7 Del. Admin. Code § 1375-14.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1375-14.0 - Natural Resource Damage Assessment and Restoration

14.1 Purpose and Applicability

14.1.1 To ensure comprehensive assessment of injuries or losses to natural resources and natural resource services resulting from a release of hazardous substances or results from required actions to prevent, mitigate, or remedy such a release.

14.1.2 To ensure restoration, replacement, or compensation for all lost or injured natural resources and natural resource services resulting from the release of a hazardous substance, or required actions to prevent, mitigate, or remedy such a release, that would not otherwise be restored or replaced as part of any remedial action.

14.1.3 A Certified Brownfields Developer that does not cause or contribute to a release related to the Certified Brownfield is not liable for natural resource damage assessment and restoration costs related to the release at the brownfield property, and such Certified Brownfields Developer shall not be subject to or limited by any other provision of these Regulations relating solely to natural resource damages.

14.2 Restoration, Replacement, and Compensation

14.2.1 The Department may require restoration, replacement and/or compensation for lost or injured natural resources and natural resource services. Restoration, replacement and compensation may include costs of monitoring, maintenance, and/or corrective activities necessary to sustain the restoration project in perpetuity.

14.2.1.1 The Department may require the restoration of an injured resource as nearly as practicable to its baseline condition. The baseline condition shall be determined in terms of the injured resource's physical, chemical, and biological properties or the services it provided prior to the release.

14.2.1.2 The Department may require replacement or acquisition of the equivalent of any injured natural resource or natural resource service.

14.2.1.3 The Department may require compensation for an injury to natural resources and natural resource services, including compensation for lost uses or services during the entire period prior to re-attainment of the baseline condition. If any restoration or replacement efforts ultimately fail, the Department may require compensation for any periods after such failure, until baseline conditions are restored.

14.2.2 The Department may recover all the Department's costs of performing the natural resource damage pre-assessment, assessment, and post-assessment.

14.3 Agreements with other Persons

14.3.1 The Department may enter into agreements with persons for the assessment, restoration, replacement, and/or compensation for damages to natural resources and natural resource services. These agreements include:

14.3.1.1 Cooperative Assessments

14.3.1.1.1 Cooperative assessments are performed by the Department and other persons to jointly assess damages to natural resources and/or natural resource services.

14.3.1.1.2 Agreements for cooperative assessments with a person may include a provision obligating the person to pay the Department's costs of assessment on a periodic basis while the assessment is in progress.

14.3.1.2 Restoration in Anticipation of Unquantified Claims

14.3.1.2.1 The Department may elect to enter into an agreement with a person to allow the person to conduct restoration at a site, with oversight by the Department, before a damage assessment is completed. Upon completion of the restoration work, as approved by the Department, the Department may grant credit to the person to offset all or a portion of the person's liability for the natural resource damage at the site.

14.3.1.2.2 The Department may permit a credit granted to a person for restoration at a site or sites to be used to offset the person's liability at other sites in Delaware or at sites outside the State which have injured Delaware's trust resources.

14.4 Pre-Assessment Phase

14.4.1 Upon identification of a release or threat of a release of a hazardous substance, the Department may conduct a preliminary review to determine whether there are any natural resources affected or potentially affected by the release or threat of release. Upon finding that a release of a hazardous substance may injure, or may have injured, trust resources of the State, the Department may conduct, either alone or in cooperation with trustee agencies of the Federal government, tribes, or other states:

14.4.1.1 A pre-assessment screen to determine whether the release justifies a natural resource damage assessment;

14.4.1.2 Sampling and data collection for the purpose of obtaining evidence which would otherwise be lost; or

14.4.1.3 Emergency response activities to the extent the Department deems appropriate to prevent or reduce actual or potential injuries to natural resources.

14.4.2 Pre-Assessment Screen

14.4.2.1 The pre-assessment screen includes a review of existing information, preliminary identification of natural resources potentially at risk, sampling, preliminary identification of the substances released, preliminary identification of pathways of exposure, and costs of performing an assessment.

14.4.2.2 Based on information gathered pursuant to the pre-assessment screen, the Department may make a preliminary determination that the following criteria are substantially met before proceeding with an assessment:

14.4.2.2.1 A release of a hazardous substance has occurred or may occur:

14.4.2.2.2 Natural resources for which the State may assert trusteeship have been or are likely to have been adversely affected by the release or potential release;

14.4.2.2.3 The quantity and concentration of the released or potentially released hazardous substances is potentially sufficient to cause injury to those natural resources;

14.4.2.2.4 Data sufficient to pursue an assessment are readily available or likely to be obtained at reasonable cost; or

14.4.2.2.5 Remedial actions, if any, carried out or planned, do not or will not sufficiently remedy the injury to natural resources without further action.

14.5 Assessment Phase

14.5.1 If a damage assessment is determined to be appropriate in the pre-assessment phase, the Department, alone or in conjunction with other Trustees or PRPs, may develop a damage assessment plan. Assessments may be conducted using the procedures outlined in 43 CFR Part 11, as amended, or by other procedures determined to be appropriate by the Department. The damage assessment plan may be incorporated into the remedial investigation work plan.

14.5.2 The assessment is conducted in the following three stages: injury determination, quantification, and damage determination.

14.5.2.1 Injury Determination: This determines whether an injury to one or more natural resources or natural resource services may have occurred, and whether the injury may have resulted from the release of a hazardous substance.

14.5.2.2 Quantification: If it is determined that there may be an injury to a natural resource or natural resource service, the magnitude of the injury may be evaluated.

14.5.2.3 Damage Determination: This determines the damages resulting from the release of a hazardous substance based upon the information provided in the injury determination and quantification stages. Restoration Valuation, and one or both of the additional valuation approaches outlined below, may be used in the Damage Determination.

14.5.2.3.1 Restoration Valuation: This methodology consists of damage estimation based on restoration or replacement of the injured natural resource due to the release of a hazardous substance. An evaluation of restoration alternatives may be conducted. The evaluation considers a range of actions to restore the injured services over various recovery periods, and may include a "no-action" or natural recovery alternative. The expected net present value of each restoration alternative shall be determined; and

14.5.2.3.2 Use Value Valuation: These methodologies consist of damage estimations based on the reduction of use values, including hiking, fishing, hunting, boating, or camping. The use values of the injured resource may be estimated by using approaches specified by the Department; and/or

14.5.2.3.3 Nonuse Value Valuation: These methodologies consist of damage estimations based on the reduction of nonuse values, including aesthetics. The nonuse values of the injured resource may be estimated by using approaches specified by the Department.

14.5.3 The results of an assessment performed by other persons shall be submitted to the Department for its approval.

14.6 Post-Assessment Phase

14.6.1 Upon completion of the assessment, the Department may, as appropriate:

14.6.1.1 Require persons to provide compensation for the injury to natural resources and natural resource services;

14.6.1.2 Seek compensation from an appropriate trust fund;

14.6.1.3 Select an appropriate restoration alternative pursuant to 14.6.2;

14.6.1.4 Develop, or require a person to develop, a restoration plan. The plan describes the specific actions to be taken to restore, replace, and/or provide compensation for the injured natural resources and natural resource services;

14.6.1.5 Implement, or require a person to implement, the approved restoration plan;

14.6.1.6 Recover its costs for assessment, restoration planning, restoration, and post-restoration activities from a person or appropriate trust fund.

14.6.2 In the evaluation of restoration alternatives, the Department may:

14.6.2.1 Consider whether the proposed restoration projects serve to restore, replace, or acquire the equivalent of the natural resources and natural resource services injured as a result of the subject releases; or

14.6.2.2 Consider projects benefitting the watershed, aquifer, populations, or species injured, and projects benefitting other watersheds, aquifers, populations, or species. Preference may be given to projects that benefit the affected watershed, aquifer, populations, or species.

7 Del. Admin. Code § 1375-14.0

5 DE Reg. 1618 (02/01/02)
16 DE Reg. 218 (08/01/12)
22 DE Reg. 781 (3/1/2019) (Final)