|  Natural
Resource Restoration About
NRR
Frequently Asked Questions (FAQ)
Rev. 12/2006; Posted 19 December 2006
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The Questions
The Answers
Why is there a New Jersey
Department of Environmental Protection (NJDEP) Office of Natural
Resource Restoration (ONNR) and what is the goal of the program?
 Top
The State holds the natural resources of New Jersey in trust for
the benefit of its citizens. 1 It
is a fundamental concept that natural resources and natural resource
services provide not only the cornerstone of all life, but also
determine the quality of that life, for humans and all other species.
Discharges of hazardous substances and other pollutants may result
in injuries to these natural resources and natural resource services,
thereby impairing the important ecological and economic functions
they provide. The Office of Natural Resource Restoration was created
to address natural resource injuries.
The Department’s goal in implementing the
State's natural resource restoration program is to redress the
injuries resulting from hazardous discharges to natural resources
and the ecological and economic services they provide, through
the restoration of those natural resources and the compensation
of the economic and ecological losses for the citizens of NJ.
Notes:
- N.J.S.A.
58:10-23.11a.
What is the Department’s
legal authority and role in overseeing the investigation and restoration
of injured natural resources?
Top
The Department’s legal authority for the investigation and
restoration of injured natural resources is three-fold.
First, multiple New Jersey statutes establish
the Department's authority. The most important New Jersey statutes
which provide the Department with the authority to require the
investigation and restoration of injured natural resources include
the Department's enabling act 2, the
Water Pollution Control Act 3, the
Spill Compensation and Control Act 4,
the Industrial Site Recovery Act 5,
and the Brownfield and Contaminated Site Remediation Act 6.
More specifically, the definition of "remedial action"
under the Brownfield and Contaminated Site Remediation Act, and
the definition of "clean up and removal costs" under
the Spill Compensation and Control Act, are "sufficiently
broad to encompass the [Department’s] power to assess damages
caused to natural resources and to require remediation."
7 In addition, the Industrial Site
Recovery Act also "supports the [Department's] inclusion
of the natural resource damage issue in the remediation process."
8 Finally, "the investigation
and restoration of injured natural resources is incorporated into
the Brownfield [and Contaminated Site Remediation] Act."
9
Second, the common law provides the Department
with additional authority to require investigation and restoration
of injured natural resources. The public trust doctrine is an
example of the State's common law authority which develops through
individual court cases. 10 Under
this long-held doctrine, the State is responsible, as the trustee
of the state's natural resources, to manage these natural resources
for the benefit of the present and future citizens of New Jersey.
The State also has a fiduciary obligation to seek restitution
when any of the State’s natural resources are injured or
otherwise impaired as a result of a discharge. 11
This restitution is generally in the form of restoring the injured
natural resources and natural resource services.
Finally, several Federal statutes provide the
Department with additional authority to require the investigation
and restoration of injured natural resources. These federal statutes
include the Comprehensive Environmental Response, Compensation
and Liability Act 12, the Clean Water
Act 13, and the Oil Pollution Act
14.
Notes:
- N.J.S.A. 13:1D-9.
- N.J.S.A. 58:10A-1
et seq.
- N.J.S.A. 58:10-23.11a
et seq.
- N.J.S.A. 13:1K-6
et seq.
- N.J.S.A. 58:10B-1
et seq.
- New Jersey Site Remediation
Industry Network v. New Jersey Department of Environmental Protection,
Docket No. A-5272-97T3 slip op. at 21 (App. Div., April 17,
2000) (per curiam) cert. denied 165 N.J. 528
(2000).
- New Jersey Site Remediation
Industry Network v. New Jersey Department of Environmental Protection,
Docket No. A-5272-97T3 slip op. at 21 (App. Div., April 17,
2000) (per curiam) cert. denied 165 N.J. 528
(2000).
- New Jersey Site Remediation
Industry Network v. New Jersey Department of Environmental Protection,
Docket No. A-5272-97T3 slip op. at 29 (App. Div., April 17,
2000) (per curiam) cert. denied 165 N.J. 528
(2000).
- See, for example, Arnold
v. Mundy, 6 N.J.L. 1 (1821).
- See, State v. Jersey Cent.
Power & Light Co., 125 N.J. Super.
97 (1973), aff'd., 133 N.J. Super. 375 (App.
Div. 1975), rev'd. on other grounds, 68 N.J.
161 (1976).
- 42 U.S.C.
9601 et seq.
- 33 U.S.C. 1301
et seq.
- 33 U.S.C. 2701
et seq.
What regulations pertain
to the investigation of injured natural resources?
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The Technical Requirements for Site Remediation,
N.J.A.C. 7:26E, provide regulatory guidance on the investigation
of injured natural resources.
What
steps are necessary to characterize natural resource injuries?
Top
The process to characterize natural resource injuries is incorporated
in the Department’s existing remedial investigation activities
required for remediation which utilize the Technical
Requirements for Site Remediation. The characterization is
completed during the remedial investigation, which is overseen
by the Site Remediation Program.
Characterization of natural resource injuries
falls into two categories: ecological
injury and ground
water injury. Both categories need to be evaluated
for natural resource injuries and are part of the remedial investigation.
(N.J.A.C. 7:26E – 4)
Top
Ecological Injury
As per the Technical Requirements for Site Remediation 15,
the characterization of ecological natural resource injuries is
a two-step process -- a baseline
ecological evaluation and an ecological
risk assessment -- described in more detail in the
following paragraphs:
a. What is
a baseline ecological evaluation?
A critical part of every site investigation is
the baseline ecological evaluation required in N.J.A.C. 7:26E-3.11.16
The Technical Requirements for Site Remediation require each person
conducting the remediation of a contaminated site or area of concern
to conduct a baseline ecological evaluation as part of the process
to ensure that the resulting remedy is protective of the environment.
The Department uses the information that the person is already
required to collect in the baseline ecological evaluation as the
first step in determining whether or not natural resource injuries
potentially exist as a result of a discharge at a site. In the
baseline ecological evaluation, the person responsible for conducting
the remediation must determine whether or not any natural resources
may have been injured by a discharge. A determination is based
upon the following criteria:
- the presence of a contaminant of ecological concern that exists
at the site;
- the presence of an environmentally sensitive natural resource
at or near the site; and
- a pathway that would link the contaminant of ecological concern
with the environmentally sensitive natural resource.
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b. What are contaminants
of ecological concern?
Contaminants of ecological
concern include those contaminants that exhibit the ability
to biomagnify or bioaccumulate, as well as contaminants with concentrations
that exceed the applicable standards or guidelines recommended
by the Department, the National Oceanic and Atmospheric Administration,
the U.S. Environmental Protection Agency or other Federal natural
resource agencies. The Department has outlined some of the references
that may be used in the identification of the contaminants of
ecological concern for specific environmental media at N.J.A.C.
7:26E-3.11(a)1.
Top
c. What are environmentally
sensitive natural resources?
Environmentally sensitive natural resources means
all areas defined at N.J.A.C. 7:1E-1.8(a), ground water, and areas
and/or resources that are protected or managed pursuant to the
Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. and the Pinelands
Comprehensive Management Plan, N.J.A.C. 7:50.
Top
d. What is a contamination
pathway?
A contamination pathway is the link between the
contaminant of ecological concern in the environment and an environmentally
sensitive natural resource. It is through this pathway that the
contamination from a discharge could move from the point of discharge
to the environmentally sensitive natural resource. An example
of a contamination pathway is ground water, which can serve as
a mechanism for hazardous substances to move from the point of
a discharge on the land surface to surface water.
Top
e. What happens if all three
of these criteria are met?
If it is determined through the baseline ecological
evaluation that there is a contaminant of ecological concern present,
that there is an environmentally sensitive natural resource at
or near the site, and that there is
a pathway from the contamination to the environmentally sensitive
natural resource, then that person must conduct an ecological
risk assessment pursuant to the Technical Requirements for Site
Remediation.17
Top
f. What is an ecological
risk assessment?
An ecological risk assessment is a process through
which the person responsible for conducting the remediation evaluates
the likelihood that adverse ecological effects to natural resources
have occurred, are occurring or may occur, as a result of a discharge.
These adverse ecological effects are the result of any physical,
chemical, or biological mechanism that can induce an adverse ecological
response. Adverse ecological responses can range from sublethal
chronic effects in an individual organism to a loss of ecosystem
function.18 Similar to the baseline
ecological evaluations discussed above, ecological risk assessments
are described in the Technical Requirements for Site Remediation.19
In addition to using the ecological risk assessments to ensure
that the remedy is protective of the environment, the Department
uses the ecological risk assessment to identify and characterize
the injuries to natural resources and natural resource services.
Often, the results of the ecological risk assessment can be used
to provide the scope of the restoration necessary to compensate
for the injury. In cases where the environmental risk assessment
does not provide sufficient information to develop appropriate
restoration, the Department will work with the person conducting
the remediation to collect necessary additional data to do so.
Top
Ground Water Injury
Ground water injury is characterized in the remedial
investigation through the delineation of the horizontal and vertical
extent of the ground water contamination.
Notes:
- N.J.A.C. 7:26E-1 et
seq
- Except that a baseline ecological evaluation
is not required at any area of concern that consists of an underground
storage tank storing heating oil for on-site consumption in
a one to four family residential building. See, N.J.S.A.
58:10B-12a.
- N.J.A.C. 7:26E-4.7.
- U.S. EPA, "Ecological Risk Assessment
Guidance for Superfund." September 1994.
- N.J.A.C. 7:26E-4.7
How does the Department
manage the oversight of the various phases of natural resource
injury characterization and restoration?
Top
The Department’s Site Remediation
Program oversees the identification and characterization of
injured natural resources as part of the site investigation and
remedial investigation of a contaminated site.
Upon completion of the remedial investigation,
the Site Remediation Program will consult with the Office of Natural
Resource Restoration if the investigation reveals ground water
contamination or the presence of ecological risk. The Office of
Natural Resource Restoration will oversee the characterization
of the injury and the selection of the appropriate restoration.
Whenever injured natural resources are restored concurrent with
other remedial actions, the Office of Natural Resource Restoration
is involved. The Office of Natural Resource Restoration has the
lead for all natural resource restoration that is implemented
independent of the other remedial actions for the site.
Do the Technical
Requirements for Site Remediation require that an evaluation of
natural resource injuries be completed on all cases prior to the
issuance of a no further action letter?
Top
Yes, the Technical
Requirements for Site Remediation requires that an evaluation
of natural resource injuries, precede the Site Remediation Program’s
issuance of a no
further action letter except as provided below:
- a baseline ecological evaluation is not required at any area
of concern that consists of an underground storage tank storing
heating oil for on-site consumption in a one to four family
residential building. See, N.J.S.A. 58:10B-12a.
- Soil areas of concern where a baseline ecological evaluation
and an ecological risk assessment (if necessary) are completed
and indicate no ecological injury will be issued no further
action letters. (For soil areas of concern that indicate there
is potential for ecological injury, or if the ecological investigation
is not completed, the Department will issue a no further action
with a reservation of rights to pursue natural resource injury).
How is the information
from the remedial investigation used to assess natural resource
injury and determine the scope of the restoration?
Top
The scope of the restoration is based on the information that
is gathered during the assessment stage. Natural Resource injuries
are assessed for both ground water and ecological resources as
follows:
a) groundwater
Injury to groundwater resources is solely the
responsibility of the State. The Department uses the ground
water injury calculation developed and applied by the Office
of Natural Resource Restoration. This formula incorporates plume
size, duration of injury, groundwater recharge rates and water
rates in order to derive a monetary value (damages) for injuries
to ground water resources of the State. The resulting surrogate
value is then used to determine the appropriate scale of the restoration
project.
b)ecological resources
For natural resource injuries other than to groundwater,
such as wetlands, wildlife, surface water and human use injuries
(as in the closure of a waterway to fishing or beach access),
the process involves collecting, compiling and analyzing information,
statistics, or data to make a determination of the extent of the
injuries to natural resources resulting from discharges of oil,
releases of hazardous substances, or physical injury due to remedial
activities. The Department considers applying methods accepted
by Federal and State trustees on a case by case basis. The Office
of Natural Resource Restoration works with Federal Trustees to
determine the extent of the injury and the appropriate restoration
to compensate for the injury.
Where does
the money (damages) go that the State collects for natural resource
injuries?
Top
Money collected for natural resource injuries is known as Natural
Resource Damages (NRD). These monies are appropriated to case
specific or watershed management area accounts in the Hazardous
Discharge Site Remediation Fund (HDSRF) and are used to perform
restoration projects. The HDSRF, which is administered by the
Department, is maintained separately from the State’s General
Treasury Fund.
What are some ways that
natural resources may be restored?
Top
There are various means in which a person responsible for conducting
the remediation may compensate the citizens of New Jersey for
natural resource injuries. Depending on the injury, the Office
of Natural Resource Restoration encourages responsible parties
to restore the resources and services that are lost. For all claims,
the Department’s preference is for performance of restoration
work and resource protection in lieu of payment of money (damages),
provided that reasonable allowance is made for monitoring and
oversight to ensure accountability and effectiveness of restoration.
For example, if as part of a remedial activity, wetlands are injured,
the person responsible for conducting the remediation may propose
to create wetlands/habitat in the appropriate ratios to compensate
for the functions and services lost.
Other restoration may include acquisition of land
for aquifer recharge, reforestation and/or removal of impervious
surfaces to improve infiltration and water retention, non-point
source pollution abatement projects, enhanced public access, and
information and interpretive projects to compensate for lost public
use and natural resource services. Restoration projects must have
a nexus to the injured resource and should be in the same watershed
or subwatershed to the extent practicable.
When do the
Federal Natural Resource Trustees become involved in coordinating
the necessary assessment and restoration of natural resource damages?
Top
The Office of Natural Resource Restoration, as the State’s
natural resource trustee representative
for the Commissioner of NJDEP, is a co-trustee with designated
Federal Natural Resource Trustee agencies under Federal law. The
trustee agencies that the Office of Natural Resource Restoration
most frequently interacts with are the U.S. Fish and Wildlife
Service and the National Oceanic and Atmospheric Administration.
When natural resources under their authority are also impacted,
the Trustees can participate in assisting with the identification
of natural resources injured, determining the extent of the injuries,
recovering compensatory restoration and damages from those responsible,
and carrying out natural resource restoration activities.
Does the Department
pursue natural resource damages against homeowners?
Top
No, the Department does not pursue homeowners, at their place
of residence, for restoration of natural resources injured by
hazardous discharges. The Department may, however, pursue other
persons responsible for the hazardous substances that were discharged
at a residential site, including, without limitation, suppliers
of the hazardous substances, such as fuel oil and heating oil,
that are discharged at a residence, and persons that transported
the hazardous substance to that residence.
[End of the ONRR FAQ]
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