Natural Resource Trustees
CERCLA and OPA authorize the United States, States, and Indian Tribes to act on behalf of the public as Natural Resource Trustees for natural resources under their respective trusteeship [CERCLA §107(f)(1); OPA §1006(c)]. OPA also authorizes foreign governments to act as Trustees [OPA §1006(b)(5)].
Trustees often have information and technical expertise about the biological effects of hazardous substances, as well as the location of sensitive species and habitats that can assist EPA in characterizing the nature and extent of site-related contamination and impacts. Coordination at the investigation and planning stages provides the Trustees early access to information they need to assess injury to natural resources. This assists Trustees in making early decisions about whether restoration is needed in light of the response actions, and should generally result in more efficient settlement negotiations and an opportunity to address all liabilities at the site simultaneously (OSWER Directive 9200-4.22A; CERCLA Coordination with Natural Resource Trustees, 1997). To obtain specific examples of resources under the trusteeship of Federal, State, Tribal, and other Trustees, click here.
CERCLA §107(f)(2)(A) requires the President to designate in the National Contingency Plan (NCP) Federal officials who are to act on behalf of the public as Trustees for natural resources under Federal trusteeship. Section 300.600 of the NCP designates the Secretaries of the following Cabinet Departments to act as Trustees for the natural resources, subject to their respective management or control:
- Department of Agriculture (USDA);
- Department of Commerce (DOC);
- Department of Defense (DOD);
- Department of Energy (DOE);
- Department of the Interior (DOI); and
- Other agencies authorized to manage or protect natural resources.
Specific information about each of the Secretary's responsibilities can be found in the NCP at 40 CFR §300.600 or in the links supplied for each Cabinet Department above.
State Trustees shall act on behalf of the public as Trustees for the natural resources within a State's boundaries or for resources belonging to, controlled by, or appertaining to the State [40 CFR §300.605]. State official(s) are designated by the Governor of each State to act as Trustee for the State's Trust Resources, which include surface water and ground water. The designated official is normally the head of an agency responsible for environmental protection or fish and wildlife management, although the Governor can delegate responsibility to any entity [OPA §1006(b)(3)]. States may designate more than one Trustee agency.
Tribal Chairmen (or heads of the governing bodies of Indian Tribes), or persons designated by Tribal officials, shall act as Tribal Trustees for natural resources belonging to, managed by, controlled by, or appertaining to the Indian Tribe, or held in trust for the benefit of such Indian Tribe, or belonging to a member of an Indian Tribe, if such resources are subject to a trust restriction on alienation [40 CFR §300.610]. The Secretary of the Interior may act as Trustee on behalf of a Tribe at the Tribe's request.
Under OPA, foreign officials can also act as Natural Resource Trustees. The head of a foreign nation must pick the official to act as Trustee [OPA §1006(b)]. The foreign Trustee can act on behalf of the foreign government only for natural resources "belonging to, managed by, controlled by, or appertaining to such foreign government" [OPA §§1006(a)(4), (b)(5)].
There are a number of conditions that must be fulfilled before a foreign claimant can bring an action in a Federal court under OPA. These conditions essentially require that the origin of the spill had a strong connection with the U.S. The foreign claimant must demonstrate that it has not received compensation for removal costs or NRD and, except for Trans-Alaska Pipeline Oil spilled in Canada, that recovery under OPA is provided for in a treaty or executive agreement or by reciprocal right [OPA §1007].