Integration of Natural Resource Injury Assessment & Restoration into the Site Remediation Process

By: Linda Grayson
Bureau of State Case Management, and

Barbara Dietz and Ernie Hahn
Office of Natural Resource Damages

The Office of Natural Resource Damages (ONRD), formed in 1993, is part of the Natural and Historic Resources Program. The mission of ONRD is to ensure that the public's natural resources, injured by oil spills or the discharge of hazardous substances, are restored in a way which adequately compensates the public for the injury to or loss of their natural resources.

Over the past year, the Office of Natural Resource Damages (ONRD), the Site Remediation Program (SRP) and the Division of Law have been working to develop procedures to more fully integrate natural resource injury assessment and restoration into the site cleanup process. (The final details are currently being worked out.) The Department wants to take this opportunity to provide an overview of how the issue of natural resource injuries will be integrated into the site remediation process.

The NJDEP is the designated trustee for New Jersey's natural resources. ONRD, through the Office of Natural Resources Program, represents the Commissioner on natural resource assessment and restoration issues. The Department's general authority for the investigation and restoration of resource injury is threefold:

First, and most importantly, the following New Jersey statutes which provide this authority include; the Department's enabling Act, the Water Pollution Control Act, the Spill Compensation and Control Act, the Industrial Site Recovery Act and the Brownfield and Contaminated Site Remediation Act. These statutes were among the statutes that the Department cited as its authority for its Technical Requirements for Site Remediation. ("Technical Regulations", N.J.A.C. 7:26E)

Second, common law provides additional authority for recovery of natural resource damages, particularly the State's quasi-sovereign and public trust interests in natural resources. The premise for natural resource damage provi-sions is a body of a law known as the Public Trust Doctrine.

Finally, the Department has the authority to pursue natural resource damages under several federal statutes, including the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act and the Oil Pollution Act of 1990. While these statutes do not

provide the Department with authority for its regulations concerning natural resource injuries, they do provide alternate legal remedies for the State.

The Department's Technical Regulations define the investigative process that a party conducting remediation must take in order to assess whether a discharge has impacted or has the potential to impact natural resources. The first step in the process is a baseline ecological evaluation. If the baseline ecological evaluation indicates that contaminants of ecological concern exist on site and a pathway to a sensitive environment exists, an ecological risk assessment must be conducted. Upon completion of the ecological risk assessment, all data needed for the development of a restoration plan should be available. When past impacts to natural resources are evident or when the ecological assessment indicates that an injury to natural resources has occurred, the SRP case manager will involve an ONRD staff member. The role of ONRD will be to oversee the restoration and coordinate with the federal natural resource trustees, when necessary.

Typically, the Department prefers that the responsible parties conduct natural resource restoration projects (i.e. enhancement or conservation projects) to compensate the public for natural resource injuries as opposed to cash settlements. Often, restoration implemented by the responsible parties can be accomplished in a more timely and cost effective manner, thus restoring the public's resources sooner. When restoration is implemented as part of the remedy, ONRD will act as a case team member to facilitate implementation of the restoration plan. However, when a party conducting remediation chooses to "cash out," or when the remediation is too far along to incorporate restoration aspects, the ONRD will manage the restoration aspects separately from the rest of the remediation.

Criteria for when SRP case managers should involve the ONRD are being developed. For example, the Department has determined that it will not pursue damages for injuries to ground water where the contaminant is not expected to move beyond the property where the discharge occurred, provided that contaminated ground water has not impacted other resources on site such as surface water or wetlands. Additional criteria are being considered, such as duration of injury and size of plume, which may further limit the types of cases that the Department pursues.

No Further Action letters issued by the SRP will include language that indicates the status of natural resource injuries for sites where they have been determined to exist. Specifically, if restoration has been completed, the NFA letter will indicate that no additional obligation remains including natural resource damages. With the Department's approval a party may bifurcate restoration from the rest of remediation by committing to conduct restoration at a later date under an existing Administrative Consent Order or Remediation Agreement, or through the execution of a Restoration Agreement. A remediation funding source must be established in an amount equal to the value of the restor-ation project. This commitment will be memorialized in a conditional NFA letter, and the letter will specify that this condition of the NFA is not an obligation of successive owners.

Financial assistance is available to parties conducting remediation from the Hazardous Discharge Site Remediation Fund or the UST Fund. However, the use of these funding sources for restoration is limited to restoration which occurs as part of remedy implementation; funding made available through loans and grants may not be utilized to offset damages being settled through "cash outs" or offsite restoration projects such as property purchase.

The information contained herein is intended to be a broad overview of the various issues considered during the Department's efforts to more fully integrate assessment and restoration of natural resource injuries into the established process of site remediation as seamlessly as possible. Documents to guide the process are in final draft with distribution for comment and use expected by the end of December. Tools to facilitate implementation (such as shell letters, tracking systems, referral forms, implementation plans, etc.) have been or are being developed.