Transcript NRD FUNDAMENTALS

NATURAL RESOURCE
DAMAGES
FUNDAMENTALS
Joan P. Snyder
Stoel Rives, LLP
Presented to Oregon Association of
Environmental Professionals
October 9, 2003
Natural Resource Damages
• Under federal Superfund—”injury to, destruction of, or loss of
natural resources, including the reasonable costs of assessing
such injury, destruction or loss resulting from” a release of a
hazardous substance. 42 USC 9607(a)(4)(C).
• Under Oregon (mini-Superfund) law—”damages for injury to or
destruction of any [public] natural resources caused by a
release.” ORS 465.255(1).
• Oregon has separate provision for damages from injury, death,
contamination or destruction of fish or wildlife resulting from
pollution (e.g., fish kills). ORS 468B.060(1).
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Natural Resource Damages
• Under federal Oil Pollution Act (OPA, 33 USC
2702(b)(2))
– Damages to trustees for “injury to, destruction of, loss of or
loss of use of, natural resources, including the reasonable
costs of assessing the damage” from a discharge of oil.
– Damages to an affected claimant for injury to, or economic
losses resulting from, destruction of real or personal
property; for loss of subsistence use of natural resources;
and for loss of profits or earning capacity.
– Damages to state or federal governments for loss of
revenues from taxes or royalties, damages, and damages
for the state’s net costs of providing increased public
services caused by the oil discharge.
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Examples
• Exxon Valdez/New Carissa—oil
•Commencement Bay/Portland Harbor—varied,
historic contaminants
•Coeur D’Alene Basin—mine tailings
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Use of Damages
• Must be used “only to restore, replace of acquire the
equivalent of” the damaged resource. 42 USC
9607(f)(1).
• Purpose of restorative work is to return the resources
to their “baseline” condition, which is the “physical,
chemical, or biological properties that the injured
resources would have exhibited or the services that
would have been provided” absent the release of
hazardous substances. 43 CFR 11.82(b)(1)(I).
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Important Qualifiers:
Under Superfund, Oregon mini-Superfund and OPA—
applies only to the damages “caused by” or “resulting
from” a release.
Under CERCLA: “There shall be no recovery where
such damages and the release of a hazardous
substance from which such damages resulted have
occurred wholly before December 11, 1980.” 42 USC
9607(f)(a).
Federal claims must be brought by the federal, state
and tribal trustees for the resources at issue, and there
is no double recovery.
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How Do Natural Resource Damages Relate to the
Environmental Risk Remedied by a CERCLA
Remedial Action?
No existing
impairment
Impairment due to
habitat destruction
“Restoration Plus”
baseline
NRD
Impairment due to releases
of hazardous substances
1950
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1980
Injury by hazardous
substances
Restoration
2003
Presumed restoration
start date
How are NRD Determined?
• Agency-down enforcement-driven—Commencement
Bay
– Pursuant to OPA (NOAA) or CERCLA (DOI) assessment
regulations (which has a rebuttable presumption of
correctness)
• Litigation—e.g., Coeur D’Alene, Montrose
• Cooperative NRDA Process—Portland Harbor?
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Timing: When are NRD
Determined?
• Historical View: NRD Assessment is what comes
after CERCLA remedial action.
• Current Trend: NRDA can and should be conducted
in concert with RI/FS for remedial action.
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Have we answered the legal and scientific
questions necessary to determine NRD?
“While there is ample room for disagreement on the
facts and the law as it is to be applied to this case, it is
undisputed that [the case of NRD for the Coeur D’Alene
basin] is unique in its size, its history and its complexity.
The case is of great importance and calls for the
exercise of the greatest care and caution in its
consideration, a task that is very difficult when expert
witnesses with impeccable qualifications reached
opposite conclusions on almost every issue.”
--Coeur D’Alene Tribe and USA v. Asarco, et al. (9/03/03 Opinion)
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Have we answered the legal and scientific
questions necessary to determine NRD?
In the Fox River,
USFWS valued NRD at $176-333 million.
Wisconsin Department of Natural Resources valued it at
$55 million.
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Is a court the right place to
determine NRD?
“After listening to approximately 100 witnesses, 78 days of
trial and having reviewed 8,695 exhibits . . . it is the judgment
of this Court that . . . the liability of certain responsible parties
. . . is evident, but the Defendants are correct when they
argue that there has been an exaggerated overstatement by
the Federal Government and the Tribe of the conditions that
exist and the source of the alleged injury to natural
resources. . . . [T[he Court finds its hands are often tied and
‘justice’ is dictated by the statutes passed by politicians who
at the time could not have imagined the factual scenario
pending before this Court.”
--Coeur D’Alene Tribe and USA v. Asarco, et al. (9/03/03 Opinion)
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