NRC Exec Blasts NRDA Guidelines For Baseline Recovery

Despite efforts to create non-punitive, restoration-oriented natural resource damage assessment (NRDA) guidelines, the National Oceanic & Atmospheric Administration (NOAA) is taking hits from oil spill interests as its newly approved guidelines go into effect. Speaking on trends in oil spill response on January 25, before an audience assembled by the Connecticut Maritime Association (CMA), Don Toenshoff, Jr., executive vice president of National Response Corporation (NRC), offered comment on the NRDA policy: "It basically says that if you are a R.P. — Responsible Party — you will pay ... One of the problems with NRDA is that you are basically guilty until you are proven innocent ...

You, the evil spiller, are supposed to tell everyone what you've done." Mr. Toenshoff pointed out perceived weaknesses in "contingency valuation," which is the method used to measure baseline assets of pre-spill environments, and unleashed his own guidelines for spill incident survival focused on restoring public opinion by establishing a positive working relationship with the U.S. Coast Guard (USCG).

Functioning in the restoration, rehabilitation, replacement or acquisition of equivalent natural resources and services in oil spill disaster areas, NRDA policy is a close cousin to OPA 90. In fact, natural resource damage assessment policy was created in order to real- ize the OPA goal of making the environment public and whole. (See MR/EN December 1995, p. 25, NOAA Prepares To Release Final OPA 90 Standards.) In 1994, NOAA published a set of proposed NRDA regulations in the Federal Register, which were criticized by many as being overly focused on punishing owners and operators. Targeted compensation formulas aimed at recovering damages from spill parties are notably absent from the new NRDA standards, which were enacted after being greenlighted by public approval. NRC "abstained from commenting on NRDA guidelines because we didn't want to appear self-serving," said Mr. Toenshoff, who added: "We felt it would be a conflict of interest." But how do you value the life of a seagull? As pointed out by the NRC executive, NRDA guidelines leave room for interpretation that literally grants NOAA the power to inflict financial ruin on R.P.s. "It asks the public ... What's the present value of loss of aquatic life for your children, grandchildren, generations on end?" said Mr. Toenshoff. And while the value of natural resources seems inherently unquantifiable, some say that contingency valuation places a price tag on the environment, and imposes an unreasonable "you break it, you bought it" policy on shipowners and operators. Alluding to a recent spill incident off the coast of Point Judith, R.I., Mr. Toenshoff discussed self-protective measures that can be taken by R.P.S in the event of a spill, in order to successfully direct cleanup efforts before authorities assume jurisdiction over a spill area. He said that the primary problem for owners is that after a spill occurs, USCG representatives are often met at the accident site by agents and lawyers instead of a spill response management team, which inevitably casts the R.P. in an unfavorable light. Accordingly, Mr. Toenshoff advised owners to "respond heavily and aggressively immediately," in order to command a favorable impression to the USCG, which "wants to see responsible management in a spill operation." He emphasized that owning companies should stockpile oil spill response equipment, and in the event of a spill, R.P.s should "go heavy upfront, and start sending equipment back that you don't use." Referring to the NRDA guidelines that allow R.P.S to be represented on the NOAA team that performs the contingency valuation, Mr. Toenshoff said: "The key here is to remember that if you are the R.P., to be a part of the NRDA process from the beginning." He also explained the importance of having friendly people working with the USCG, Environmental Protection Agency (EPA) and NOAA, warning, "If you are found not to have acted in good faith, you can be thrown off the team." As a final note, he added that R.P.S retain financial responsibility for damages incurred by spills, whether or not they participate in the injury assessment process.

Forecasting more changes for the oil spill response sector in the near future, Mr. Toenshoff used two examples to illustrate the tightening grip of oil spill regulations. Speaking to bulk operators, he said, "The OPA responsibility falls on you just as hard as if you were a tanker." And on a legislative note, he added, "We're starting to see an encroaching into the world of oil spills not just by the federal government, but by state governments."