adjudicating mystery spills, a natural resource damage claims case ...

warm temperature, most evaporation of volatile and certain semivolatile
constituents—such as monoaromatic hydrocarbons
(MAH) and certain lower molecular weight PAH—occurred
within the first 16 hours of the spill incident. Due to warm ambient
air and water temperatures, it is likely that oil weathering proceeded
rapidly and that the oil contained significant PAH concentrations
at the time of the spill (French McCay et al., 2001).
Trustees characterized the spilled oil as an Intermediate Fuel Oil
(IFO), sometimes referred as a Number 5 Fuel Oil. Since the percentage
of semivolatile and volatile polyaromatic hydrocarbons
(PAH) and monoaromatic hydrocarbons (MAH) have a material
effect on toxicity in the SIMAP model used to determine impacts
to biota in the FLMS claim, claimants needed to determine more
specifically the concentrations of these constituents, especially the
PAHs. Because a source oil sample was not available to provide a
more quantitative PAH analysis for a No. 5 (intermediate) fuel oil,
claimants used a surrogate PAH fraction as determined from a
recent spill of a mix of No. 6 and No. 2 fuel from the PEPCO
pipeline in Maryland (into the Patuxent River, April 2000). That
source oil contained 3.3% PAH with log(Kow)≤5.6, which are the
acutely toxic components (French McCay et al., 2001). Thus, a
PAH content of 3.3% was used in the FLMS model runs.
Spill Volume: The monoaromatic oil components (benzenes,
xylenes and toluenes also known as BTEX) were not measured
in the source oil for either FLMS or the PEPCO spill, but are
assumed to have negligible impact on water column organisms
because of its high volatility (French McCay et al., 2001). The
oil volume that came ashorewas estimated by Zengel (2000) to be
approximately 15,000 gallons based on observations of amount of
oil on each beach segment. Zengel’s estimates were corrected for
the volatile and semi-volatile content (3.3% PAH + 23.4% other
volatile hydrocarbons), resulting in a volume estimate of 20,456
gallons. Assuming the Gulf Stream velocity estimated by NOAA
NRDA personnel on scene during the clean-up and using wind
data for the days preceding the oil stranding, the discharge location
was likely southeast of the most heavily oiled beaches. The oil
would have crossed the west edge of the Gulf Stream at midnight,
and then come ashore between 0800 and noon on 8 August. Thus,
the likely spill occurred between 1900 and 2300 on 7 August. This
range of spill times was run with the model to determine the
sensitivity of the injury results to the assumed spill time. The spill
was assumed to occur continuously over 1 hour along a straight
track line (French McCay et al., 2001). To determine impacts to
biological assemblages present within the area of modeled impact,
the SIMAP model was run using the biological assemblage
database from the Natural Resource Damage Assessment Model
for Coastal and Marine Environments, NRDAM/CME for this
portion of coastal Florida (ASA, 1996).
Fort Lauderdale Mystery Spill NRD Claim: The trustees determined
and quantified injuries in four main categories: 1) recreational
beaches, 2) sea turtles, 3) water column injuries to fish and
invertebrates, and 4) seabirds. Based on this work, the trustees
claimed that the mystery spill incident caused the loss of public
beach use and significantly injured sea turtles, fish and invertebrates,
and seabirds. The trustees used restoration costs as the
measure of damages for injuries to the ecological resources
(i.e., “service-to-service” scaling approach). These costs include
the costs to design, permit, construct, and monitor the restoration
projects. Injuries and losses to the use of public beaches were more
cost-effectively quantified in terms of lost value to resource users.
For this category of injury, the trustees proposed to conduct
restoration actions by using recovered funds to provide replacement
services to resource users—i.e., “value-to-cost” scaling
approach (Conner and Wieczynski, 2003). A listing of determined
injuries and proposed restoration projects, including respective
costs, to compensate for these injuries is provided in Table 1.
NATURAL RESOURCE DAMAGE ASSESSMENT 3
Challenges in Adjudicating a Mystery Spill Claim: The NPFC
NRD Claims Division is tasked with two major functions: 1) paying
claims for natural resource damages that comply with Oil
Pollution Act of 1990 (et seq.), and applicable state and federal
laws such as NEPA, the damage assessment regulations at 15 CFR
990 and the Coast Guard’s claim regulations at 33 CFR 136; and
2) exercising a fiduciary responsibility to the source of claim
funding, the OSLTF. Accordingly, the NPFC pays for, inter alia,
reasonable assessment costs and the costs required to implement a
restoration plan that restores, rehabilitates, replaces, or acquires
the equivalent natural resources injured by an oil spill. Functionally,
it is the job of the NRD Claims Division to evaluate submitted
natural resource damage claims to verify that claimed assessment
costs are reasonable and a submitted restoration plan complies
with these state and federal requirements.
Because claims must comply with OPA -and other- regulatory
and statutory requirements, claim adjudicatory actions by NPFC
must be consistently applied to all NRD claims. Such consistent
evaluation/verification efforts are uniquely challenging when
adjudicating mystery spill natural resource damage claims where
much of the basic spill information (e.g., responsible party identification,
spill scenario and oil composition), having a material
affect on spill impacts and claimed costs, is not known. However,
federal, state and tribal trustees of natural resources, as well as the
NPFC (having NRD claim adjudication authority) are mandated
under OPA to address natural resource damages resulting from oil
spills, including mystery oil spills, despite this lack of critical
information. To comply with this mandate, trustees are forced
to construct “best guess” estimates regarding spill scenario, fate
and effect details when developing mystery spill NRD claims.
Correspondingly, NPFC must evaluate the reasonableness of these
derived spill fate and effects approximations, as well as corresponding
restoration plans to compensate for these injuries, to
determine whether such NRD claims should be paid or not. What
does NPFC require in mystery spill NRD claims to effect claim
verification when field-derived data supporting the claim are
lacking? The answer lies in the provision of technically defensible
rationales that support trustees’ claim. The more supporting
rationale (grounded in science, economics and engineering) and
reasonable explanation supplied by a NRD claimant to NPFC, the
more straightforward—and successful—the claim adjudication
process is likely to be.
For example, in the FLMS NRD claim, NPFC found the underlying
basis (rationale) for the spill scenario to be reasonable; i.e.,
based on a reasonably implemented application of SIMAP, a peer
reviewed and commonly used spill fate and effects model. Conversely,
NPFC found that the use of PEPCO IFO as a surrogate for
PAH composition, a major driver in modeled oil toxicity in the
SIMAP model and, thus, a critical modeling datum input, was not
well supported in the claim or in the modeling report found in the
Administrative Record. Hence, NPFC researched the relative PAH
characteristics of 25 comparable intermediate fuel oils and found
that the use of the PEPCO/No. 5 fuel oil, with a 3.3% PAH fraction
was reasonable, and fell well within the range of these highly
variable types of fuel oils, as did the 23.4% volatile aromatic
(BTEX) fraction. Further, NPFC found that the trustees reasonably
scaled restoration projects and that the capability of most of the
projects to restore injured resources was well supported in the
claim with a clear rationale for most of these projects provided.
However, for bird restoration, NPFC questioned whether concomitant
benefits existed for the mangrove restoration project to
restore lost bird resources as well as lost water column resources.
The major seabird species predicted by modeling as impacted by
this incident included double-crested cormorants and, to a lesser
extent, pelicans. Specifically, mangrove habitat provides nesting
habitat for these, and other, seabird species. NPFC considered
if mangrove habitat creation proposed for restoration of water