Frequently Asked Questions (FAQs) about Natural Resource Damage (NRD) Claims

Do we have to submit the NRD claim to the Responsible Party?

Yes. The Oil Pollution Act (OPA) requires claimants to first submit their claims to the Responsible Party (RP). If the RP denies liability or fails to settle within 90 days, you may then present the claim to the NPFC. You must include documentation of your submission to the RP as well as any other communications with the RP with your claims submission to the NPFC.

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What if there is no Responsible Party?

If there is no RP, such as in the case of a mystery spill, you must describe the circumstances of the spill and explain why an RP was not identified.

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How long do we have to submit claims after an incident?

For OPA-based damage claims, you have three years after the date on which the injury and its connection with the incident were reasonably discoverable to submit a claim. However, if you conducted the assessment in accordance with the damage assessment regulations (15 CFR 990), you have three years from the date the assessment was completed.

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What are the types of NRD funding available from the NPFC?

Natural Resource Trustees can request funding from the NPFC for:

  • Preassessment activities (initiation of natural resource damage assessment),
  • Natural resource damage assessment (NRDA) and/or restoration, and/or
  • Emergency restoration.

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What is the difference between an Initiate Funding Request and a NRD claim?

An initiate funding request provides a mechanism by which funds needed by trustees to initiate preassessment activities immediately following an oil spill can be reimbursed. A natural resource damage assessment claim is a trustee request for funding to cover expenses incurred (or expected to be incurred) from injury assessment and/or restoration activities.

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Can a State and/or Tribal Trustee request initiate funding or submit a NRD claim without a Federal Trustee?

Any Tribal, State, or Federal Natural Resource Trustee can submit NRD claims to the NPFC for damages resulting from an oil spill incident. However, only a Federal Lead Administrative Trustee (FLAT) may submit requests for initiate funding; non-Federal Trustees are encouraged to work with the FLAT on preparing and submitting the initiate request.

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Are there published guidelines or procedures for conducting natural resource damage assessements (NRDAs)?

Yes. The regulations at 15 CFR 990 provide a useful (but not required) framework for conducting NRDAs. Further, NOAA has published guidance documents for conducting NRDAs, which are available at // under Oil Pollution Act Guidance.

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What is the Daubert Standard, and is this standard used by the NPFC during claim adjudication?

The Daubert Standard is used in federal courts to establish scientific validity of evidence. While there is no definitive checklist of criteria, and much is left up to the discretion of the judge, there are several "pertinent issues" that are recommended to be taken into account and are mentioned in the published court opinion [Daubert v. Merrell Dow] on the matter. These include:

  • Whether the methods upon which the testimony is based are centered upon a testable hypothesis;
  • The known or potential rate of error associated with the method;
  • Whether the method has been subject to peer review;
  • And whether the method is generally accepted in the relevent scientific community.

It is also acknowledged in the court opinion that, "in some instances, well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published." This further emphasizes the discretion given to the judge in determining scientific validity. The principles of the Daubert Standard are often used by the NPFC during a claim adjudication to confirm the scientific validity of a claim. However, as stipulated by the court opinion, consideration is still given to "well-grounded and innovative theories" that may not have been subject to an accepted peer review due to the unpredictable and often unique circumstances of oil spills.

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How is "rebuttable presumption" obtained?

In order to obtain "rebuttable presumption" for claim adjudication, the regulations at 15 CFR 990 need to be followed during the natural resource damage assessment (NRDA) process. The regulations at 15 CFR 990 require that documentation be provided that demonstrates an appropriate and defensible NRDA was conducted. Examples of documentation commonly produced during an NRDA that may demonstrate adherence to 15 CFR 990 regulations can be found in the NRD Funding Guidelines. However, there are no requirements above and beyond demonstration of adherence to 15 CFR 990 that must be met to obtain a rebuttable presumption.

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