The Commonwealth and the U.S. departments of Justice and Interior have announced a proposed settlement to resolve natural resource damage claims stemming from the release of mercury from the former Du Pont facility in Waynesboro. The settlement is valued at about $50 million.

In addition to a cash payment of just more than $42 million, Du Pont will fund the design and implementation of significant renovations at the Front Royal Fish Hatchery, estimated to cost up to $10 million. The settlement terms are outlined in a proposed consent decree filed in federal court in Harrisonburg, Virginia.

Du Pont will provide the funds to government natural resource trustees, who will oversee the implementation of projects compensating the public for the natural resource injuries and associated losses in ecological and recreational services, such as fishing access.

A draft restoration plan and environmental assessment (RP/EA) is available for a 45-day comment period. The plan was developed with input from stakeholders and provides the state and federal trustees' preferred restoration alternative to best compensate the public for the injured natural resources.

From 1929 to 1950, mercury was released to the South River from the facility. Over time, mercury was released from the facility and transported downstream to the Shenandoah River and its South Fork. Flooding also has deposited mercury on the floodplains associated with these river reaches. 

Mercury is a toxic pollutant and exposure can have adverse effects on biota (e.g., reduced reproductive success in birds). Sampling in the affected stream segments indicates mercury concentrations in biota are elevated compared to background levels.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Department of Environmental Quality and the U.S. Department of the Interior are trustees for natural resources injured by the release of mercury from the facility. The trustees have the authority to assess injury to Virginia’s natural resources and seek appropriate compensation for those injuries.

The process through which the trustees evaluate injuries and determine appropriate compensation is called “natural resource damage assessment” (NRDA). The goal of the NRDA is to restore injured resources and to compensate the public for losses pending achievement of restoration. The assessment has been conducted cooperatively with the responsible party, E.I. du Pont de Nemours and Co.

Conforming to the NRDA process, a damage assessment plan was published in 2011. The plan serves to ensure that the NRDA is conducted in an efficient and cost-effective manner, and describes the trustees’ proposed approach to determining injury and appropriate compensation. The plan describes the approach to the injury determination, injury quantification and damage determination phases of the assessment. The trustees encourage active participation through the public comment process as the matter moves toward resolution.