Natural Resource Damages What are the States Doing

Transcription

1 Natural Resource Damages What are the States Doing December 1, 2006 Presented by: Ken Lederman Riddell Williams P.S.

2 Goals Focus on new developments, techniques, and opportunities Report on significant litigation developments Draw attention to programs with interesting perspectives and policies NOT a 50-state survey Riddell Williams P.S. 2

3 Washington

4 Washington Oil Spill Prevention Program Dedicated to NRD Using HEA for spill-based assessments Hazardous Waste NRD Program still developing No NRD settlements yet Puget Sound Restoration Initiative Target contaminated aquatic sites for early cleanup Combine aquatic cleanup with adjacent upland source removal and source control. Riddell Williams P.S. 4

5 Washington Riddell Williams P.S. 5

6 Washington Bremerton Naval Shipyard PRP is U.S. Navy SOL about to run - working on tolling agreement NOAA assessment under Puget Sound Initiative Town of Skykomish ( First MTCA-only NRD site (petroleum) Dispute regarding remedy and restoration Commencement Bay Riddell Williams P.S. 6

7 Hanford Yakama Lawsuit Largest & Most Contaminated Site in U.S. 450 billion gallons of contaminated wastes dumped into unlined soil trenches 1/3 of 177 underground storage tanks have leaked Over 1 million gallons of High-Level Nuclear Waste contaminating groundwater near the Columbia River Federal Trustee (DOI) + Federal PRP (DOE) Dispute over NRD Injury Assessment Riddell Williams P.S. 7

8 Hanford Yakama Lawsuit State / Tribal Arguments RODS may not be out for decades Look at restoration options before RODS are finalized Appropriate for a $60 billion cleanup Consistent with Department of Energy policy Relief Requested Declaratory judgment that the U.S. is liable for the cost of assessment Riddell Williams P.S. 8

9 Hanford Yakama Lawsuit US filed motion to dismiss in October Claim not ripe because EPA has not issued final RODS RODS not expected for most units until 2015 Issue of Reasonableness Open-ended funding commitment Riddell Williams P.S. 9

10 New Mexico

11 New Mexico NRDA Restoration Program through State Office of Natural Resource Trustee 8 active sites at various stages of assessment and restoration GO TO WEBSITE Riddell Williams P.S. 11

12 New Mexico v. G.E. Common Law NRD Claim QUESTION #1 - Was there any residual contamination outside scope of the ongoing remediation? ANSWER NOT YET Arguing residual injury before cleanup was done Backdoor challenge to EPA remedy barred by 9613(h) Dismissed for want of jurisdiction Riddell Williams P.S. 12

13 New Mexico v. G.E. QUESTION #2 Was there an identifiable loss of use of the resource? ANSWER NO No water available for appropriation anyway No rejections due to contamination 2 nd well activated in timely manner Case-specific - not a rejection of loss of use theory Riddell Williams P.S. 13

14 New Mexico v. G.E. QUESTION #3 Does CERCLA s NRD scheme preempt state remedies designed to achieve anything other than restoration, replacement or acquisition of the equivalent of a contaminated resource? ANSWER YES Requested Remedy (unrestricted $$) inconsistent with goal of promoting cleanup Common law claims fine, so long as the only remedy is restoration Riddell Williams P.S. 14

15 New Mexico v. G.E. Precedent setting? Limited to facts? Impact on outside counsel / contingent fees? Negotiating power? Why Not Follow the Rules? Illusory Statute of Limitations? Defining Lost? Riddell Williams P.S. 15

16 New York

17 New York Dept. of Environmental Conservation designated as State Trustee (with a specific NRD unit) 38 active cases, $40M recovered Hudson River PCBs Hudson River Enviro Trustee Council created in 1997 Hudson River NRDA Plan (September 2002) Analysis of Habitat Loss + Resource Loss Loss to navigation, parks, and fishing Surface water resource damage assessment released this year Riddell Williams P.S. 17

18 New York Working to incorporate NRDA with state remedial program Hoping to avoid remedy-based damages EPA funding has been a significant burden Assessment & Valuation Options are on the table (cash, restoration project, etc...) Off-site remediation ( commodity approach ) Focus on restoring the damaged resource Strong nexus required Riddell Williams P.S. 18

19 Texas

20 Texas Texas Oil Spill Prevention and Response Act MOU between Trustee agencies General Land Office + Parks & Wildlife + TCEQ Significant Accomplishments w/ NO LITIGATION Using HEA Exclusively PRP does the restoration Willing to allow restoration outside the affected resource Willing to consider a mitigation bank Riddell Williams P.S. 20

21 Texas Injury assessment performed concurrently with response for NRDA cases Site-specific Memorandum of Understanding (MOU) between Trustees, PRPs, and Response Agency Texas Risk Reduction Program (TRRP) Requires Ecological Risk Assessment (ERA) for remedial programs Perform Ecological Services Analysis (ESA) for all remedies Compensatory Ecological Restoration (CER) If there is residual injury, propose CER to balance it out TRRP MOU with Trustees Adopted as a Rule (30 T.A.C. Section 7.124) Riddell Williams P.S. 21

22 Texas CER is NOT a Release of NRDA liability Damage Assessment and Restoration Plan (DARP) CER expanded to compensate for past injury TOTAL LIABILITY RESOLUTION Riddell Williams P.S. 22

23 Texas State with the Most Aggressive Focus on Cooperation-Based Restoration Addressing restoration concurrently with remedy Residual Contamination = Compensatory Restoration Avoiding litigation Cooperating and Coordinating between Trustees, PRPs, and Response Agency Achieving Finality (No Secondary Cleanup) Riddell Williams P.S. 23

24 Louisiana

25 Louisiana LA Oil Spill Coordinator s Office (LOSCO) Established Regs for NRD Assessment Mediation Encouraged (LA Rev. St. 30:2480(c)(9)) Oil Pollution is focus Regional Restoration Planning Program Issuing Programmatic EIS in January 2007 Hopes to pool money to deal with more expansive and expensive projects Riddell Williams P.S. 25

26 Louisiana Project Selection Interested in off-site restoration Not confined to actual impacted area Nexus does NOT equal proximity Using HEA Riddell Williams P.S. 26

27 Louisiana Katrina NRDA not paramount when dealing with catastrophe Basic needs trump natural resource restoration Most trustees are tasked with recovery efforts Questions How do you evaluate a resource that has fundamentally changed? Will NRD return to priority status? Worsening of pre-existing cleanup sites? Act of God Defense? Statute of Limitations? Riddell Williams P.S. 27

28 California

29 California Office of Spill Prevention and Response Resource Equivalency Analysis (REA) Evaluating NJ Approach to GW Working towards a Mediation model Cash-out and restoration projects Pioneered use of Trustee Councils Riddell Williams P.S. 29

30 Missouri

31 Missouri Bankruptcy is a primary focus Actively integrating NRD into remedy selection Cooperative agreements to avoid litigation PRP Dependent Using HEA Using NJ Model for Groundwater Riddell Williams P.S. 31

32 Colorado

33 Massachusetts

34 Final Thoughts HEA / REA Stagnant DOI Regulations NJ Groundwater Model Nexus + Environmental Justice Issues Cooperation vs. Industry Push-Back Federal Govt. as Trustee and Liable Party Mediation Riddell Williams P.S. 34

35 Questions? Please contact me any time with additional questions. Ken Lederman