLA also provides that there shall be no double recovery of damages. 53 This provision, and the legislative history associated with it, makes clear that, in the case of trustees with concurrent authority, the trustees cannot each individually pursue claims for the same damages stemming from the same injury to the same natural resources. 54 The trustees must divide the pie rather than multiply it. The legislative history, 44. See id. 45. See id. 9622(e)(2)(A), ELR Stat. CERCLA 122(e)(2)(A). 46. See id. 9622(e)(2)(B), ELR Stat. CERCLA 122(e)(2)(B). 47. See, e.g., New Mexico v. General Electric Co., 467 F.3d 1223 (10th Cir. 2006) (General Electric). 48. See 42 U.S.C. 9622(j)(1), ELR Stat. CERCLA 122(j)(1). 49. See id. 9622(j)(2), ELR Stat. CERCLA 122(j)(2). 50. Id. 9607(a)(4)(C), ELR Stat. CERCLA 107(a)(4). 51. Id. 9607(f)(1), ELR Stat. CERCLA 107(f)(1). See Ohio v. U.S. Dep t of the Interior, 880 F.2d 432, 19 ELR 21099 (D.C. Cir. 1989). 52. Id. 53. 42 U.S.C. 9607(f)(1), ELR Stat. CERCLA 107(f)(1), provides: There shall be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource. 54. The Conference Report on this provision states: [T]he amendment to Section 107(f), assures that there is no double recovery for natural resource damages, including costs of damages assessment, restoration, rehabilitation, or acquisition in the case of injury to natural resources. These amendments are not intended to prohibit different claims or actions for different damages stemming from the same injury to the same natural resources. Nor are the amendments intended to affect the abilities of trustees to initiate or participate as co-claimants or co-plaintiffs where otherwise authorized to do so. H.R. Rep. No. 99-962 (1986), reprinted in 1986 U.S.C.C.A.N. 3314.
Page 100 Natural Resource Damage Assessment Deskbook Expedited Assessments Expedited assessments are conducted when: (1) the action is within exclusive involvement of NPS jurisdictions covered by NPSRPA; (2) injuries to resources are not otherwise threatened or critical; (3) assessments and determinations involve only moderate investigations and analyses; and (4) the primary and compensatory restoration measures can be readily identified and implemented. EQD/ERDAR has stated that examples of expedited assessments might include cases involving injuries to upland deciduous forest or native grassland habitats that do not contain threatened or endangered species. 29 Comprehensive Assessments A comprehensive assessment is typically conducted when: (1) there is involvement of OPA or CERCLA authorities or non-nps jurisdictions; (2) the injuries to resources are unusually sensitive or critical; (3) assessments or determinations require extensive investigations or analyses; (4) primary or compensatory restoration measures require significant research to identify or implement; and (5) there is involvement of novel or precedent-setting policy issues. EQD/ERDAR has indicated that this type might include Superfund sites, oil spills into navigable waters, or other situations requiring significant staff and funding. 30 Figure 8-1. NPSRPA Case Management Steps 31 Discovery of Incident 1. Preparation of the Claim Document claim in the Claim Incident Report Injury description Causal links to responsible party Response costs Damage assessment Costs 2. Request for Payment Signed by park superintendent Sent to responsible party Copies sent to EQD/ERDAR and SOL 3. Management of Recovered Damages Deposit recoveries in the DOI Restoration Fund Withdraw funds to implement restoration 4. Implementation of Restoration Plan and implement primary restoration Submit project completion report to EQD/EDRAR Relinquish excess funds to General Fund of the U.S. Treasury Response Notification Determine jurisdiction Implement response actions Begin cost tracking Prepare Response Quick Claims If Responsible Party Refuses Request for Payment, contact EQD/ ERDAR case officer for consideration of next step Case Classification Classification by ERDAR Coordination with ERDAR and SOL Assemble project and funding agreements Expedited Assessments & Comprehensive Assessments 1. Injury Assessment Begin compiling case file Injury determination Injury quantification Prepare Injury Assessment Report 2. Restoration Determination Selection of primary restoration Selection of compensatory restoration Prepare Restoration Determination Report 3. Claim Resolution Assemble claim (demand) Obtain approvals Resolution of damages (settlement/ litigation) Receive and deposit damages 4. Restoration Planning and Implementation Meet environmental compliance requirements Develop Restoration Plan Withdraw funds Implementation restoration 29. Id. 30. Id. 31. See id. at 10.
Federal Trustees Page 105 Figure 9-1. DARRP Offices and the States They Serve Region Office Locations Geographic Coverage Northwest Region Seattle, Wash. Alaska, Idaho, Oregon, and Washington Portland, Ore. Southwest Region Long Beach, Cal. California and Hawaii Great Lakes Region a Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin Northeast Region b Gloucester, Mass. Highlands, N.J. Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Virginia Southeast Region St. Petersburg, Fla. Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, Puerto Rico, South Carolina, and Texas a. The Great Lakes Region has jurisdiction over the portions of western New York and Pennsylvania that border Lake Ontario and Lake Erie, respectively. b. The Northeast Region has jurisdiction over the portions of western New York and Pennsylvania that are not within the boundaries of the Great Lakes Region. 9.3 U.S. Department of the Interior DOI has trusteeship over public lands including national parks, fish and wildlife refugees, and public lands managed by the Bureau of Land Management (BLM); Indian lands and natural resources held in trust by the federal government; waters managed by the Bureau of Reclamation (BOR); federally owned minerals; and protected plants and animals including endangered species, migratory birds and wild horses and burros. 7 Whereas DOC s focus is marine and coastal, DOI s focus tends more toward inland resources. However, this is not a hard and fast rule. There is overlap between the trusteeship of DOC and DOI in the areas of anadromous fish, migratory birds, and marine mammals. Table 9-1 shows roles of the services and bureaus of DOI. DOI established the Natural Resource Damage Assessment Restoration (NRDAR) Program to coordinate and provide guidance for NRDA activities among its different branches the National Park Service (Service), the U.S. Fish and Wildlife Service (FWS), BLM, BOR, and the Bureau of Indian Affairs (BIA). 8 7. U.S. DOI, The Natural Resource Damage Assessment and Restoration Program: An Introduction (July 28, 1999). 8. See U.S. DOI, Department Manual 112 DM 30 (Dec. 19, 2010), at www.doi.gov/restoration/upload/112dm30-organization.pdf.
Page 106 Natural Resource Damage Assessment Deskbook As compared to NOAA, DOI has a less robust program with far fewer personnel dedicated only to damage assessment. In addition, NRDA responsibility within DOI is devolved compared to that of DOC, with each branch acting as trustee for the natural resources and lands under its jurisdiction. 9 NRDA responsibilities are often handled within the district of the service or bureau in which an incident potentially causing NRDs occurred. For example, injuries to natural resources under the trusteeship of BLM are generally handled by the hazardous materials coordinator for the BLM district in which the incident occurred. 10 Similarly, contaminants specialists for FWS within the various regions often handle NRDA matters for their regions. National Park Service superintendents have the lead role for injuries to park resources, although there is a small national team within the Service dedicated to ensuring consistency in Service NRDA activities. Branch BIA BLM BOR FWS NPS Table 9-1. Roles of the Services and Bureaus of DOI Key Trust Resources Natural resources for which an Indian Tribe would otherwise act as trustee in those cases where the United States acts on behalf of the Indian Tribe All resources associated with public lands managed by BLM Minerals on or below BLM-managed land All resources located on waters managed by BOR Fish and wildlife refuges Migratory birds Endangered and threatened species Anadromous and inland fisheries Certain marine mammals All resources located within national park boundaries (natural and cultural resources and park property) FWS and NOAA frequently conduct NRDAs together as their management authorities tend to overlap. Nevertheless, their activities are reasonably well coordinated because there is little turnover in personnel in the two organizations, and they have a track record of working together. Regional offices of FWS are listed in Table 9-2. 9. Telephone Interview with Michael Campbell, Bureau of Land Management (Jan. 31, 2002). 10. Id. See also BLM, Natural Resource Damage Assessment and Restoration Handbook (Feb. 2008), at http://www.blm.gov/pgdata/etc/ medialib/blm/wo/information_resources_management/policy/blm_handbook.par.38115.file.dat/h-1703-3.pdf.
Federal Trustees Page 107 Table 9-2. U.S. Fish and Wildlife Service Regional Offices and the States They Serve Region Office Location Geographic Coverage Region 1 Pacific a Portland, Ore. Hawaii, Idaho, Oregon, Pacific Islands, and Washington Region 2 Southwest Albuquerque, N.M. Arizona, New Mexico, Oklahoma, and Texas Region 3 Great Lakes- Big Rivers Minneapolis, Minn. Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin Region 4 Southeast Atlanta, Ga. Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee, and U.S. Virgin Islands Region 5 Northeast Hadley, Mass. Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Virginia Region 6 Mountain-Prairie Lakewood, Colo. Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming Region 7 Alaska Anchorage, Alaska Alaska Region 8 Pacific Southwest Sacramento, Cal. California, Nevada, and the Klamath River Basin, Oregon Region 9 Headquarters Washington, D.C. Washington, D.C. a. Region 1 has jurisdiction over all of Oregon except the Klamath River Basin. Another office within DOI active in the NRDA area is BIA. The BIA is the primary federal land manager; it has 88 agency offices serving the 565 federally recognized Indian Tribes. 11 BIA is also the lead federal agency responsible for the protection of Indian trust assets, including natural resources on the reservation and on more than 55 million acres of land held in trust by the United States. For the benefit of Tribes and individual Indians, additionally, BIA has as a major goal the enhancement and protection of natural resources granted to Tribes via treaty with the United States. To accomplish its mission, BIA has developed an NRDA and restoration program. This program is located in the Office of Trust Services, Division of Environmental and Cultural Resources Management. The program is managed by the CERCLA Program Coordinator, who is also a member of DOI s Restora- 11. For a current list of federally recognized Tribes as of this writing, see Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 75 Fed. Reg. 60810 (Oct. 1, 2010); see also 75 Fed. Reg. 66214 (Oct. 27, 2010).
Federal Trustees Page 109 dinate NRDA within DOE and coordinates responses rulemakings by DOE and other trustees related to NRDA. 9.6 U.S. Department of Defense DOD has trusteeship for resources associated with lands and waters managed by DOD. The Secretary of Defense has designated trustee responsibilities to the head of each branch of the armed forces. 18 Like DOE, DOD is often, but not always, in the role of responsible party as well as trustee. The Environmental Restoration Program under the Office of Environmental Cleanup focuses on responding to and cleaning up historical and present releases of hazardous materials and oil spills in which DOD is both trustee and a potentially responsible party (PRP). The Defense Environmental Restoration Program (DERP) was established by Section 211 of the Superfund Amendments and Reauthorization Act (SARA) of 1986. 19 DERP applies to three different types of properties in the United States, District of Columbia, and U.S. territories. These include (1) active installations, which are bases where DOD conducts training and operations; 2) Base Realignment and Closure Commission (BRAC) installations, which are bases that have been identified for realignment or closure under one of the five congressionally approved BRAC rounds; and (3) Formerly Used Defense Site (FUDS) program properties, which are lands that were under DOD s jurisdiction but were transferred out of DOD control before SARA was signed on October 17, 1986. As of 2010, there were more than 34,000 facilities and sites under DERP. 20 Table 9-3. Summary of Federal Agency Trusteeship 21 Federal Agency Key Management Areas Key Trust Resources U.S. Department of Commerce (DOC) through National Oceanic and Atmospheric Administration (NOAA), including National Marine Fisheries Service (NMFS) Coastal environments, including salt marshes, tidal flats, estuaries, and other tidal wetlands; Natural resources managed or controlled by other federal agencies and that are found in, under, or using waters navigable by deep-draft vessels, or waters of the contiguous zone, the exclusive economic zone, and the outer continental shelf; Rivers or tributaries to rivers that historically support or currently support anadromous fish (fish that spend a portion of their lifetime in both fresh and salt water, e.g., salmon); and National marine sanctuaries and national estuarine research reserves Marine mammals pinnipeds and cetaceans; Marine fisheries; Anadromous fish, e.g., salmon; Threatened or endangered marine species listed by DOC; Resources of national marine sanctuaries; and Resources found in the coastal zone, including marshes, coral reefs, mangroves, and seagrass beds 18. U.S. DOD, Instruction 4715.7, Environmental Restoration Program (1996). 19. Pub. L. No. 99-499, 211, 100 Stat. 1625. SARA 211 amended CERCLA by adding the new chapter found at 42 U.S.C. 2701-07. See Office of the Deputy Under Secretary of Defense (Installations and Environment), Management Guidance for the Defense Environmental Restoration Program (2001). 20. U.S. DOD, Defense Environmental Restoration Program, Fiscal Year 2010 Annual Report to Congress (2011). 21. See 40 C.F.R. 300.600.
Federal Agency Key Management Areas Key Trust Resources U.S. Department of the Interior (DOI) through Bureau of Indian Affairs (BIA); Bureau of Land Management (BLM); Bureau of Mines (BOM); Bureau of Reclamation (BOR); U.S. Fish and Wildlife Service (FWS); Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE); National Park Service (NPS); and U.S. Geological Survey (USGS) National wildlife refuges and fish hatcheries; National parks and monuments and public rangelands; Wilderness areas; Water resources and reservoirs; Federal lands, including those lease resources of inland and terrestrial habitats; and Tribal resources, in cases where the U.S. acts on behalf of an Indian tribe Migratory birds; Anadromous fish; Marine mammals; Inland habitats and associated resources, e.g., birds and wildlife such as terrestrial mammals and reptiles; Species listed as threatened or endangered by DOI, including plants; Federally owned minerals; Resources of national park units and fish and wildlife refuges U.S. Department of Agriculture (USDA) through U.S. Forest Service; Natural Resources Conservation Service; and Conservation Reserve Program U.S. Department of Defense (DOD) U.S. Department of Energy (DOE) Federal rangeland; Federally managed fisheries; Federally owned or managed farmland; Land enrolled in the Wetlands Reserve Program; and National forestland Natural resources located on, over, or under land owned or managed by DOD, including the Army, Navy, Air Force, and Defense Logistics Agency, e.g., military bases and training facilities, research and development facilities, and munitions plants Natural resources located on, over, or under land managed by DOE, e.g., national research and development laboratories, facilities, and offices All natural resources located in, on, or under USDA-managed land All natural resources located in, on, or under DOD-managed land All natural resources located in, on, or under DOE-managed land Page 110 Natural Resource Damage Assessment Deskbook