Oil Pollution Act and Inland Spill Cases

Regional Response and
Natural Resource
Damage Assessment
John Wegrzyn
U.S. Fish and Wildlife Service
Mountain-Prairie Region
Prepared for the EPA Region 8 Regional Response Team
October 15, 2014
Natural Resource Damage
Assessment and
Restoring natural resources harmed by releases of
hazardous materials and petroleum under the
Federal Superfund, Clean Water, and Oil Pollution Acts
in Fish & Wildlife Service Region 6
• Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980
• Section 111 (f)
• Sections 122 (f) and (j)
• Oil Pollution Act of 1990
• Section 1006
• Clean Water Act (1948, 1972)
• Section 311 (b) (1)
• Section 311 (f) (5)
• NRDAR Federal Regulations
• 43 CFR 11 (CERCLA & CWA)
• 15 CFR 990 (OPA)
Statutory Authorities for NRDAR
• CERCLA, §107 (f) (a) and (f)(2)(B)
“The President or the authorized representative of any State, shall
act on behalf of the public as trustee of such natural resources to
recover such damages.”
“The Governor of each State shall designate State officials …”
“Such State officials shall assess damages to natural resources … “
• OPA, § 1006 (b)(1), (3), and (4)
In general … “The President, or the authorized representative of any
State, Indian tribe, or foreign government shall act on behalf of the
public … “
“The Governor of each State shall designate State and local officials
who may act on behalf of the public as trustee …”
“The governing body of any Indian tribe shall designate tribal officials
who may act on behalf of the tribe or its members as trustee …”
What the NRDAR Process Does
The NRDAR process
determines nature and
extent of injury to Trustee
natural resources caused
by an oil spill or release of
a hazardous material.
Who Are Natural Resource Trustees?
 Federal Resource & Land Management Agencies
Department of the Interior
Department of Commerce
Department of Agriculture
Department of Defense
Department of Energy
 Federally Recognized Tribes
 State Governments – Governor delegates Trustees
In North Dakota, for example:
Department of Health
Game and Fish Department
Objectives for NRDAR
 “Restore, replace, rehabilitate, or acquire the
equivalent” of injured resources back to baseline.
 Coordination among Fed, State, Tribal Co-trustees:
 fundamental to successful claim resolution
 avoid double recovery
 achieve restoration
 The Public and Responsible Parties are involved in
the NRDAR process. - Civil … not criminal.
 Not punitive ; Trustees pursue RPs only for the
costs associated with damage assessment,
settlement or litigation, and NR restoration.
Major Concepts of the NRDA Process
NRDAR process: scientific, legal, and economic
 Science supports a contention of injury/harm.
 Legal case developed in conjunction with CERCLA,
OPA, CWA, and science.
 Economics supports tracking costs of completing
the process from damage assessment through
Following 43 CFR 11 and 15 CFR 990 is discretionary for
Natural Resource Trustees, but ….
By following the rules, Trustees gain “Rebuttable
Presumption;” important in settlement negotiations and
especially for litigation.
General Steps in the NRDAR Process
 Pre-assessment
 Assessment Planning:
 Injury Determination
 Injury Quantification
 Damages Calculation
 Settlement or Litigation
 Restoration of
resources, lost uses,
and services
Basis of Natural Resource Injuries
• Air
• Water
• Soil & Sediment
• Ground Water
• Biota (Plants & Animals)
• Sustaining Ecology
DOI trust NR are T&E species,
migratory birds, and
sustaining ecology for those
resources …
Biological Natural Resource Injuries
Injuries to Fish and Wildlife
 Death
 Disease
 Cancer
 Genetic
 Physical Deformities
 Behavioral Abnormalities
Basis for Restoration
Returning resources to the condition they
would have been in, if the oil or hazardous
substance exposure had never occurred.
Locating an alternative site that provides
suitable replacement for the lost resource,
services and uses.
Cooperative NRDAR activities
• Among Federal, State, and Tribal NR Trustees
• National Contingency Plan (NCP Part 300) provides for
Federal, State, and Tribal NR Trustees to cooperate and
coordinate their activities to avoid double recovery
• Among NR Trustees and RPs
• Trustees may conduct cooperative assessments with
RPs / PRPs
• Trustees attempt to notify RPs / PRPs and invite their
participation in assessing injury and damages
Public involvement
• Public participation requirements
• Public review and comment on Trustees proposed injury
assessment procedures
• Public review and comment on a draft plan to restore,
rehabilitate, or replace natural resources, lost uses, and
the services those injured natural resources provided
Settlements with damages
Damages from NRDAR cases are:
 Returned to the DOI’s, States’, or Tribes’
NRDAR funds to cover past costs and
support future case work
 Returned to the participating agencies to
cover direct and indirect costs
 Deposited in DOI’s NRDAR Fund, Court
Registry Accounts, or other Trustee Funds
for implementing restoration
NRDAR Scientist Knowledge Assets
• Knowledge, Skills, Abilities, and Expertise for NRDAR
• Fish and Wildlife
• Fish and wildlife biology / terrestrial and aquatic ecology
• Contaminants and Toxicology
• Environmental contaminants / toxicology and ecotoxicology
• Ecological risk assessment (probability of harm to plants and
• NRDAR Scientists
• NRDAR administrative, legal, technical process knowledge
• Conducting damage assessments
• Injury assessment (how to prove plants/animals are
• Design and implement natural resource restorations
U.S. Fish and Wildlife Service Regions
Mountain –Prairie Region
Enforcement Coordination
Among Feds, States, and Tribes
OPA Remedial Response
Feds: Navigable Waters of the U.S.
States: Beyond Navigable Waters
Tribes: Environmental Departments (spill response to permits)
Reservation Lands and where treaties and agreements go
OPA Natural Resource Damage Assessment and Restoration
Feds: Designated NR Trustee Agencies
States: One-to-many Trustee Agencies
Tribes: Environmental Departments
Enforcement & NRDAR
Municipalities, States, Tribes and Feds
• Municipals:
• Geography and Landscape
• State Coordination / Collaboration (NRDAR Issues)
• Pre-planning
• Tribes and States:
• Coordinate with Feds
• Local response authorities and unique issues
• Pre-planning; Participate in Regional Response Teams
• Feds:
• Regional Response Teams (States & Tribes)
• Sub-Area Contingency Plans; Actively Plan Revisions
• Outreach & Coordination with DOT on transport issues
Key Inland Considerations for OPA
• Mixtures: Petroleum and CERCLA-defined Hazmat
• Kicks most everything back to CERCLA
• Bakken Crudes
• Volatility
• Light – more stuff floats
• Overland transport / vulnerability
• Tar Sands DilBit
• Constituents sink
• Produced Water / Brines Spilled in Inland Environments
• Not covered under OPA
Bakken Crude – Physical Characteristics
(Transportation Safety Board of Canada, 2014; EPA Region 8, 2014)
(North Dakota Pipeline Authority. 2014; EPA Region 8. 2014)
Bakken Oil Transportation
Monthly Production
Pipeline Export
Rail Export
Rail Export
The Lac Megantic Fear Effect
• Increased Bakken Crude production
• Greatly Increased Bakken Crude transport: Rail, Barge, Pipelines
• Focal Points:
DOT 111 Rail Tanker Cars
First Responders – flammability, fire / BLEVE
Flammability, Improper Placarding
Partnering response with Natural Resource Trustee NRDARs
Transport loading issues and rail cars sitting at sidings
Freight Lines, Major Accidents, and
Some Crude-By-Rail Projects
( adaptedfrom EarthJustice, 2014)
Inland Spills
• Early Spring 2014 - Oil spill at Missouri-Yellowstone River Confluence
• Big River Flooding
Bath Tub Effect
• ESA Threatened and Endangered Species
• Pallid Sturgeon
• Least Tern
• Piping Plover
• Migratory Birds
• Producers
• Experienced
• Less Experienced
Produced Waters/Brines Spills
in Inland Environments
• Prairie Pothole Region wetlands
• Potential threats from produced water / brine spills from oil & gas ops.
• Produced Water / Brine spills not specifically covered under OPA
• Bakken Brine Threats:
• TDS at 100,000 – 380,000 ppm
(Iampen and Rostron, 2000)
• Destructive to vegetation
• Can deeply infiltrate mineral soils (> 5-10 m)
• Adverse impacts to soils (creates impermeable hard pan)
• Difficult to restore natural resources (ecologically destructive)
Inland Brine Spills
Extreme salinity invades
surface water and shallow
• Potentially extensive
environmental injuries to
aquatic, wetland, &
riparian habitats
• Negative impacts up and
down the food web: soils,
vegetation communities,
animals, fish, amphibians,
invertebrates, and
Summary Take Homes …
• Collaboration across administrative jurisdictions and with industry
• Pre-plan:
Participate in RRTs ….. Feds, Tribes, States, and Industry
Prevention & Contingency Planning …. Government and Industry
ID threats vs. important health, environmental, remedial assets
Remedial Response & NRDAR: Oil, Oil Mixtures, Produced Water/Brine
• Attributes of Oil vs. Produced Water/Brines on inland environments
• Oil: (Regulated under OPA while oil-hazmat mixtures under CERCLA)
• Floats or sinks; affects how to do emergency response in static/moving
• Potentially high volatility
• Transport: Rail, pipelines, marine, over-the-road
• Wide array of response & NRDAR strategies depending on situation
• Produced Water/Brines: (Not specifically regulated under OPA)
• High TDS (salt) very environmentally destructive
• Persists; difficult to restore natural resources, lost uses, and services