CHAPTER 11 NATURAL RESOURCE DAMAGE ACTIONS UNDER CERCLA1
| Jurisdiction | United States |
(May 1990)
NATURAL RESOURCE DAMAGE ACTIONS UNDER CERCLA1
James A. Poore III
Poore, Roth & Robinson, P.C.
Butte, Montana 2
I. BACKGROUND: A RESPONSE ACTION
II. LIABILITY FOR NATURAL RESOURCE DAMAGE ACTIONS
A. DAMAGES EXCLUDED FROM LIABILITY
B. LIMITATIONS ON LIABILITY
C. STATUTORY DEFENSES
III. NATURAL RESOURCE DAMAGE REGULATIONS
A. AN OVERVIEW
B. RESIDUAL INJURIES NOT AMELIORATED IN RESPONSE ACTION
C. COST EFFECTIVENESS
IV. DAMAGE ASSESSMENT PHASES
A. PREASSESSMENT
B. TYPE B ASSESSMENT
1. INJURY DETERMINATION
2. QUANTIFICATION
a. BASELINE
b. SERVICE REDUCTION
c. TECHNICAL FEASIBILITY
3. DAMAGE DETERMINATION
a. RESTORATION METHODOLOGY
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b. USE VALUE METHODOLOGY
c. TECHNICAL FEASIBILITY
d. DOUBLE COUNTING
C. POST ASSESSMENT
V. OHIO
A. BACKGROUND
B. RESTORATION
VI. ACUSHNET CASES
A. JURY TRIAL
B. DIVISIBILITY: ENACTMENT DATE
C. DIVISIBILITY: AMONG DEFENDANTS/PERMITS
VII. DAMAGE REDUCTION
A. ECONOMIC THEORY
B. CERCLA AND SARA
C. THE LEGISLATIVE HISTORY
D. REGULATIONS
E. CASE LAW
VIII. NATURAL RESOURCE DAMAGES—THE GENERAL RULES
IX. CONCLUSION
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Like many a Court before it, this Court cannot forbear remarking on the difficulty of being left compassless on the trackless wastes of CERCLA.3
In the wake of Love Canal, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)4 in December 1980. This act became commonly known as Superfund. CERCLA was extended and expanded by the Superfund Amendments and Reauthorization Act (SARA)5 on October 17, 1986. These statutes and accompanying regulations provide for identification of sites where hazardous substances are released into the environment, cleanup of the releases, and compensation for damage to natural resources.
There are few reported decisions to date concerning recovery under CERCLA § 107(a)(4)(C)6 for natural resource damages. But because the Superfund may not be used to compensate for natural resource damages unless all administrative and judicial remedies
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including suits against potentially responsible parties have been exhausted,7 the amount of litigation concerning damages to natural resources will likely increase.
Most lawsuits to date under CERCLA8 have sought to recover cleanup costs. But liability cases for residual injury to natural resources may not only become as prevalent but also as costly.9 For example, in United States v. Shell Oil Co., the government sued for both its response costs and damages to natural resources at the Rocky Mountain Arsenal in Colorado, seeking damages of $1.8 billion.10
Although many other issues remain unresolved, the critical focus in any natural resource damage action is on the method and manner of damage assessment. This paper examines the statutory background of natural resource damage assessment, the natural resource damage regulations and recent case law. It also examines a basis for reducing natural resource damages and the relationship between the common law and CERCLA's natural resource damage provisions.
I. BACKGROUND: A RESPONSE ACTION
It may be helpful, at the outset of a discussion of natural resource damage liability and assessment to briefly review CERCLA response actions. Any site remedial action, removal action, or cleanup11 pursuant to CERCLA is termed a response action.12
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A removal action13 is the short-term action taken to respond promptly to an urgent need such as the threat of a release which might cause damage to public health, welfare, or the environment. A removal action may be undertaken at any time by the EPA or pursuant to an administrative consent order with a potentially responsible party (PRP)14 or by order to the PRP. A removal action may include fencing, provision of alternative water supplies, or temporary evacuation.15 The EPA is authorized to undertake a removal action, consistent with the national contingency plan (NCP)16 whenever there is a release or a threatened release of a hazardous substance into the environment or the release or threatened release of a pollutant or a contaminant17 which may present an imminent and substantial danger to the public health or environment.18 This removal action should contribute to the long-term cleanup of the site.19
A remedial action is undertaken in the event of a release or threatened release of a hazardous substance to prevent or minimize the release of hazardous substances so that they do not migrate to cause present or future danger to the health, welfare, or environment.20 This action is undertaken after the completion of a remedial investigation/feasibility study (RI/FS). A remedial action may include cleanup of released hazardous materials, collection of leachate, onsite treatment, or provision of alternative
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water supplies. This action results in long-term site cleanup.
A CERCLA action generally is initiated by the reporting of a hazardous waste site or illegal dumping site to the EPA or a state or local agency. These sites are entered on CERCLIS, the EPA's computerized inventory database. The EPA collects information about the site from its files and other sources. This information is used to develop a preliminary assessment of the hazardous nature of the site. If the preliminary assessment indicates a potential threat to human health or the environment a reconnaissance visit to the site is made. Based on the data gathered during this preliminary assessment/site inspection, the site is scored using the hazard ranking system.21
A remedial investigation (RI) is the next step in the CERCLA response action process. This part of the site remediation process provides for thorough field study involving extensive sampling and analysis. A feasibility study (FS) is undertaken to evaluate alternative remedial actions. The lead agency, or in some circumstances the PRP, conducts the RI/FS which results in a written report.
Following the completion of the RI/FS and the passing of the comment period, the EPA issues a record of decision (ROD) for the site based on the RI/FS, comments, regulations, and other requirements. The ROD selects the remedial action and becomes part of the administrative record for review. The "applicable or relevant and appropriate regulations" (federal and state ARARs) are used to determine "how clean is clean" for the site.22
The EPA obtains implementation of the remedial action by expending money from Superfund to hire contractors, entering into a consent decree with the responsible parties, and/or ordering responsible parties to perform the cleanup. Once a permanent remedy is achieved for the site it is delisted from the national priorities list. Responsible parties may be sued by the EPA or the state for recovery of response costs accrued in cleaning up the site.
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At a mining, smelting, or milling site,23 a removal action could involve the temporary relocation of persons affected by groundwater contaminated by lead or arsenic from mine tailings. Fencing of tailings to prevent access is another possibility.
The long-term remedial action may include removing mine wastes, installation of water treatment facilities, stream dredging to remove toxic sediments, or dike or dam reenforcement to prevent exposure or release during flooding.
The typical characteristics of a mining site24 are different from many hazardous waste sites. A mining site is typically geographically larger with a high volume of waste which may be low in toxicity in relation to that volume. The hazardous substances which may be of concern in these wastes are generally confined to heavy metals associated with acid mine drainage, wind-blown dust and/or surface runoff, leaching from tailings impoundments, waste rock, solution ponds, and leach piles. Injury, if any, to humans may be by the primary exposure pathways: long-term inhalation of metal-laden dust; ingestion of contaminated groundwater; and ingestion of metal contaminated soil by children. But because aquatic life generally has a much lower tolerance for metals uptake than humans, it may be injury to aquatic life rather than threat to human health which prompts cleanup. Amelioration of the threat at the site may require compliance with the more stringent cleanup standards that exist for aquatic life than those that exist for humans.25
Remedial action at a mining site may include, as at other sites, material containment or capping, water treatment, material removal, and perhaps water diversion.26 These actions constitute part of the response action. These response activities ultimately culminate in a suit to recover response costs from the responsible party for cleanup of the site which was done to eliminate or minimize danger to human health and environment.
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A natural resource damage action seeks, in part, to recover damages (the monetary value) for residual injuries to natural resources. Residual injuries are those injuries not ameliorated or that may not be ameliorated in the response action. The natural resource damage action culminates much like the response action: in a suit by the trustee to recover natural resource damages for injury to natural resources. Liability for damages to natural resources is in addition to liability for response costs.27
II. LIABILITY FOR NATURAL RESOURCE DAMAGE ACTIONS
Liability for response costs is premised on the incurrence of those response costs. Liability for damages to natural resources is premised on injury to the natural resources.28 CERCLA29 sets out the categories of responsible persons who shall be liable for damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss.
Persons who may be held liable for natural resource...
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