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Natural Resource Damage Assessment: Methods and Cases

Natural Resource Damage Assessment: Methods and Cases


B. CERCLA NRD Claims CERCLA allows the federal government and the state government--acting on behalf of the public--and Indian tribes to assert claims for NRDs that result from the “release” of a “hazardous substance.” CERCLA § 107(a)(4)(C). Private entities may not bring an NRD claim under CERCLA. See Lutz v. Chromatex, 718 F. Supp. 413, 419 (M.D. Pa. 1989). “Natural resources” are defined in the Act as “land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, . . . any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe.” CERCLA § 101(16). Accordingly, “purely private” property does not fall within the definition of natural resources and an NRD claim cannot be brought for damages to purely private property. See Ohio v. U.S. Dep’t of the Interior, 880 F.2d 432, 460 (D.C. Cir. 1989). But to be deemed “natural resources” under this Act, the Government need not own the resources; “a substantial degree of government regulation, management, or other form of control” over the property will be sufficient to make the natural resource damages provisions apply. See id. at 461. CERCLA does not specify which resources are under state trusteeship and which resources are under federal trusteeship. That is, there may be times where there are “coexisting or contiguous natural resources or concurrent jurisdictions.” As a result, multiple trustees may have a claim with respect to a single NRD incident. When this happens, trustees must coordinate their claims as provided in 40 C.F.R. § 300.615. A “release” is defined under CERCLA to include “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” CERCLA § 101(22). The definition of hazardous substance under CERCLA includes both what has been designated as hazardous under CERLCA as well as a number of substances designated as hazardous, toxic, or an imminent hazard under other statues. In particular, a hazardous substance under CERCLA is defined as: (1) anything designated as hazardous under CWA § 311(b)(2)(A) (2) anything designated as hazardous under RCRA § 3001 (unless regulation of the waste has been suspended by Congress) (3) any toxic pollutant listed under CWA § 307(a) (4) any hazardous air pollutant designated under the Clean Air Act § 112 (5) certain imminently hazardous chemicals under the Toxic Substances Control Act § 7 (6) anything designated as a hazardous substance under CERCLA § 102. See CERCLA § 101(14). Petroleum, including oil, gasoline, and natural gas, is excluded from this definition. See id. Therefore, NRDs cannot be recovered under CERCLA for oil spills or any other release of petroleum, unless the petroleum is contaminated with other hazardous substances not normally found in petroleum. See In re Montauk Oil Trans. Corp., 1996 WL 340000 (S.D.N.Y. June 19, 1996); Robert L. Glicksman, Pollution on Federal Lands IV: Liability for Hazardous Waste Disposal, 12 J. Envtl. L. 233, 243-45 (1994). 83

Once there is a “release” of a “hazardous substance,” the trustee must show that there has been “injury to, destruction of, or loss of natural resources resulting from such a release.” CERCLA § 107(a)(4)(C). The terms injury, destruction, and loss are not defined in CERCLA. The Department of the Interior (DOI), however, has defined “injury” in its natural resource damage assessment regulations as “a measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge of oil or release of a hazardous substance, or exposure to a product of reactions resulting from the discharge of oil or release of a hazardous substance.” 43 C.F.R. § 11.14(v). The regulations allow proof of injury either by using empirical evidence of an adverse change in a particular case (e.g., increased tumors) or by relying on a prior regulatory determination such as water quality standards, which make the presence of a hazardous substance in excess of that prescribed limited injury per se. The courts have not settled on what constitutes “resulting from such release.” The D.C. Circuit has explained that “CERCLA left it to Interior to define the measure of damages in natural resource damage assessment cases . . . . While the statutory language requires some causal connection between the element of damages and the injury--the damages must be ‘for’ an injury ‘resulting from a release of oil or a hazardous substance’--Congress has not specified precisely what that causal relationship should be.” Kennecott Copper Utah Corp. v. U. S. Dep’t. of Interior, 88 F.3d 1191, 1224 (D.C. Cir. 1996). As such, the D.C. Circuit later upheld regulations that allow for the use of computer models to determine what injuries “result from a release,” finding that the reliance on computer models was reasonable under the statute. See National Ass’n of Mfrs. v. U. S. Dep’t of Interior, 134 F.3d 1095 (D.C. Cir. 1998). Another important part of an NRD claim is figuring out who is liable under CERCLA. Subject to the requirement that there must some causal connection between the release and the injury, the potentially liable parties, more commonly known as PRPs, include the following: current owners/operators of the site; past owners/operators of the site if “disposal” occurred during their ownership/operation of the site; arrangers for disposal or treatment of the hazardous substance; and transporters of the hazardous substances who selected the site to which the substances were taken. The first category of PRPs, the present owner/operator of the site, is liable even if the owner/operator had no involvement with or responsibility for the release. It is useful to note that federal, state, and municipal governments are all included in the definition of owners and operators. In fact, CERCLA § 120(a)(1) expressly waives the federal government’s sovereign immunity with respect to NRD suits. There are some limited exceptions to liability available to governments if they acquired the land involuntarily. See CERCLA § 101(20)(D) (exempting units of State and local governments from the definition of owner or operator if the unit acquired ownership involuntarily such as through bankruptcy or tax delinquency); CERCLA § 101(35)(A)(ii) (providing a defense to liability for governmental entities that acquire land through escheat, eminent domain, or the like). There are also several other limited defenses to liability available to all categories of PRPs, including current owners and operators. See CERCLA § 101(35)(A) (outlining the innocent landowner defense and the inheritor defense); CERCLA § 107 (providing an exemption to liability for an act of God, an act of war, and federally permitted releases). 84

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