Natural Resource Damages: Notification and Coordination Activities
EPA Policy and Procedure
EPA's policy is to encourage participation by all affected Trustees at every stage in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Oil Pollution Act (OPA) response and enforcement process. Coordination with Natural Resource Trustees will support addressing environmental impacts and may facilitate timely settlement of any, and all, liabilities. Through the exchange of information regarding site conditions and response action impacts, EPA and Trustees can provide for more efficient use of resources, reduce costs and reduce the time to reach final settlement. If natural resource liability is not resolved in connection with a settlement, and if there are residual injuries to natural resources after a CERCLA response, the Trustees may pursue a separate claim for NRD. Coordination activities also help Trustees identify actions that may trigger the Statute of Limitations for NRD actions.
EPA's Trustee notification and coordination efforts focus on sharing information to better protect public health and the environment.
EPA has entered into Memoranda of Understanding with some Trustees. These agreements specify the information to be provided at each stage of the Superfund response process. In particular, the MOUs delegate the notification and coordination duties within each agency and indicate the type of information to be shared and the period for providing the information.
Under the National Contingency Plan, Trustees are responsible for designating appropriate contacts to receive notifications [40 CFR §300.615(b)]. They provide this information to the Regional Response Teams. Trustees may provide technical assistance to the lead agency to prevent and/or minimize the risk of injury to natural resources from either releases of hazardous substances or discharges of oil. Trustees are also tasked with conducting preliminary surveys to determine if Trust Resources are, or potentially may be, affected; cooperating with EPA in coordinating assessments, investigations and planning; and carrying out Natural Resource Damage Assessments and restoration [40 CFR §300.615(c)].
CERCLA NRDA regulations provide that a Trustee should assist the lead response agency in identifying other Trustees whose resources might have been affected [43 CFR §11.20(c)]. The regulations also state that if there is a response activity at a site, the Trustees should coordinate their assessment with the lead response agency and document their coordination efforts in their Assessment Plan [43 CFR §§11.22(b), 11.23(f)(1), 11.31(a)(3)].
Statute of Limitations for Natural Resource Damage Claims
Under CERCLA Section 113(g)(1), with respect to National Priorities List sites, Federal Facilities and facilities at which a remedial action under CERCLA is otherwise scheduled, NRD actions must start within three years of the completion of the remedial action (excluding operation and maintenance). At all other sites, actions for NRD must begin within three years of the later of:
- The date of discovery of the loss and its connection to the release; or
- The date on which DOI NRDA regulations were promulgated.
For Tribal Trustees, the deadline for filing claims is the later of:
- The expiration of the otherwise applicable period of limitations; or
- Two years after the United States gives written notice to the governing body of the Tribe that it will not present a claim on behalf of the Tribe or fails to present a claim within the time limitations specified elsewhere in the statute [CERCLA §126(d)].
Under OPA Section 1017(f)(1), a claim for NRD must be filed within three years of the date of completion of an NRDA under OPA Section 1006(c).